CCR2003150.
COMMON COUNCIL - CITY OF MUSKEGO
RESOLUTION #150-2003
APPROVAL OF FINAL PLAT, SUBDIVIDER'S AGREEMENT, LETTER OF CREDIT
AND REAPPROVAL OF CONSERVATON EASEMENT
Big Muskego Estates
WHEREAS, A Final Plat was submitted on March 28, 2003 by Towne Realty, Inc. d/b/a
Homes by Towne of Big Muskego Estates LLÇ for development of the Benke-
Schweitzer property located in the SE 1/4 and SW 1/4 of Section 13 to create 54
residential parcels and approximately 49 acres of common space; and
WHEREAS, The Plan Commission has recommended approval through Resolution
#P.C. 048-2003; and
WHEREAS, The Subdivider's Agreement and Letter of Credit have been received for
Big Muskego Estates and the Finance Committee has recommended approval; and
WHEREAS, A Conservation Easement was approved for Big Muskego Estates on May
14,2002 through Resolution #117-2002; and
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WHEREAS, The Conservation Easement has been amended and the Finance
Committee has reviewed and recommended approval.
NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of
Muskego, upon the recommendation of the Plan Commission, does hereby approve the
Final Plat for Big Muskego Estates Subdivision, subject to approval of the City Engineer
and all objecting and approving agencies, receipt of all fees as provided in Section
18.14 of the Land Division Ordinance, any special assessments which may be due, and
the conditions outlined in Resolution #P.C. 048-2003.
BE IT FURTHER RESOLVED That the Subdivider's Agreement, Letter of Credit and
Conservation Easement for Big Muskego Estates Subdivision, as attached, are hereby
approved subject to approval of the City Attorney and City Engineer, all of said
approvals to be obtained within thirty (30) days of the date of approval of this
Resolution or the same will be null and void.
BE IT FURTHER RESOLVED That a digital file of this final plat shall be submitted to
the City in accordance with Common Council Ordinance #1118 and Resolution #196-
2002.
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BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are hereby
authorized to sign the necessary documents in the name of the City, and that the
Mayor, in consultation with the City Attorney, may make any necessary technical
corrections.
DATED THIS 24th DAY OF June , 2003.
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Reso. #150-2003
SPONSORED BY:
FINANCE COMMITTEE
Ald. Rick Petfalski
Ald. Eric Schroeder
Ald. Nancy C. Salentine
This is to certify that this is a true and accurate copy of Resolution #150-2003 which
was adopted by the Common Council of the City of Muskego.
~K 01~ C -Treasurer
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HOMES BY TOWNE OF BIG MUSKEGO ESTATES LLC - CITY OF MUSKEGO
BIG MUSKEGO ESTATES - SUBDIVIDER'S AGREEMENT
This Agreement, made this day of_, 2003 by and between Homes by Towne of Big Muskego
Estates LLC (the "Subdivider") and the City of Muskego, a municipal corporation of the State of
Wisconsin, located in Waukesha County, (the "City").
WITNESSETH
WHEREAS, the Subdivider has submitted for approval by the City a Final Plat for Big Muskego Estates
Subdivision (the "Subdivision"), a part of the lands described as:
Being a subdivision of part of government lots 2 and 3 in the Southwest 1/4 of fractional Section
13 and part of the Northwest 1/4 and Southwest 1/4 of the Southeast 1/4 of Section 13, all in
Town 5 North, Range 20 East, in the City of Muskego, Waukesha County, Wisconsin, bounded
and described as follows: Commencing at the Northeast corner of the Southeast 1/4 of said
section; Thènce South 87'18'00" West along the north line of said 1/4 Section 1834.35 Feet to the
point of beginning of lands to be described; Thence South 01'11'16" East 1789.28 Feet to a point;
Thence South 89'01 '34" West 296.89 feet to a point on the centerline of Durham Drive; Thence
North 38'45'12" West along said centerline 444.48 Feet to a point; Thence North 36'03'13" East
14.43 Feet to a point on the aforesaid centerline; Thence North 36058'26" West along said
centerline 2.14 Feet to a point; Thence North 40'36'26" West along said centerline 425.47 Feet to
a point; Thence South 49023'34" West along the Northwest line of Certified Survey Map No. 9409
a distance of 500.00 Feet to a point on the Southwest line of said Certified Survey Map; Thence
South 40'36'26" East along said Southwest line 485.82 Feet to a point on the South line of the
North 1/4 of said government lot 3; Thence South 88'07'00" West along said South line 950.00
Feet to a meander comer that is North 88'07'00" East 1829 Feet more or less from the water's
edge of Big Muskego Lake; Thence North 26'42'12" West along said meander line 486.10 Feet to
a point on the East line of Holz Drive, a public street; Thence North 07024'05" West along said
Holz Drive, the East line of Certified Survey Map No. 7979 and the East line of Block A of Holz's
Assessors Plat, a recorded plat, 961.00 Feet to a point; Thence North 03012'59" West along the
East line of said Block A, 290.46 Feet to a point on the South line of Holz Drive; Thence North
87'27'18" East along said South line 454.88 Feet to a point of the centerline of Durham Drive;
Thence South 43'04'00" East along said centerline 59.28 Feet to a point; Thence North 46'56'00"
East 83.68 Feet to a point; Thence North 02'32'42" West 50.69 Feet to a point on the North line of
the Southwest 1/4 of said section; Thence North 87'27'18" East along said North line 799.39 Feet
to the center of section; Thence North 87'18'00" East along the North line of the Southeast 1/4 of
said section 827.64 feet to the point of beginning. Including the lands between the meander line
and the water's edge of Big Muskego Lake, as shown on this plat. Containing 92.00 Acres of
land, more or less, and hereinafter referred to as the "Subdivision", and
the Final Plat(s) of which will be recorded with the Register of Deeds for Waukesha County and a copy
of which is on file in the Office of the City Clerk; and
WHEREAS, Section 236.13 of the Wisconsin Statutes provides that as a condition of plat approval, the
governing body of the City may require that the Subdivider make and install certain pUblic improvements
reasonably necessary for the Subdivision and further, may require dedication of public streets, alleys or
other ways within the Subdivision, to be conditioned upon the construction of said improvements
according to municipal specifications without cost to said municipality; and
WHEREAS, The City's Engineers, the City's Public Works Committee, Public Utility Committee and
Finance Committee have duly approved, contingent of certain other approvals, Subdivider's plans and
specifications for subdivision improvements, and the City's Plan Commission and Common Çouncil have
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Big Muskego Estates Subdividers Agreement
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duly approved the final plat of Big Muskego Estates Subdivision contingent in part upon the execution
and performance of this Agreement by the Subdivider, and .
WHEREAS, The Subdivision was subject to a Pre Development Agreement approved on January 22,
2002 by Common Council Resolution #14-02, and
WHEREAS, The successful completion of certain improvements addressed in Section III of this
Agreement are in part subject to the completion of certain public water improvements by City, by
separate Agreement as approved on January 14, 2003 by Common Council Resolution #14-2003.
NOW, THEREFORE, In consideration of the covenants herein contained, the parties hereto agree as
follows:
SECTION I : PLATTING
1. This Subdivider's Agreement addresses the development of 54 parcels platted for single family
residential use, and 3 Outlots platted for open space, stormwater retention purposes, all being under
the Provisions of Chapters 17 and 18 of the Municipal Code, and under the auspices of RS-2 / OPD
Suburban Residence District with Planned Development Overlay zoning.
a) Single family parcels shall conform to the zoning requirements of RS-2 Suburban Residence
district, being a minimum of 20,000 square feet in area, and 110 feet in average lot width.
b) Outlots 1, shall be reserved for common open space and entrance monument purposes, and
shall be owned and maintained by an incorporated Owners Association established by
Subdivider. .
c) Outlot 2 is dedicated to the City of Muskego for the siting of a municipal well based upon
separate agreement.
d) Outlot 3 is reserved for common open space and stormwater management purposes. A
stormwater retention easement on Outlot 3 shall be controlled and maintained by the
incorporated Owners Association established by Subdivider.
2. Subdivider shall entirely at its expense:
a) Concurrent with the execution of this Agreement tender an Irrevocable Standby Letter of Credit in
the amount required herein for the construction of improvements required by this Agreement. No
construction activity may commence until this Agreement has been executed and recorded, and
the Letter of Credit has been tendered.
b) Concurrent with the execution of this Agreement, provide the City with title evidence acceptable
to the City Attorney showing that upon recording the Plat, the City will have good, indefeasible
title to all interests in land dedicated or conveyed to the City by the Plat.
c) Concurrent with the execution of this Agreement, and in consideration of Subdivider's redirection
of stormwater from the Root River watershed to the Muskego / Wind Lake watershed, petition the
Big Muskego Lake / Bass Bay Protection and Rehabilitation District within said District's
boundaries for inclusion of all lands bound by this Agreement. Said petition shall request status
of "off lake" membership. . d) Within six (6) months of approval of this Agreement by the Common Council, the Subdivider shall
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Big MU3kego E3tate3 Subdivide," Agreement
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execute this Agreement, shall cause this Agreement to be recorded at the Waukesha County
Register of Deeds, and shall provide City with evidence of recording.
e) Within six (6) months of approval by all approving authorities and waiver of objection by all
objecting authorities, the Subdivider shall cause the final plat of Big Muskego Estates to be
executed and recorded, and shall provide City with evidence of recording.
f) Place and install monuments required by State Statute or City Ordinance.
SECTION II : PHASING
1. Subdivider and City agree that final platting and the installation of public and private improvements
described in Section III shall occur in one phase.
SECTION III: IMPROVEMENTS
Subdivider shall entirely at its expense:
A. ROADS AND STREETS:
1. Grade and improve all roads and streets in accordance with the plans and specifications approved
by the Public Works Committee on June 23, 2003 including off site improvements necessary to
provide such roads and streets, including grading and gravel, curb and gutter, and asphalt street
ímprovements, as approved by the Director of Engineering and Building and Public Works
Committee as indicated in the plans and specifications on file with the Engineering and Building
Department. .
2. Restore any damage to existing pavement, curb, gutter, and landscaping which may result from
construction of subdivision improvements. .
3. Reimburse the City for the cost of all street signs, street lights, traffic signs and posts, including the
cost of their installation.
B. STORM AND SURFACE WATER DRAINAGE AND MASTER GRADING PLAN:
1. Construct, install, furnish and provide facilities as approved by the Director of Engineering and
Building and Public Works Committee on June 23, 2003 for storm and surface water drainage
throughout the entire Subdivision, and a Master Grading Plan providing for sump pump discharge to
a tile or storm sewer system, all in accordance with the plans and specifications on file in the Building
and Engineering Department. The City retains the right to require the Subdivider to install at its cost
additional storm drainage and erosion control measures prior to acceptance of improvements by the
City of Muskego.
2. Grade and improve all lots in conformance with the Master Grading Plan as approved by the Director
of Engineering and Building and Public Works Committee on June 23, 2003 all in accordance with
the plans and specifications on file in the City Building and Engineering Department. Restore with
topsoil and seed. Establish dense vegetation.
3. Clean all Storm Sewers prior to acceptance of improvements and the issuance of building permits by
. the City.
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Big Muskego Estates Subdividers Agreement
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4, Execute and record a Retention Pond Maintenance Agreement in the form attached hereto. The
document shall be incorporated herein and made part hereof, as approved by the Director of . Engineering and Building and Public Works Committee on June 23, 2003 relating to privately owned
storm water appurtenances, and provide proof of recording prior to sale of lots in the Subdivision.
Keep and maintain all storm sewers, retention or detention ponds, and surface water drainage
features which are outside of the rights-of-way in perpetuity, as provided for in the Maintenance
Agreement.
C. SANITARY SEWER:
1. Construct, install, furnish, and provide without cost to City, a complete sanitary sewage collection
system throughout the entire Subdivision, and including off site improvements necessary to provide
such system, as approved by the Director of Engineering and Building and the Public Utilities
Committee on May 19, 2003 all in accordance with the plans, specifications and drawings on file in
the City Building and Engineering Department.
2. Complete, to the satisfaction of the Director of Engineering and Building, any remaining punch list
items concerning the Sanitary Sewer System prior to the connection of any structure to the sanitary
sewer systems.
3. Televise the sanitary sewer system, repair any defects as determined by the Director of Engineering
and Building, and supply video tape to the City of Muskego, and clean all sewer lines prior to the
issuance of building permits, and acceptance of improvements by the City.
D. WATER MAIN:
1. Construct, install, furnish, and provide without cost to City, a complete system of water supply and
distribution, throughout the entire Subdivision, as approved by the Director of Engineering and
Building and Public Utilities Committee on May 19, 2003 and in accordance with the plans and
specifications on file in the City Building and Engineering Department.
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2. Apply for all necessary permits to use water from hydrants for construction permits, as may be
required by the City.
3. Complete, to the satisfaction of the Director of Engineering and Building, any remaining punch list
items concerning the water system prior to the connection of any structure to the water system.
E. LANDSCAPING:
1. Preserve existing trees outside of the public right-of-way to the maximum extent possible, when
installing the Subdivision improvements. Replace trees in accordance with plans to be approved by
the Plan Commission.
2. Remove and lawfully dispose of destroyed trees, brush, tree trunks, shrubs and other natural growth,
and all rubbish.
3. Plant street trees without cost to City in accordance with Section 18.60 of the Muskego Land Division
Ordinance and the adopted Urban Forestry Management Plan and Urban Forestry Strategic Plan
dated March 28, 2000 and adopted by the Common Council on July 11, 2000 and in accordance with
plans to be approved by the Planning Director and Plan Commission prior to the release of . occupancy permits.
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Big Muskego Estates Subdividers Agreement
4, Install plantings without cost to the City within the 30 foot landscape easement abutting Durham
..~. Drive and in accordance with plans to be approved by the Planning Director and Plan Commission
prior to the release of occupancy permits.
F. EROSION CONTROL MEASURES:
1. Submit to the City, an application for a Land Disturbing Permit in accordance with the Erosion
Control Plan as approved in accordance with the requirements of Section 29.06 of the City's Erosion
Control Ordinance by the Director of Engineering and Building and Public Works Committee
on June 23, 2003 in accordance with the plans and specifications on file in the Building and
Engineering Department.
2. Construct, install, furnish and provide without cost to City, a complete system of Erosion Control
Devices or measures in specified areas of the Subdivision, in accordance with the Erosion Control
Plan as approved by the Director of Engineering and Building and Public Works Committee
on June 23, 2003 in accordance with the plans and specifications on file in the City Building and
Engineering Department. No construction or grading shall begin until said permit is issued by the
City, and no grading shall occur without a two (2) day prior notice to the City.
3. Install silt fencing in conformance with the approved Erosion Control Plan prior to the grading and
construction work. Such fences shall be maintained by the Subdivider until such time as vegetative
cover is established in the Subdivision. Install mulching and seeding of all disturbed areas to comply
with Municipal Code Chapter 29.
4. Ensure that each individual lot owner obtains a separate erosion control permit at any time that any
vegetation is disturbed, and insure that each individual lot owner is responsible for controlling erosion
. on their subject lot.
G. RECREATION TRAILS
1. Construct, install, furnish, and provide without cost to City a complete recreation trail along the north
right-of-way line of Durham Drive abutting the plat, being constructed along the north right-of-way
line of Durham Drive abutting the plat as approved by the Director of Engineering and Building, and
the Public Works Committee on June 23, 2003 and in accordance with the plans and specifications
on file in the City Building and Engineering Department.
City shall:
H. REIMBURSEMENTS FOR UTILITY OVER SIZING
1. Reimburse Subdivider in accordance with the following schedule approved by the Finance
Committee on June 24, 2003:
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Improvement Estimated Reimbursement At:
Category: Quantitv
PiDe Material 10,575.0I.f. $9.25/IJ.
FittinQs 19 $295.00 each
Beddina and Caver Material 492.78 tans $7.00/ tan
Beddina and Cover Material 141.72 tons $4.20 / ton
Valves 27 $670.00 each
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Big Muskego Estates Subdividers Agreement '.
2. Reimbursement may be requested by Subdivider following completion of as-built plans and following
City's acceptance of the Improvements. In no case shall reimbursement occur prior to January 1,
2004. .
3. All requests for reimbursement shall be made in writing to the City Planning Department, and shall
be reviewed for approval by the Director of Building and Engineering. The recommendation of the
Director of Building and Engineering shall be forwarded to the Finance Committee and Public Utilities
Committee for consideration.
SECTION IV: TIME OF COMPLETION OF IMPROVEMENTS
The improvements set forth in Section III, except for final surface course of pavement as described
herein, shall be completed by the Subdivider within one (1) year from signing of this Agreement or
except if an earlier date is provided for in the Agreement. The final surface course of pavement may be
deferred until ninety percent (90%) of the homes have been completed, or 36 months after the
installation of the first lift of asphalt, whichever comes first.
If the final surface course of pavement, is not completed within twelve (12) months of the date of this
Agreement, the Subdivider shall extend the Letter of Credit in a form acceptable to the City until such
time as the final surface course of pavement is completed.
If the City receives notice of the intention to terminate the Letter of Credit prior to completion of the final
surface course pavement, such notice shall be considered a failure to complete improvements in
accordance with this agreement and shall entitle the City to immediately draw against the Letter of
Credit.
SECTION V : AS-BUILT CONSTRUCTION PLANS AND DIGITAL FILES
Subdivider authorizes the City to prepare all necessary as-built construction plans for improvements to
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be dedicated to the City. Subdivider agrees to reimburse City for all costs incurred in the preparation
and distribution of as-built data, including collection of data, revisions to construction documents and
upload of data to City's Geographic Information System, and City may utilize Subdivider's Developers
Deposit account for all charges related hereto.
Subdivider authorizes the City to convert digital files submitted by Subdivider pursuant to Section
18.32(3)(i) of the Municipal Code of the City of Muskego and Common Council Resolution No. 196-2002
to any format deemed necessary by City. Subdivider agrees to reimburse City for all costs incurred in
said conversions and City may utilize Subdivider's Developers Deposit account for all charges related
hereto.
SECTION VI : DEDICATION AND ACCEPTANCE OF IMPROVEMENTS
Subject to all of the other provisions of this agreement, Subdivider shall, without charge to the City, upon
completion of the above described improvements, unconditionally give, grant, convey and fully dedicate
the streets, recreation trails, sanitary sewers, watermains, storm water drainage facilities (excluding
those facilities which are to be owned and maintained by Owners Associations) to the City, its
successors and assigns, forever, free and clear of all encumbrances (except those encumbrances that
may be acceptable to the City) whatever together with and including, without limitation because of
enumeration, any and all land, buildings, structures, mains, conduits, pipes lines, plant, machinery,
equipment, appurtenances and hereditaments which may in any way be a part of or pertain to such
improvements and together with any and all necessary easements for access thereto. The City will be
receptive to the dedications of improvements, except private storm water drainage facilities, after the.
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Big Muskego Estates Subdividers Agreement
first lift of bituminous concrete pavement has been installed, when all said utilities have been completed
. and approved by the Director of Building and Engineering and other agencies as applicable.
. Dedication shall not constitute acceptance of any improvement by the City. The City shall not accept the
dedication of any improvements which do not fully comply with City standards and specifications. Claims
of financial hardship by the Subdivider shall not be considered a reason for the City to accept
substandard materials or work.
At such time as all improvements are completed and acceptable as called for under this Agreement, and
all approvals have been received from regulatory agencies, such improvements shall be accepted by the
City by separate Resolution. The Resolution of Acceptance shall be recorded with the Waukesha
County Register of Deeds.
The City shall have the right to connect to or integrate other utility facilities with the improvements
provided herein without payment, award, or consent required of the Subdivider.
SECTION VII: INSPECTION AND ADMINISTRATIONS FEES
Subdivider shall pay and reimburse the City in advance of the signing of the Agreement, in accordance
with Section 18.14 of the Land Division Ordinance and Ordinance No. 909, and at times specified herein,
but in any event, no later than thirty (30) days after billing, all fees, expenses and disbursements which
shall be incurred by the City prior to and following the date hereof in connection with or relative to the
construction, installation, dedication and acceptance of the improvements covered by Section III,
including without limitation by reason of enumeration, design, engineering, preparing, checking and
review of designs, plans and specifications, supervision, inspection to insure that construction is in
compliance with the applicable plans, specifications, regulations and ordinances; legal, administrative
and fiscal work undertaken to assure and implement such compliance. Failure to payor reimburse the
. City in a timely manner may cause the City to cease all construction inspections until such time as all
anticipated or outstanding inspection and administration fees have been satisfied.
SECTION VIII : MISCELLANEOUS REQUIREMENTS
The Subdivider shall:
1. Easements: Provide any easements on Subdivider's land deemed necessary by the Director of
Building and Engineering prior to the Final Plat being signed, provided such easements are along lot
lines or to the rear of the lots and are not any more restrictive to the building of homes beyond the
applicable side yard and offset distances required by the zoning for such lots.
2. Manner of Performance: Cause all construction called for by this Agreement to be carried out and
performed in a good and workmanlike manner.
3. Municipal Codes and Ordinances: All the provisions of the City's ordinances are incorporated herein
,by reference, and all such provisions shall bind the parties hereto and be a part of this Agreement as
fully as if set forth at length herein. This Agreement and all work and improvements required
hereunder shall be performed and carried out in strict accordance with and subject to the provisions
of said ordinances.
SECTION IX: GUARANTEES:
The Subdivider shall guarantee the public roads and streets, recreation trails, sanitary sewers,
watermains, surface water drainage improvements and all other improvements described in Section III,
. against defects due to faulty materials or workmanship provided that such defects appear within a period
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Big Muskego Estates Subdividers Agreement
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of one (1) year from the date of acceptance. The Subdivider shall pay for any damages to City property
resulting from such faulty materials or workmanship. This guarantee shall not be a bar to any action the
City might have for negligent workmanship or materials. Wisconsin law on negligence shall govern such 8
situation.
SECTION X : GENERAL INDEMNITY:
In addition to, and not to the exclusion or prejudice of, any provisions of this agreement or documents
incorporated herein by reference, Subdivider shall indemnify and save harmless, and agrees to accept
tender of defense and to defend and pay any and all reasonable legal, accounting, consulting,
engineering and other expenses relating to the defense of any claim asserted or imposed upon the City
its officers, agents, and employees, and independent contractors growing out of this agreement as
stated above by any party or parties except those claims asserted by Subdivider against City, its officers,
agents and employees in an effort to enforce this Agreement. The Subdivider shall also name as
additional insured on its general liability insurance the City, its officers, agents, and employees, and any
independent contractors hired by the City to perform service as to this Subdivision and give the City
evidence of the same upon request by the City.
a) Hold Harmless. The Subdivider shall indemnify and hold harmless the City, its officers,
agents, independent contractors, and employees from and against all claims, damages,
losses, and expenses, including attorney's fees arising out of or resulting from the
performance of the Work, providing that any such claim, damage, loss, or expense (i) is
attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of
tangible property (other than the Work itself) including the loss of use resulting therefrom,
and (ii) is caused in whole or in part by any negligent act or omission of the Subdivider, its
officers, agents, independent contractors, and employees or anyone for whose acts any of
them may be made liable, regardless of whether or not it is caused in part by a party
indemnified herein. A claim for indemnification under this section shall be conditioned upon 8
the City giving to the Subdivider, within five (5) business days of receiving the same, written
notice of any such claim made against the City for which indemnification is sought, and if
requested to do so by Subdivider's insurance carrier, the City shall tender the defense of
such claims to the Subdivider's insurance carrier. In any and all claims against the City, its
.officers, agents, independent contractors, and employees by the Subdivider, its officers,
agents, independent contractors, employees, and anyone directly or indirectly employed by
any of them or anyone for whose acts any of they may be held liable, the indemnification
obligation under this section shall not be limited in any way by any limitation on the amount or
type of damages, compensation, or benefits payable by or for the Subdivider, its officers,
agents, independent contractors, employees under Workers' Compensation Acts, disability
benefit acts, or other employee benefit acts.
b) Personal Liabilitv of Public Officials. In carrying out any of the provisions of this Agreement
or in exercising any power or authority granted to them thereby, there shall be no personal
liability of the City officers, agents, independent contractors, or employees, it being expressly
understood and agreed that in such matters they act as agents and representatives of the
City.
c) Indemnification for Environmental Contamination. The Subdivider shall indemnify, defend,
and hold City and its officers, agents, independent contractors, and employees harmless from
any claims, judgments, damages, penalties, fines, costs, or loss (including reasonable fees
for attorneys, consultants, and experts) that arise as a result of the presence or suspected
presence in or on the real property dedicated or conveyed to the City by, under, pursuant to,
or in connection with the Plat and this Agreement (including but not limited to street right-of-8
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Big Muskego Estates Subdividers Agreement
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way) of any toxic or hazardous substances arising from any activity occurring prior to the
acceptance of all improvements. Without limiting the generality of the foregoing, the
indemnification by the Subdivider shall include costs incurred in connection with any site
investigation or any remedial, removal, or restoration work required by any local, State, or
Federal agencies because of the presence or suspected presence of toxic or hazardous
substances on or under the real property, whether the soil, groundwater, air, or any other
receptor. The City agrees that it will immediately notify Subdivider of the discovery of any
contamination or of any facts or circumstances that reasonably indicate that such
contamination may exist in or on the real property. Upon receipt of notice from the City or
other entities, Subdivider shall investigate and rectify conditions which indicate the presence
of or suspected presence of contamination on the subject property as identified by local,
state, or federal agencies in order to comply with applicable laws.
d) Subdivider shall, at its expense, obtain and carry comprehensive general liability insurance
with combined single limits of at least One Million Dollars ($1,000,000.00) for one person and
at least Five Million Dollars ($5,000,000.00) per occurrence, and at least One Million Dollars
($1,000,000.00) property damage (or such higher amounts as the City shall from time to time
deem reasonable). Such policy shall cover both Subdivider and the City and its agents,
employees, and officials, and all insurers shall agree not to cancel or change the same
without at least thirty (30) days written notice to the City. A certificate of Subdivider's
insurance shall be furnished to the City upon execution of this Agreement. Each such policy
shall provide that no act or default of any person other than the City or its agents shall render
the policy void as to the City or effect the City's right to recover thereon.
SECTION XI : AGREEMENT FOR BENEFIT OF PURCHASERS:
. The Subdivider shall agree that in addition to the City's rights herein, the provisions of this Agreement
shall be for the benefit of the purchaser of any lot or any interest in any lot or parcel of land in the
Subdivision. Further, that the sale of any lot or parcel shall not release the Subdivider from completing
the work required by Section III of this Agreement.
SECTION XII : CONSTRUCTION PERMITS. ETC.:
The City shall, within its authority:
1. Issue such permits, adopt such resolutions, and execute such documents as may be necessary to
permit the Subdivider to construct the improvements in accordance with the plans and specifications
called for by this agreement, upon Subdivider's compliance with any deposit provisions or other
requirements of the applicable ordinances or regulations.
2. Furnish the Subdivider such permits or easements as may be required to enter upon and install the
previous described improvements in any public street or public property.
3. Cooperate with the Subdivider in obtaining similar permits, resolutions and documents as may be
necessary from other authorities having jurisdiction in the premises.
4. Make available to the Subdivider or their nominee successors or assigns, permits for the
construction of single family residences subject to the provision of Section XIII.
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Big Muskego Estates Subdividers Agreement '.
SECTION XIII: BUILDING AND OCCUPANCY PERMITS:
It is expressly understood and agreed that no building permits or occupancy permits shall be issued for. any homes until the Director of Engineering and Building has determined that:
1. The sanitary sewer, water and surface water drainage facilities required to serve such homes,
including off-site water mains addressed by separate Agreement, are connected with an
operational system as required herein, and installation of the bituminous concrete base course
pavement, and recreation trail, has been properly installed, and
2. Video tape of sanitary sewer system has been furnished to the Director of Engineering and
Building, and
3. Certification is provided to the Director of Engineering and Building by a Registered Land
Surveyor that all lot grades conform to the Master Grading Plan, and
4. Negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Planning
Director.
It is expressly understood and agreed that no occupancy permits shall be issued for any homes until the
Planning Director has determined that:
5. Street Tree Plans as required by Section III E (3) of this Agreement have been approved.
6. Landscape Plans as required by Section III E (4) of this Agreement have been approved.
SECTION XIV. FINANCIAL GUARANTEES: .
1. LETTER OF CREDIT: Concurrent with the execution of this Agreement by the City, the Subdivider
shall file with the City a Letter of Credit setting forth terms and conditions approved by the City
Attorney and Finance Committee on June 24, 2003 in the amount of $1,744,567.30 as a guarantee
that the required plans and improvements will be completed by the Subdivider and his
subcontractors no later than one (1) year from signing of the Agreement, except if another date is
provided within this Agreement and as a further guarantee that all obligations to the subcontractors
for work on the Subdivision are satisfied.
a) Invoices: Invoices documenting public improvements addressed and not addressed in the Letter
of Credit, but attributable to the subject development shall be provided to the City.
b) Reduction Of Letter Of Credit Balance: The Subdivider shall provide Director of Engineering and
Building with a written request accompanied by: invoices for work completed for which a release
is being requested, breakdown of invoices in the format of the Public Improvement Cost
Breakdown form, and signed original lien waivers for all work which is subject of release request.
The Director of Engineering and Building will process all requests in accordance with policies
adopted by the Finance Committee, as may be amended from time to time.
2. DEVELOPER'S DEPOSIT: The Subdivider shall maintain a $10,000.00 balance in the Developer's
Deposit. No reduction of the Letter of Crédit balance shall be entertained until the Developer's
Deposit is satisfied unless otherwise authorized by the Common Council following a recommendation
of the Finance Committee. .
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Big Muskego Estates Subdividers Agreement
3. PRESERVATION OF ASSESSMENT RIGHTS:
8 a) Waiver of Notice. In addition to other remedies provided to the City by this Agreement, the City
shall have the right, without notice or hearing, to impose special assessments for any amount to
which the City is entitled by virtue of this Agreement upon the Subdivision. This provision
constitutes the Subdivider's consent to the installation by the City of all improvements required by
this Agreement and constitutes the Subdivider's waiver of notice and consent to all special
assessment proceedings as described in Sec. 66.60 (18), Wis. Statutes.
b) Remedies not exclusive. The City may use any other remedies available to it under the
Agreement or in law or equity in addition to, or in lieu of, the remedies provided herein.
SECTION XV. PARTIES BOUND:
Subdivider or its assignees shall be bound by the terms of this agreement or any part herein as it applies
to any phase of the development. Approval by the City shall not be deemed a waiver as the ultimate
responsibility for the proper design and installation of streets improvements, drive and parking areas,
water facilities, drainage facilities, ditches, landscaping and all other improvements shall be the
Subdividers. The fact that the City or it's engineers, or it's attorney, or it's staff may approve a specific
project shall not constitute a waiver, or relieve the Subdivider from ultimate responsibility for the design,
performance, and function of the Development and related infrastructure.
SECTION XVI . AMENDMENTS AND ASSIGNMENT:
Subdivider shall not assign this Agreement without the written consent of the City. The City and the
Subdivider, by mutual consent, may amend this agreement, by written agreement between the City and
. the Subdivider.
SECTION XV: NOTICES AND CORRESPONDENCE
Unless otherwise stated in this Agreement, the delivery of all notices and correspondence shall only be
effective upon being delivered personally, sent by prepaid United States Postal Service certified mail
with return receipt requested, sent by facsimile with transmission confirmation, or sent by electronic mail
with return receipt requested, to all parties as follows:
To City:
Planning Department
City of Muskego
POB 749
W182 S8200 Racine Avenue
Muskego, WI 53150-0749
(262) 679-4136
(262) 679-5614 facsimile
.
To Subdivider:
Homes By Towne of Big Muskego Estates LLC
Towne Realty, Inc. Manager
Attn: William A. Wigchers
710 North Plankinton Ave
Milwaukee, WI 53203 .
(414) 274-2486
(414) 274-2728 facsimile
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Big Muskego Estates Subdividers Agreement
All notices shall be considered to have been delivered at the time such notices are personally delivered
to each party, or three (3) days after the date of postmark on any prepaid certified letter, facsimile .. transmission, or electronic mail.
Parties to this Agreement shall give fifteen (15) days notice of any change of mailing address,
telephone or facsimile number, or electronic mail address. Failure to provide said notice may constitute
a default by the party.
SECTION XVII: PARTIES TO THE AGREEMENT
IN WITNESS HEREOF, Subdivider has caused this Agreement to be signed by its appropriate officers
and their seals to be hereunto affixed in duplicate original counterparts on the date and year first written
above.
A. HOMES BY TOWNE OF BIG MUSKEGO ESTATES LLC
TOWNE REALTY, INC., MANAGER
By:
NAME:
STATE OF WISCONSIN) SS
WAUKESHA COUNTY )
PERSONALLY came before me this
-
day of , 2003,
person who executed the foregoing instrument and acknowledged the same.
to me known to be the.
Notary Public-State of Wisconsin
My Commission Expires
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Big Muskego Estates Subdividers Agreement
. IN WITNESS HEREOF, City has caused this Agreement to be signed by its appropriate officers and
their seals to be hereunto affixed in duplicate original counterparts on the date and year first written
above. .
B, CITY OF MUSKEGO:
BY:
Mark A. Slocomb, Mayor
BY:
Jean K. Marenda, City Clerk-Treasurer
STATE OF WISCONSIN) SS
WAUKESHA COUNTY )
PERSONALLY came before me this day of , 2003, the above named Mark A.
Slocomb, Mayor, and Jean K, Marenda, City Clerk-Treasurer of the City of Muskego, to me known to be
the persons executed the foregoing instrument, and to me known to be such Mayor and City Clerk-
Treasurer of said municipal corporation, and acknowledged that they executed the foregoing instrument
as such officers as the deed of said municipal corporation bJ;' its authority and pursuant to the
authorization by the Common Council from their meeting on the 24 day of June, 2003.
. Notary Public-State of Wisconsin
My Commission Expires
CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Subdivider's Agreement for Big
Muskego Estates Subdivision, Muskego, Wisconsin, as entered into on the _day of , 2003, by
and between Homes by Towne of Big Muskego Estates LLC and the City Of Muskego, pursuant to the
authorization by the Common Council from their meeting on the 24th day of June, 2003.
BY THE COMMON COUNCIL
Jean K. Marenda, City Clerk-Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
This day , 2003.
My commission expires
This instrument drafted by Brian Turk, Director of Planning
City of Muskego
. PO Box 749 . Muskego, WI 53150
BIG MUSKEGO ESTATES RETENTION POND MAINTENANCE AGREEMENT
This Agreement is made and entered into this
-
day of , 2003, by and
between Homes By Towne of Big Muskego Estates LLC., (hereinafter referred to as
"Subdivider"), the incorporated Big Muskego Estates Owners Association, Inc. a non-
stock corporation (hereinafter the "Association") and the City of Muskego, a Municipal
Corporation located in the County of Waukesha and the State of Wisconsin, (hereinafter
referred to as "City").
WITNESSETH:
WHEREAS, the Subdivider has submitted for approval by the City a Final Plat for Big
Muskego Estates Subdivision (the "Subdivision"), being a part of the lands described as:
Being a subdivision of part of govemment lots 2 and 3 in the Southwest 1/4 of
fractional Section 13 and part of the Northwest 1/4 and Southwest 1/4 of the
Southeast 1/4 of Section 13, all in Town 5 North, Range 20 East, in the City of
Muskego, Waukesha County, Wisconsin, bounded and described as follows:
Commencing at the Northeast corner of the Southeast 1/4 of said section; Thence
South 87"18'00" West along the north line of said 1/4 Section 1834.35 Feet to the
point of beginning of lands to be described; Thence South 01011'16" East 1789.28
Feet to a point; Thence South 89001'34" West 296.89 feet to a point on the
centerline of Durham Drive; Thence North 38045'12" West along said centerline
444.48 Feet to a point; Thence North 36003'13" East 14.43 Feet to a point on the
aforesaid centerline; Thence North 36058'26" West along said centerline 2.14 Feet
to a point; Thence North 40036'26" West along said centerline 425.47 Feet to a
point; Thence South 49023'34" West along the Northwest line of Certified Survey
Map No. 9409 a distance of 500.00 Feet to a point on the Southwest line of said
Certified Survey Map; Thence South 40036'26" East along said Southwest line
485.82 Feet to a point on the South line of the North 114 of said government lot 3;
Thence South 88007'00" West along said South line 950.00 Feet to a meander
corner that is North 88007'00" East 1829 Feet more or less from the water's edge of
Big Muskego Lake; Thence North 26042'12" West along said meander line 486.10
Feet to a point on the East line of Holz Drive, a public street; Thence North
07024'05" West along said Holz Drive, the East line of Certified Survey Map No.
7979 and the East line of Block A of Holz's Assessors Plat, a recorded plat, 961.00
Feet to a point; Thence North 03012'59" West along the East line of said Block A,
290.46 Feet to a point on the South line of Holz Drive; Thence North 87027'18" East
along said South line 454.88 Feet to a point of the centerline of Durham Drive;
Thence South 43004'00" East along said centerline59.28 Feet to a point; Thence
North 46056'00" East 83.68 Feet to a point; Thence North 02032'42" West 50.69
Feet to a point on the North line of the Southwest 1/4 of said section; Thence North
87027'18" East along said North line 799.39 Feet to the center of section; Thence
North 87018'00" East along the North line of the Southeast 1/4 of said section
827.64 feet to the point of beginning. Including the lands between the meander line
and the water's edge of Big Muskego Lake, as shown on this plat. Containing 92.00
Acres of land, more or less, and hereinafter referred to as the "Subdivision", and
WHEREAS, The City has approved the plat of Big Muskego Estates and the
construction of storm water retention ponds within an outlot and within easements on
the Property; and
WHEREAS, The Subdivider has received various City permits, Army Corps of Engineers
permits, and Wisconsin Department of Natural Resources permits hereinafter referred
to as DNR permits to construct Big Muskego Estates Subdivision; and
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Big Muskego Estates
Retention Pond Maintenance Agreement
Page 2
WHEREAS, Big Muskego Estates Subdivision is upstream from Big Muskego Lake and
Bass Bay, and the City and DNR has expended great effort and expense to remove
sediment and rough fish from Big Muskego Lake; and
WHEREAS, The City and the DNR has established certain requirements for retention
ponds and storm water management to be constructed in Big Muskego Estates
Subdivision to minimize flooding and sediment migration to Big Muskego Lake and
adjacent wetlands and other tributary properties and to prevent rough fish propagation
and reintroduction into Big Muskego Lake; and
WHEREAS, The Subdivider has established Big Muskego Estates Owners Association
consisting of the owners of Parcels 1-54 inclusive, hereinafter referred to as the
"Association", which shall become the owner of certain outlots and a party to certain
easements upon recording of the final plat and the Big Muskego Estates Declarations of
Protective Covenants. Upon completion of the storm water retention ponds the
Association shall be responsible for the maintenance of the retention ponds constructed
thereon; and
WHEREAS, the City intends to reserve the right to enforce the requirement that the
storm water retention pond areas are maintained in a manner consistent with DNR
requirements and with this agreement and the storm water management plan dated
June 23, 2003 on file in the offices of the City of Muskego Building Department as
required by the City of Muskego Storm Water Management ordinance;
NOW THEREFORE, in consideration of the mutual covenants and agreements.
. IT IS AGREED, as follows:
1. The Association, unless otherwise provided for in the Storm Water Management
Plan, shall' be responsible for maintenance of the Storm water management
measures.
2. The Association shall maintain the storm water management measures in
accordance with the approved Storm Water Management Plan dated June 23, 2003
on file in the offices of the City of Muskego Building Department as required by the
City of Muskego Storm water Management Ordinance.
3. The City of Muskego is authorized to access the Property to conduct inspections of
storm water practices as necessary to ascertain that the practices are being
maintained and operated in accordance with the approved storm water management
plan.
4. The Association, on an annual basis, shall provide maintenance of each storm water
management measure, including but not limited to, removal of debris, maintenance
of vegetative areas, maintenance of structural storm water management measures
and sediment removal.
.
5. Upon notification to the Association, by the City of Muskego, of maintenance
problems which require correction, the specified corrective actions shall be taken
within a reasonable time frame as set by the City of Muskego.
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Big Muskego Estates
Retention Pond Maintenance Agreement
Page 3
6. The City of Muskego is authorized to perform the corrective actions identified in the
inspection report if the Association does not make the required corrections in the
specified time period, The costs and expenses shall be entered on the tax roll as a
special charge or special assessment against Lots 1-54 inclusive on an equal basis
and collected with any other taxes levied thereon for the year in which the work is
completed.
.
7. The Subdivider shall deposit in a segregated account with the City two thousand
five-hundred dollars ($2,500.00) to cover the estimated costs associated with the
pond draw downs necessary for the first five (5) years. Upon commencement of the
sixth (6) year, and continuing in each year thereafter, the City shall invoice the Big
Muskego Estates Owners Association in an amount sufficient to return the account
balance to one thousand dollars ($1,000.00). Said billing shall occur prior to
November 1 of each calendar year, to cover the costs associated with the pond draw
downs in the following year.
8. Any annual costs in excess of the $1,000.00 account balance, and which are
associated with the retention pond draw downs, shall be billed to the Association.
Costs not paid shall be placed in equal amounts as a special assessment or special
charge on the tax bills for the residential lots. If the Owners Association has not
been released by Subdivider upon commencement of the sixth (6) year, the
Subdivider shall deposit a minimum of one thousand dollars ($1,000.00) per year for
each year said incorporation does not occur, plus any additional costs as deemed
necessary by the City.
9. This document is a part of the Big Muskego Estates Subdivider's Agreement, which
terms are incorporated herein, shall be recorded with the Waukesha County
Register of Deeds and shall be a cQvenant running with the land and binding upon
all owners of said land.
.
IN WITNESS WHEREOF, Subdivider has caused this Agreement to be signed by its
appropriate officers and their seals to be hereunto affixed in duplicate original
counterparts on the date and year first written above.
A. HOMES BY TOWNE OF BIG MUSKEGO ESTATES LLC
TOWNE REALTY, INC., MANAGER
By:
Name:
STATE OF WISCONSIN) SS
W AUKESHA COUNTY )
PERSONALLY came before me this
-
day of_, 2003 to me known to
be the person who executed the foregoing instrument and acknowledged the same.
Notary Public, Waukesha County, Wisconsin My commission expires
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Big Muskego Estates
Retention Pond Maintenance Agreement
Page 4
IN WITNESS WHEREOF, the incorporated Big Muskego Estates Home Owners
Association, Inc. has caused this Agreement to be signed by its appropriate officers
and their seals to be hereunto affixed in duplicate original counterparts on the date and
year first written above.
B. BIG MUSKEGO ESTATES OWNERS ASSOCIATION, INC.
By:
Name:
8T ATE OF WI8CONSIN}SS
WAUKESHA COUNTY}
PERSONALLY came before me this
-
day of 2003, to
me known to be the persons who executed the foregoing instrument and acknowledged
the same.
Notary Public, Waukesha County, Wisconsin
My commission expires
IN WITNESS WHEREOF, City has caused this Agreement to be signed by its
appropriate officers and their seals to be hereunto affixed in duplicate original
counterparts on the date and year first written above'
CITY OF MUSKEGO
By:
Mark A. Slocomb, Mayor
By:
Jean K. Marenda, City Clerk/Treasurer
STATE OF WI8CONSIN}S8
WAUKESHA COUNTY}
Personally came before me this
-
day of , 2003, the above named Mark A.
Slocomb, Mayor and Jean Marenda, City Clerk/Treasurer, of the above-named
municipal corporation City of Muskego, to me known to be the persons executed the
foregoing instrument, and to me known to be such Mayor and City Clerk/Treasurer of
said municipal corporation, and acknowledged that they executed the foregoing
instrument as such officers as the deed of said municipal corporation by its authori~ and
pursuant to the authorization by the Common Council from their meeting on the 241 day
of June, 2003.
Notary Public, Waukesha County, Wisconsin My commission expires
Big Muskego Estates
Retention Pond Maintenance Agreement
Page 5
CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Retention Pond
Maintenance Agreement for Big Muskego Estates Subdivision, Muskego, Wisconsin, as
entered into on this
-
day of -' 2003 by and between Homed By Towne of Big
Muskego Estates LLC, the incorporated Big Muskego Estates Owners Association, Inc.
and the City of Muske~o, pursuant to the authorization by the Common Council from
their meeting on the 24 day of June, 2003.
BY THE COMMON COUNCIL
Jean K. Marenda, CMC
City ClerkfTreasurer
SUBSCRIBED AND SWORN TO BEFORE ME
this day of , 2003,
Notary Public, Waukesha County, Wisconsin
My commission expires
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BIG MUSKEGO ESTATES STORM WATER MANAGEMENT PLAN
The City of Muskego Storm Water Management Ordinance requires the filing of
a storm water management plan and grading plan. The grading plan including
all hydraulic calculations, together with storm sewer plans and appurtenant storm
water structures, has been filed by the Subdivider's engineer with the City of
Muskego. Such information was utilized by the City of Muskego to evaluate the
environmental characteristics of the area affected by the land development
activity in Big Muskego Estates, the potential impacts of the development upon
the quality and quantity of storm water discharges, the potential impacts upon
water resources and drainage systems and the effectiveness and acceptability of
proposed storm water management measures in meeting the performance
standards set forth in the storm water ordinance.
The intent of this storm water management plan is to set forth specific storm
water management measures to guide the Subdivider, the City of Muskego and
the Big Muskego Estates Owners Association regarding the management of
storm water in Big Muskego Estates Subdivision. Storm water management
measures shall not be limited to those expressed in this plan which may be
expanded upon by the Wisconsin Department of Natural Resource~, the City of
Muskego or any other party having jurisdiction. This plan shall be broken down
into three sections:
SECTION 1 - DUTIES AND RESPONSIBILITIES OF THE SUBDIVIDER
The Subdivider shall at its expense:
.
1. Create the above referenced grading plans, hydraulic calculations, storm
sewer, and drainage plans and after approval of same by the City of
Muskego file all such approved plans with the City.
2. The Subdivider shall improve the site by constructing said grading and
storm water conveyance systems together with all specified erosion
control measures including final stabilization of the site, all in accordance
with the Subdivider's Agreement and approved plans on file with the City.
3. The Subdivider shall construct the storm water retention pond to be
contained in an Outlot in Big Muskego Estates, in accordance with the
approved plans and Subdividers Agreement dated , 2003.
4. The Subdivider upon completion of the above referenced improvements
shall convey by final plat and deed restrictions the improvements to Big
Muskego Estates Owners Association, which shall be responsible for
carrying out the storm water measures on an ongoing basis expressed in
this Plan. It is understood that private ownership and maintenance of the
storm water management improvements, including storm sewers within
Big Muskego Estates Subdivision commences outside of City owned
rights-of-way. All improvements contained within the City owned rights-of-
way shall be the responsibility of the City to own and maintain.
Big Muskego Estates
Stormwater Management Plan
Page 2
SECTION 2 - DUTIES AND RESPONSIBILITIES OF THE CITY
The City of Muskego and the Department of Natural Resources (DNR) have
expended great effort and expense to remove sediment and rough fish from Big
Muskego Lake. The City and the DNR have established certain requirements for
retention pond and storm water management within Big Muskego Estates
Subdivision to minimize flooding and sediment migration to Big Muskego Lake,
adjacent wetlands, and other tributary properties, to prevent rough fish
propagation and reintroduction into Big Muskego Lake. To assure quality control
the City of Muskego is willing to administer an annual "draw down" of each
retention pond that will result in reducing the depth of the water during the cold
months of the year. This draw down of the depth of the storm water pond will
freeze-out all fish resulting in a rough fish free pond thereby minimizing the risk
of reintroduction of rough fish during flooding conditions into the navigable
stream which is tributary to Big Muskego Lake. The City shall also administer an
annual inspection of the storm water retention pond to monitor any build-up of
sedimentation on the floor of the pond.
Set forth below, is an outline of the City's responsibilities which has been agreed
to by the DNR:
1. The City shall as-built the finish grade of the pond and provide the as-
built plans to the City Subdivider and Big Muskego Estates Owners
Association. The City shall also provide a bench mark at the pond to be
illustrated on the as-built drawings. The costs and expenses for the City
to provide these services shall be charged to the Subdividers Developers
Deposit Account, or if no such account exists, shall be entered on the tax
roll as a special charge or special assessment against the residential
properties located in Big Muskego Estates collected with any other taxes
levied thereon for the year in which the work is completed. '
2. City of Muskego shall administer draw down and inspect for sediment
build-up. Draw down of the retention pond shall occur annually, generally
within the first two weeks of November. Draw down may only occur after
determination that sediment build-up will not be transported through the 4"
discharge pipe. If sediment build-up has occurred above the invert
elevation of the discharge pip'e it must be removed prior to draw down.
Draw down gate valves shall be closed within one week of
commencement of the draw down. '
3. Sediment build-up in pond shall be determined on an annual basis and
shall be recorded in a log. Removal of sediment shall be administered by
the Owners Association according to Section 3.
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Big Muskego Estates
Stormwater Management Plan
Page 3
SECTION 3 - DUTIES AND RESPONSIBILITIES OF THE BIG
MUSKEGO ESTATES OWNERS ASSOCIATION
An incorporated association of the owners of all single family lots in Big Muskego
Estates has been created for the purposes of managing and controlling
Common Areas including the outlot which contains the storm water retention
pond. This owner's association is formally titled Big Muskego Estates Owners
Association, and it is referred to herein as the Association.
The ownership and maintenance including all payment of associated costs for
the storm water retention pond shall be the responsibility of the Association. The
guidelines set forth below shall not limit additional measures which may from
time to time be mandated by the City, DNR or any other party having jurisdiction:
1. The Association on an annual basis, shall provide maintenance of each
storm water retention pond, including but not limited to, removal of debris,
maintenance of vegetative areas, maintenance of storm water structures,
emergency overflows including rip rap and sediment removal.
2. According to Section 2 the City shall keep an annual log of the depth of
sediment in the floor of the storm water retention pond. When sediment
build-up reaches 15", the City shall notify the Association to remove the
sediment. The DNR has required that any pumping of sediment laden
water by contractors shall be filtered through a temporary sediment basin
appropriately sized prior to being discharged into the creek or wetlands.
3. The Association shall be responsible for water quality in the storm water
retention pond including removal of weeds and algae control.
4. Upon notification to the Association, by the City of Muskego, of
maintenance problems which. require correction, the specified corrective
actions shall be taken within a reasonable time frame as set by the City of
Muskego.
5. The City of Muskego is authorized to perform the corrective actions
identified in the inspection report if the Association does not make the
required corrections in the specified"time period. The costs and expenses
shall be billed to the Association, and if unpaid, shall be entered in equal
amounts on the tax roll as a special assessment or special charge against
the residential Parcels in Big Muskego Estates, collected with any other
taxes levied thereon for the year in which the work is completed.
THIS INSTRUMENT DRAFTED BY BRIAN D TURK, CITY OF MUSKEGO PLANNING DEPARTMENT
W182 S8200 RACINE AVENUE MUSKEGO WI 53150
Approved by Public Works Committee June 23, 2003
PUBLIC IMPROVEMENT COST BREAKDOWN
BIG MUSKEGO EST A TES
Beg. Bal ADJ. BAL.
#1 ROAD CONSTRUCTION
a. Excavation to subgrade $40,000.00 $40,000.00 8 b. Stone base material $42,000.00 $42,000.00
c. Bituminous base course pavement $64,000.00 $64,000.00
d. Bituminous surface course pavement $26,000.00 $26,000.00
e. Concrete pavement $0.00 $0.00
f. Other $0.00 $0.00
g. Engineering Inspections $4,200.00 $4,200.00
$ I 76,200.00 $0.00 $ I 76,200.00
#2 SITE GRADING-LANDSCAPING
a. Lot grading $159,000.00 $159,000.00
b. Drainage ditch construction $0.00 $0.00
c. Retention pond construction $63,000.00 $63,000.00
d. Parking area construction-ind pavement $0.00 $0.00
e. Tree & shrub plantings $50,000.00 '$50,000.00
f. Landscaping as specified by City $0.00 $0.00
g. Erosion control $10,000.00 $10,000.00
h. Engineering Inspections $3,500.00 $3,500.00
í. Other $0.00 $0.00
$285,500.00 $0.00 $285,500.00
#3 TOPSOIL, SEEDING/SODDING
a. Road ditch area .$0.00 $0.00
b. Terrace areas - in ROW $10,000.00 $10,000.00
c. Drainage ditches $0.00 $0.00
d. Retention ponds $5,000.00 $5,000.00 .
e. Areas as specified by City $0.00 $0.00
f. Engineering Inspections $3,000.00 $3,000.00
g. Other $0.00 $0.00
$18,000.00 $0.00 $18,000.00
#4 CONCRETE IMPROVEMENTS
a. Curb & Gutter $46,500.00 $46,500.00
b. Sidewalk-Bike Path $20,000.00 $20,000.00
c. BIvd.ltraffic islands $0.00 $0.00
d. Interrn Inlets $11,000.00 $11,000.00
e. Engineering Inspections $7,300.00 $7,300.00
f. Other $0.00 $0.00
$84,800.00 $0.00 $84,800.00
#5 SANITARY SEWER SYSTEM
a. Mains,risers & Manholes $333,000.00 $333,000.00
b. Laterals $86,600.00 $86,600.00
c. Dumping station & Generator $0.00 $0.00
d. Force main $0.00 $0.00
e. Grinder pumps &chamber-indiv dweIIíng $0.00 $0.00
f. Engineering Inspections $ I 0,000.00 $10,000.00
g. Other $0.00 $0.00
$429,600.00 $0.00 $429,600.00 .
Page 1012
PUBLIC. IMPROVEMENT COST BREAKDOWN
. BIG MUSKEGO ESTATES
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#6 WATER MAIN SYSTEM
a. Mains, valves & manholes
b. Hydrants & leads
c. Water services
d. Well & pumphouse
e. Engineering Inspections
f. Other
#7 STORM SEWER SYSTEM
a. Mains & manholes
b. Catch basins & leads
c. Culverts
d. Drain tile
e. Headwalls/discharge structures
f. Engineering Inspections
g. Other
#8 SPECIAL/MISC IMPROVEMENTS
a. Street lights
b. Street signs
c. Signs as specified by City
d. Erosion ControllVegetation Retainage
e. Other - Ag Use Penalty
. #9 FEES
a. City administration
b. Eng. inspections (req for all LOC)
c. Engineering-as built drawings for wls
d. Legal
e. Land acquisition
f. Other
TOTAL PROJECT ESTlMA TE
LETTER OF CREDIT AMOUNT
Engineering**Total engineering Costs included
in total Project Estimate**
.
Beg. Bal ADJ. BAL.
$190,200.00 $190,200.00
$28,800.00 $28,800.00
$81,000.00 $81,000.00
$0.00 $0.00
$9,500.00 $9,500.00
$0.00 $0.00
$309,500.00 $0.00 $309,500.00
$277,000.00 $277,000.00
$33,000.00 $33,000.00
$0.00 $0.00
$0.00 $0.00
$15,000.00 $15,000.00
$8,500.00 $8,500.00
$0.00 $0.00
$333,500.00 $0.00 $333,500.00
$9,000.00 $9,000.00
$0.00 $0.00
$0.00 $0.00
$50,000.00 $50,000.00
$17,967.30 $17,967.30
$76,967.30 $0.00 $76,967.30
$3,000.00 $3,000.00
$0.00 $0.00
$26,500.00 $26,500.00
$1,000.00 $1,000.00
$0.00 $0.00
$0.00 $0.00
$30,500.00 $0.00 $30,500.00
$1,744,567.30 $0.00 $1,744,567.30
$72,500.00
Page 2 of2
06/11/03 11:11 FAX 414 274 2709 _ZILBER LTD. /TRI 14Ì002 .
...
"
First
Business
Bank
.
DRAFT
Letter of Credit No: 634
Amount: $ 1,744,567.30
Date:
Applicant: Towne Realty, Inc.
710 N. Plankinton Ave.
Milwaukee, WI 53203
Beneficiary: City of Muske go
P.O. Box: 749
.
W182 S8200 Racine Ave.
Muskego, WI 53150-0749
Dear Sirs:
We hereby issue this Irrevocable Standby Documentary Letter of Credit in YQ\lr favor
which is available by beneficiary's dxaft(s) at sight drawn on First Business Bank-
Milwaukee. Each Draft accornpanying documents must state "Drawn under First
Business Bank-Milwaukee Standby Letter of Credit No. 634".
.
"
This Standby Letter of Credit is to provide a guarantee to the City of Muske go for the
performance of Applicant obligations ,under that certain agreement dated
, 2003 between the City of Muske go and Applicant.
DRAFTS ARE TO BE ACCOMPANIED BY:
A statement signed by the Mayor of the City of Muskego stating that Applicant has failed
to complete the constructJoJ;\ of subdivision improvernents in accordance with said
Agreement or otherwise comply with the obligations of the Agreement. Said statement
shall set forth the estimated amount necèSsary fOf the City of Muskego to complete such
improvements Of otherwise comply with the obligations of the Agreement.
Continued on Page Two (2) which is àn integral part of this Standby Letter of Credit
.
18500 W. Corporate Drive . Brookfield, WI 53045 . 262-792-1400' Fax 262-792-7129 . www,1bbmilwaukee.com
" . . .
_~003 , . 06/11/03' 11'11 FAX 414 274 2709 ZILBER LTD, /TRI
-
,
.
Page 2, an Integral part of Standby Letter of Credit No: 634
SPECIAL' CO~ONS:
This Standby Letter of Credit will tenuinatc on the _day of . 2004 provided,
however, First Business Bank-Milwaukee sha1l give written tiotice to the beneficiary of its intention to terminate tWs standby ex-adit at least ninety (90) days prior to the _day of , 2004. After said date. this letter of credit can only terminate upon ninety (90) days written notice to the beneficiary.
.
It is hereby agi:eed by all parties hereto that the -referenoe to "Agreement" is for
identification purpose only and such reference shall not be construed in any manner to
require First Business Bank-Milwaukee, to inquire into its terms and obligations.
We encourage with you that drafts drawn under and in compliance with the tenus of this crec!it wül be duly honored jf presented on or before the expiration date: This original Standby Letter of Credit must be subnûtted to us together with any drawings hereunder for our endorsement of any payments effected by us and/or for cancellation.
. Very Truly Yours,
First Business Bank-Milwaukee
711c~' k~ By: Michael J. Wiatkowski
Title: Senior Vice President
-~
Deed of Conservation Easement. Big Muskego Estates Subdivision
. THIS DEED OF CONSERVATION EASEMENT is made this day of ,
2003 by Homes By Towne of Big Muskego Estates LLC having an address of c/o
Towne Realty, Inc. 710 North Plankinton Avenue, Milwaukee, WI 53203. ("Grantors") in
favor of the City' of Muskego, a municipal corporation having an address of W 182 S8200
Racine Avenue, P. O. Box 749, Muskego, WI., 53150 ("Grantee").
Witnesseth:
WHEREAS, Grantors are the sole owners in fee simple of certain real property in
Waukesha County, Wisconsin, more particularly described as
Outlot 3 of Big Muskego Estates Subdivision, Being a subdivision of part of government lots
2 and 3 in the Southwest 1/4 of fractional Section 13 and part of the Northwest 1/4 and
Southwest 1/4 of the Southeast 1/4 of Section 13, all in Town 5 North, Range 20 East, in the
City of Muskego, Waukesha County, Wisconsin
(herein referred to as the "Property"); and.
WHEREAS the Property described above possesses significant environmental features
including floodplains and shore land-wetlands of great importance to Grantees and the
people of the City of Muskego; and
WHEREAS the specific conservation values of the Property are further documented in
an inventory of relevant features of the Property as found in the Applied Ecological
Services (AES) report titled Veoetation and Ecolooical Conditions of The City of
Muskeoo, dated January 2001, and incorporated by this reference ("Baseline
Documentation"). Said report consists of studies, maps, photographs, and other
documentation that the parties agree prQvide, collectively, an accurate representation of
the Property at the time of this grant and which is intended to serve as an objective,
though nonexclusive, information baseline for monitoring compliance with the terms of
this grant, and .
.
WHEREAS, Grantors intend that the conservation values of the Property be preserved
and maintained by permitting only those land uses on the Property that do not
significantly impair or interfere with said values, including, without limitation, those land
uses relating to open space existing at the time of this grant, and stormwater
management; and
WHEREAS, Grantors further intend, as owners of the Property, to convey to the Grantee
the right to preserve and protect the conservation values of the Property in perpetuity;
and
NOW, THEREFORE, in consideration of the above and mutual covenants, terms,
conditions, and restrictions contained herein, and pursuant to the law of the State of
Wisconsin, Grantors hereby voluntarily grant and convey to Grantee a conservation
easement in perpetuity over the Property to the extent hereinafter set forth ("Easement")
free and clear of all encumbrances except recorded easements, declaJations and
restrictions, municipal zoning ordinances, and real estate taxes in year of closing.
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Big Muskego Estates Conservation Easement
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SECTION 1. Purpose. It is the purpose of this Easement to assure that the Property will
be retained forever in its open space and shore land-wetland condition and to prevent
any use of the Property that will impair or interfere with the conservation values of the
Property. Grantors intend that this Easement will confine the use of the Property to such
activities, including, without limitation, those involving stormwater management and
passive open space uses, as are not inconsistent with the purpose of this Easement.
SECTION 2. Rights of Grantee. To accomplish the purpose of this Easement the
following rights are conveyed to the Grantee by this Easement.
(a) To preserve and protect the conservation values of the Property;
(b ) To enter upon the Property at reasonable times in order to monitor compliance with
and otherwise enforce the terms of this Easement in accordance with Section 6;
provided that, except in cases where Grantee determines that immediate entry is
required to prevent, terminate, or mitigate a violation of this Easement, such entry
shall be upon prior reasonable notice to Grantors, and Grantee shall not in any
case unreasonably interfere with Grantor's use and quiet enjoyment of the
Property; and '
(c) To prevent any activity on or use of the Property that is inconsistent with the
purpose of this Easement and to require the restoration of such areas or features
of the Property that may be damaged by any inconsistent activity or use, pursuant
to the remedies set forth in Section 6.
(d) For Grantee or owners of any lands described in Exhibit A attached hereto, and
their successors, heirs, and assigns to use said land for stormwater management
purposes as may be approved by the City from time to time.
SECTION 3. Prohibited Uses. Any activity on or use of the Property inconsistent with
the purpose of this Easement is prohibited. Without limiting the generality of the forgoing,
the following activities and uses are expressly prohibited: Clear cutting or removal of
trees, dredging or filling of wetlands except as may be authorized by agencies of
jurisdiction including but not limited to the Wisconsin Department of Naiural Resources
and the US Army Corps of Engineers.
SECTION 4. Reserved Rights. Grantors reserve to themselves, and to their personal
representatives, heirs, successors, and assign's, all rights accruing from their ownership
of the Property, including the right to engage in, or permit or invite others to engage in,
all uses of the Property that are not expressly prohibited herein and are not inconsistent
with the purpose of this Easement.
SECTION 5. Notice and Approval
5.1 Notice of Intention to Undertake Certain Permitted Actions. The purpose of
requiring Grantors to notify Grantees prior to undertaking certain permitted activities, as
provided in paragraph 4, is to afford Grantees an adequate opportunity to monitor the
activities in question to ensure that they are designed and carried out in a manner that is
not inconsistent with the purpose of "this Easement. Whenever notice is required
Grantors shall notify Grantee in writing no less than thirty (30) days prior to the date
Grantors intend to undertake the activity in question. The notice shall .describe the
,
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Big Muskego Estates Conservation Easement
Page 3
nature, scope design, location, timetable, and any other material aspect of the proposed
activity in sufficient detail to permit Grantee to make an informed judgment as to its
consistency with the purpose of this Easement.
e
5.2 Grantees Approval. As set forth in paragraph 5.1 , Grantee shall grant or withhold
its approval in writing within sixty (60) days of receipt of Grantor's written request
therefore. Grantee's approval may be withheld only upon a reasonable determination by
Grantee that the action as propose would be inconsistent with the purpose of this
Easement.
SECTION 6. Grantee's Remedies
6.1 Notice of Violation; Corrective Action. If Grantee detenmines that a violation of the
terms of this Easement has occurred or is threatened, Grantee shall give written notice
to Grantors of such violation and demand corrective action sufficient to cure the violation
and, where the violation involves injury to the Property resulting from any use
inconsistent with the purpose of this Easement, to restore the portion of the Property so
injured to its prior condition in accordance with a plan approved by Grantee;
6.2 Injunctive Relief. If Grantors fail to remedy the violation within sixty (60) days after
receipt of notice thereof from Grantee, or under circumstances where the violation
cannot be reasonably cured within a sixty (60) day period, fail to begin curing such
violation with the sixty (60) day period, or fail to continue diligently to cure such violation
until finally cured, Grantee may bring an action at law or in equity in a court of competent
jurisdiction to enforce the terms of this Easement, to enjoin the violation, ex parte as
necessary, by temporary or permanent injunction, and to require the restoration of the
Property to the condition that existed prior to any such injury. -
6.3 Damages. Grantee shall be entitled to recover damages for violation of the terms of
the Easement or injury to any conservation values protected by this Easement,
including, without limitation, damages for the loss of scenic, aesthetic, or environmental
values. Without limiting Grantor's liability therefore, Grantee, in its sole discretion, may
apply any damages recovered to the cost of undertaking any corrective action on the
Property.
6.4 Emergency Enforcement. If Grantee, using reasonable discretion, detenmines that
circumstance require immediate action to prevent or mitigate significant damage to the
conservation values of the Property, Grantee may pursue its remedies under this section
6 without prior notice to Grantors or without waiting for the period provided for cure to
expire.
6.5 Scope of Relief. Grantee's rights urider this Section 6 apply equally in the event of
either actual or threatened violations of the terms of this Easement. Grantors agree that
Grantee's remedies at law for any violation of terms of this Easement are inadequate
and that Grantee shall be entitled to the injunctive relief described in paragraph 6.2, both
prohibitive and mandatory, in addition to such other relief to which Grantee may be
entitled, including specific performance of the terms of this Easement, without the
necessity of proving either actual damages or the inadequacy of otherwise available
legal remedies. Grantee's remedies described in this Section 6 shall be cumulative and
shall be in addition to all remedies now or hereafter existing at law or in equity. -
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Big Muskego Estates Conservation Easement
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6.6 Costs of Enforcement. All reasonable costs incurred by Grantee in enforcing the
terms of this Easement against Grantors, including, without limitatiòn, costs and
expenses of suit and reasonable attorney's fees, and any costs of restoration
necessitated by Grantor's violation of the terms of this Easement shall be borne by
Grantors; provided, however, that if Grantors ultimately prevail in a judiciàl enforcement
action each party shall bear its own costs.
6.7 Forbearance. Forbearance by Grantee to exercise its rights under this Easement in
the event of any breach of any term of this Easement by Grantors shall not be deemed
or construed to be a waiver by Grantee of such term or of any subsequent breach of the
same or any other term of this Easement or of any of Grantee's rights under this
Easement. No delay or omission by Grantee in the exercise of any right or remedy upon
any breach by Grantors shall impair such right or remedy or be construed as a waiver.
6.8 Waiver of Certain Defenses. Grantors hereby waive any defense of laches,
estoppel, or prescription.
6.9 Acts Beyond the Grantor's Control. Nothing contained in this Easement shall by
construed to entitle Grantee to bring any action against Grantors for any injury to or
change in the Property resulting from causes beyond Grantor's control, including,
without limitation, fire, flood, storm, and earth movement, or from any prudent action
taken by Grantors under emergency conditions to prevent, abate, or mitigate significant
injury to the Property resulting from such causes.
SECTION 7. Access. No right of access by the general public to any portion of the
Property is conveyed by this Easement. .
SECTION 8. Costs, Liabilities, Taxes, and Environmental Compliance.
8.1 Costs, Legal Requirements, and Liabilities. Grantors retain all responsibilities and
shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep,
and maintenance of the Property, including the maintenance of adequate liability
insurance coverage. Grantors remain solely responsible for obtaining any applicable
governmental permits and approvals for any construction or other activity or use
permitted by this Easement, and all such construction or other activity or use shall be
undertaken in accordance with all applicable federal, state, and local laws, regulations,
and requirements. Grantors shall keep the Property free of any liens arising out of any
work performed for, materials furnished to, or obligations incurred by the Grantors.
8.2 Taxes. Grantors shall pay before delinquency 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
as result of, this Easement, and shall furnish Grantee with satisfactory evidence of
payment upon request.
8.3 Representations and Warranties. Grantors represent and warrant that, after
reasonable investigation and to the best of their knowledge:
(a) No substance defined, listed, or otherwise classified pursuant to any federal, state,
or local law, regulation, or requirements as hazardous, toxic, polluting, or otherwise
contaminating to the air, water, or soil, or in any way harmful or threatening to
Big Muskego Estates Conservation Easement
Page 5
human health or the environment exists or has been released, generated, treated,
stored, used, disposed of, deposited, abandoned, or transported in,. on, from, or
across the Property;
(b) There are not now any underground storage tanks located on the Property,
whether presently in service or closed, abandoned, or decommissioned, and no
underground storage tanks have been removed from the Property in a manner not
in compliance with applicable federal, state, and local laws, regulations, and
requirements;
(c) Grantors and their Property are in compliance with all federal, state, and local laws,
regulations, and requirements applicable to the Property and its use;
(d) There is no pending or threatened litigation in any way affecting, involving, or
relating to the Property; and
(e) No civil or criminal proceedings or investigations have been instigated at any time
or are now pending, and no notices, claims, demands, or orders have been
received, arising out of any violation or alleged violation of, or failure to comply
with, any federal state, or local, regulation, or requirement applicable to the
Property or its use, nor do there exist any facts or circumstances that Grantors
might reasonably expect to form the basis for an such proceedings, investigations,
notices, claims, demands, or orders.
8.4 Remediation. If at any time, there occurs, or has occurred, a release in, on, or about
the Property of any substance now or hereafter defined, listed, or otherwise classified
pursuant to any federal, state, or local la, 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, Grantors agree to take all steps
necessary to assure its containment and remediation, including any cleanup that may be
required, unless the release was caused by the Grantee, in which case the Grantee shall
be responsible therefore.
8.5 Control. Nothing in this Easement shall be construed as giving rise, in the absence
of a judicial decree, to any right or ability in Grantee to exercise physical or managerial
control over the day-to-day operations of the Property, or any of the Grantor's activities
on the Property, or otherwise to become an operator with respect to the Property within
the meaning of The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA").
8.6 Hold Harmless. Grantors hereby release and agree to hold harmless, indemnify and
defend Grantee and its members, directors, officers, employees, agents, and contractors
and the heirs, personal representatives, successors, and assigns of each of them
(collectively "Indemnified Parties") from and against any and all liabilities, penalties,
fines, charges, costs, losses, damages, expenses, causes of action, claims, demands,
orders, judgments, or administrative actions, including, without limitation, reasonable
attorney's fees, arising from or in any way connected with (1) injury to or death of any
person, or physical damage to any property, resulting from an act, omission, condition,
or other matter related. to or occurring on or about the Property, regardless of cause,
unless, due to the negligence of any of the Indemnified Parties; (2) the violation or
alleged violation of, or other failure to comply with, any state, federal, or local law,
. .
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Big Muskego Estates Conservation Easement
Page 6
regulation, or requirement, including, without limitation, CERCLA, by any person other
than any of the Indemnified Parties, in any way affecting, involving, or relating to the
Property; (3) 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, soil, or in any way harmful or threatening to
human health or the environment, except to the extent caused by any of the Indemnified
Parties; and (4) the obligations, covenants, representations, and warranties of
paragraphs 8.1 through 8.5.
SECTION 9. Extinguishment and Condemnation.
9.1 Extinguishment. If circumstances arise in the future that render the purpose of this
Easement impossible to accomplish, this Easement can only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction. The amount of the proceeds to which Grantee shall be entitled, after the
satisfaction of prior clams, from any sale, exchange, or involuntary conversion of all or
any portion of the Property subsequent to such termination or extinguishment, shall be
the stipulated fair market value of the Easement, or proportionate part thereof, as
determined in accordance with paragraph 9.2.
9.2 Valuation. This Easement constitutes a real property interest immediately vested in
Grantee, which, for the purposes of paragraph 9.1, the parties stipulate to have a fair
market value determined by multiplying (1) the fair market value of the Property
unencumbered by the Easement (minus any increase in value after the date of this grant
attributable to improvements) by (2) xfy which is the ratio of the value of the Easement at
the time of this grant to the value of the Property, without deduction for the value of the
Easement, at the time of this grant.
.
9.3 Condemnation. If all or any part of the Property is taken by exercise of the power of
eminent domain or acquired by purchase in lieu of condemnation, whether by public,
corporate, or other authority, so as to terminate this Easement, in whole or in part,
Grantors and Grantee shall act jointly to recover the full value of the interest in the
Property subject to the taking or in lieu purchase and all direct or indirect damages
resulting therefrom. All expenses reasonably incurred by Grantors and Grantee in
connection with the taking or in lieu purchase shall be paid out of the amount recovered.
Grantee's share of the balance of the amount recovered shall be determined by
multiplying that balance by the ratio set forth in paragraph 9.2
9.4 Application of Proceeds. Grantee shall use any proceeds received under the
circumstances described in this Section 9 in a manner consistent with its conservation
purposes, which are exemplified by this grant.
SECTION 10. Assignment. This Easement is transferable. Grantee may assign its
rights and obligations to any successor authorized to acquire and hold conservation
easements. As a condition of such transfer, Grantee shall require that the conservation
purpose that this grant is intended to advance continue to be carried out. Grantee
agrees to give written notice to Grantors of an assignment at least thirty (30) days prior
to the date of such assignment. The failure of Grantee to give such notice shall not affect
the validity of such assignment nor shall it impair the validity of this Easement or limit its
enforceability in any way.
.
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Big Muskego Estates Conservation Easement
Page 7
'.
SECTION 11. Subsequent Transfers. Grantors agree to incorporate the terms of his
Easement by reference in any deed or other legal instrument by which they divest
themselves of any interest in all or a portion of the Property, including, without limitation,
a leasehold interest. Grantors further agree to give written notice to the date of such
transfer of any interest at least thirty (30) days prior to the date of such transfer. The
failure of Grantors to perform any act required by this paragraph shall not impair the
validity of this Easement or limit its enforceability in any way.
.
SECTION 12. Estoppel Certificates. Upon request by the Grantors, Grantee shall
within thirty (30) days execute and deliver to Grantors, or to any party designated by
Grantors, any document, including an estoppel certificate, which certifies, to the best of
the Grantee's knowledge, Grantor's compliance with any obligation of Grantors
contained in this Easement or otherwise evidences the status of this Easement. Such
certification shall be limited to the condition of the Property as of Grantee's most recent
inspection. If Grantor's request more current documentation, Grantee shall conduct and
inspection, at Grantor's expense, within thirty (30) days of receipt of Grantor's written
request therefore.
SECTION 13. Notices. Any demand, notice, request, consent, approval, or
communication that either party desires or is required to give to the other shall be in
writing and either served personally or sent by first-class mail, postage prepaid,
addressed as follows:
To Grantors: Homes By Towne of
Big Muskego Estates LLC
c/o Towne Realty, Inc.
710 North Plankinton Avenue
Milwaukee, WI 53203
Attn: William Wigchers
.
To Grantee: City of Muskego
P. O. Box 749
Muskego, WI 53150
Or to such other address as either party from time to time shall designate by written
notice to the other.
SECTION 14. Recordation. Grantee shall record this instrument in a timely fashion in
the official records of Waukesha County, Wisconsin, and may re-record at any time as
may be required to preserve its rights in this Easement.
SECTION 15. General Provisions.
15.1 Controlling Law. The interpretation and performance of this Easement shall be
governed by the laws of the State of Wisconsin.
15.2 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of the grant to effect
the purpose of this Easement and the policy and purpose of The City of Muskego. If any
provision in this instrument is found to be ambiguous, an interpretation consistent with .
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Big Muskego Estates Conservation Easement
Page 8
the purpose of this Easement that would render the provision valid shall be favored over
any interpretation that would render it invalid,
15.3 Severability. If any provision of this Easement, or the application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of this
Easement, or the application of such provision to persons or circumstance other that
those as to which it is found to be invalid, as the case may be, shall not be affected
thereby,
15.4 Entire Agreement. This instrument sets forth the entire agreement of the parties
with respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
15.5 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
15,6 Joint Obligation. The obligations imposed by this Easement upon Grantors shall
be joint and severable.
15.7 Successors. The covenants, terms, conditions, and restrictions of this Easement
shall be binding upon, and inure to the benefit of, the parties hereto and their respective
personal representatives, heirs, successors, and assigns and shall continue as a
servitude running in perpetuity with the Property. The terms "Grantors" and "Grantee",
wherever used herein, and pronouns used in place thereof, shall include, respectively,
the above named Grantors and their personal representatives, heirs, successors, and
assigns, and the above named Grantee and its successors and assigns.
15.8 Termination of Rights and Obligations. A party's rights and obligations under this
Easement terminate upon transfer of the party's interest in the Easement or Property,
except that liability for acts or omission occurring prior to transfer shall survive transfer.
15.9 Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect
upon construction or interpretation.
15.10 Counterparts. The parties may execute this instrument 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.
Big Muskego Estates Conservation Easement
Page g
IN WITNESS HEREOF, Grantor has caused this Agreement to be signed by its
appropriate officers and their seals to be hereunto affixed in duplicate original
counterparts on the date and year first written above.
A. HOMES BY TOWNE OF BIG MUSKEGO ESTATES LLC
By:
NAME:
STATE OF WISCONSIN ) SS
WAUKESHA COUNTY)
PERSONALLY came before me this day of 2003, , to me
known to be the person who executed the foregoing instrument and acknowledged the
same.
Notary Public-State of Wisconsin
My Commission Expires
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Big MusKego Estates Conservation Easement
Page 10
IN WITNESS HEREOF, City has accepted this Deed of Conservation Easement to be
signed by its appropriate officers and their seals to be hereunto affixed in duplicate
original counterparts on the date and year first written above.
B. CITY OF MUSKEGO:
BY:
Mark Slocomb, Mayor
BY:
Jean K. Marenda, City Clerk-Treasurer
STATE OF WISCONSIN ) SS
WAUKESHA COUNTY )
PERSONALLY came before me this day of , 2003, the above named Mark
Slocomb, Mayor and Jean K, Marenda, City Clerk-Treasurer of the City of Muskego, to
me known to be the persons executed the foregoing instrument, and to me known to be
such Mayor and City Clerk-Treasurer of said municipal corporation, and acknowledged
that they executed the foregoing instrument as such officers as the deed of said
municipal corporation by its authority and pursuant to the authorization by the Common
Council from their meeting on the 24th day of June, 2003.
Notary Public-State of Wisconsin
My Commission Expires
CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Deed of Conservation
Easement for Big Muskego Estates Subdivision, Muskego, Wisconsin, as accepted by
the Common Council pursuant to the authorization by the Common Council from their
meeting on the 24th day of June, 2003.
. BY THE COMMON COUNCIL
Jean K. Marenda, City Clerk-Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
This day , 2003.
My commission expires
This document drafted by:
Brian D. Turk, Director of Pianning
City of Muskego, WI
Big Muskego Estates Conservation Easement
Page 11
Exhibit "A"
Boundary J;lescription of entire lands to be known as Big Muskego Estates
Being a subdivision of part of government lots 2 and 3 in the Southwest1/4 of
fractional Section 13 and part of the Northwest 1/4 and Southwest 1/4 of the
Southeast 1/4 of Section 13, all in Town 5 North, Range 20 East, in the City of
Muskego, Waukesha County, Wisconsin, bounded and described as follows:
Commencing at the Northeast corner of the Southeast 1/4 of said section;
Thence South 87'18'00" West along the north line of said 1/4 Section 1834.35
Feet to the point of beginning of lands to be described; Thence South 01'11'16"
East 1789.28 Feet to a point; Thence South 89'01 '34" West 296.89 feet to a
point on the centerline of Durham Drive; Thence North 38'45'12" West along
said centerline 444.48 Feet to a point; Thence North 36'03'13" East 14.43 Feet
to a point on the aforesaid centerline; Thence North 36'58'26" West along said
centerline 2.14 Feet to a point; Thence North 40'36'26" West along said
centerline 425.47 Feet to a point; Thence South 49'23'34" West along the
Northwest line of Certified Survey Map No. 9409 a distance of 500.00 Feet to a
point on the Southwest line of said Certified Survey Map; Thence South
40'36'26" East along said Southwest line 485.82 Feet to a point on the South
line of the North 1/4 of said government lot 3; Thence South 88'07'00" West
along said South line 950.00 Feet to a meander corner that is North 88'07'00"
East 1829 Feet more or less from the water's edge of Big Muskego Lake;
Thence North 26'42'12" West along said meander line 486.10 Feet to a point
on the East line of Holz Drive, a public street; Thence North 07'24'05" West
along said Holz Drive, the East line of Certified Survey Map No. 7979 and .the
East line of Block A of Holz's Assessors Plat, a recorded plat, 961,00 Feet to a
point; Thence North 03'12'59" West along the East line of said Block A, 290.46
Feet to a point on the South line of Holz Drive; Thence North 87'27'18" East
along said South line 454.88 Feet to a point of the centerline of Durham Drive;
Thence South 43'04'00" East along said centerline 59.28 Feet to a point;
Thence North 46'56'00" East 83.68 Feet to a point; Thence North 02'32'42"
West 50.69 Feet to a point on the North line of the Southwest 1/4 of said
section; Thence North 87'27'18" East along said North line 799.39 Feet to the
center of section; Thence North 87'18'00" East along the North line of the
Southeast 1/4 of said section 827.64 feet to the point of beginning. Including
the lands between the meander line and the water's edge of Big Muskego
Lake, as shown on this plat. Containing 92.00 Acres of land, more or less, and
hereinafter referred to as the "Subdivision", and
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