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CCR2005236. COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #236-2005 RE-APPROVAL OF FINAL PLAT, SUBDIVIDER'S AGREEMENT, AND LETTER OF CREDIT Copper Oaks Subdivision WHEREAS, The Common Council approved a Final Plat, Subdivider's Agreement, and Letter of Credit for the Copper Oaks Subdivision as per Resolution #194-2005 on October 25, 2005 subject to approval of the City Attorney and City Engineer, all of said approvals were to be obtained within thirty (30) days of the date of approval of Resolution #194-2005 or the same would be null and void; and WHEREAS, Final approvals were never received within the 30-day time period and re- approval is needed; and WHEREAS, A Final Plat was submitted on October 3, 2005 by Glen Miller for the Copper Oaks Subdivision (f.k.a. Valley View Estates) located in the SE 1/4 of Section 4 to create 20 single-family lots and six outlots; and WHEREAS, The Plan Commission has recommended approval through Resolution #P.C. 126-2005 as amended; and . WHEREAS, The density of the subdivision is within the low-density constraints of the 2010 Comprehensive Plan and no amendments to said plan or a rezoning are required; and WHEREAS, The Subdivider's Agreement, Retention Pond Maintenance Agreement, Storm Water Management Plan and Letter of Credit have been received for Copper Oaks Subdivision and the Finance Committee has 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 re-approve the Final Plat for Copper Oaks 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. 087-2005. BE IT FURTHER RESOLVED That the Subdivider's Agreement, Retention Pond Maintenance Agreement, Storm Water Management Plan and Letter of Credit for Copper Oaks 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. . . . Reso. #236-2005 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 DAY OF 13th December ,2005. SPONSORED BY: FINANCE COMMITTEE Ald. Bob Melcher Ald. Nancy C. Salentine Ald. Eileen Madden This is to certify that this is a true and accurate copy of Resolution #236-2005 which was adopted by the Common Council of the City of Muskego. 12/05jmb 41(J1tL~J crn,W) ( Cjørk-Treasurer J . GLEN MILLER, DONNA BRADY, & DIANE DOMURA - CITY OF MUSKEGO COPPER OAKS SUBDIVIDER'S AGREEMENT This Agreement, made this 2nd day of February, 2005 by and between Glen Miller, Donna Brady, and Diane Domura, jointly and severally, (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 Copper Oaks Subdivision (the "Subdivision"), a part of the lands described as: Being a part of the SW % of the NE % and the NW % of the SE % of Section 4, T5N, R20E, in the city of Muskego, Waukesha County, Wisconsin, bounded and described as follows: Commencing at the NE % of said SE % of Section 4, THENCE S88036'24"W along the south line of said NE % section 4, 1441.77 feet to the POINT OF BEGINNING; THENCE SOo014'03"E, 618.43 feet; THENCE S88036'24"W, along the northerly line of Marlin Meadows 827.91 feet; THENCE NOo014'03"W, 618.43 feet; THENCE NOo011'56"W, 794.73 feet to the centerline of Martin Drive; THENCE S59046'20"E along the centerline of Martin Drive, 252.19 feet; THENCE continuing along the centerline of Martin Drive, 238.11 feet along an arc of a circle whose center is to the right whose radius is 494.80 feet whose chord bears S45059'11 "E, 235.82 feet; THENCE continuing along the centerline of Martin Drive S32012'09"E, 306.82 feet; THENCE continuing along the centerline of Martin Drive 363.13 feet along an arc of a circle whose center is to the left whose radius is 534.47 feet whose chord bears S51040'OO"E, . 356.19 feet; THENCE SOo014'03"E, 3.23 feet to the POINT OF BEGINNING. Said lands containing 854,678 square feet or 19.6207 acres, more or less, 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 Council have duly approved the final plat of Copper Oaks Subdivision contingent in part upon the execution and performance of this Agreement by the Subdivider. 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 20 parcels platted for single family residential use, all being under the Provisions of Chapters 17 and 18 of the Municipal Code, and under the auspices of RS-2 Suburban Residence District zoning. a) Single family parcels in this Plat 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 Page 2 Copper Oaks Subdividers Agreement . 2. Subdivider shall entirely at its expense: width. 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 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) Within six (6) months of approval of this Agreement by the Common Council, the Subdivider shall execute this Agreement, shall cause this Agreement to be recorded at the Waukesha County Register of Deeds, and shall provide City with evidence of recording. d) 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 Copper Oaks to be executed and recorded, and shall provide City with evidence of recording. e) 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 August 22, 2005, including off site improvements necessary to provide such roads and streets, including grading and gravel, curb and gutter, and asphalt street improvements, as approved by the 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 August 22, 2005 for storm and surface water drainage Page 3 Copper Oaks Subdividers Agreement . throughout the entire Subdivision and off site improvements as necessary, 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 Subdivider's cost additional storm drainage and erosion control measures prior to acceptance of improvements by the City of Muskego. 2. Grade and improve all lots, on and off site, in conformance with the Master Grading Plan as approved by the Director of Engineering and Building and Public Works Committee on August 16, 2004 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. 4. Execute and record a Maintenance Agreement in the form attached hereto, which document shall be incorporated herein and made part hereof, as approved by the Director of Engineering and Building and Public Works Committee on August 22, 2005 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 September 13, 2005 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. 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 City Forester prior to the release of occupancy permits. Planting may be deferred until the time that ninety percent (90%) of the homes have been completed or thirty-six (36) months after installation of the first lift of asphalt, whichever comes first. Page 4 Copper Oaks Subdividers Agreement . 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 August 22, 2005 and 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, on and off-site, in accordance with the Erosion Control Plan as approved by the Director of Engineering and Building and Public Works Committee on August 22, 2005 and in accordance with the plans and specifications on file in the City Building and Engineering Department. No construction or grading can begin until said permit is issued by the City, and no grading shall occur without a two (2) day 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. Insure 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. . 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 the signing of this Agreement 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 thirty-six (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 Subdivider authorizes the City to prepare all necessary as-built construction plans for improvements to 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 Page 5 Copper Oaks Subdividers Agreement . 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, sanitary sewers, storm water drainage facilities (excluding those facilities which are to be owned and maintained by Copper Oaks Home Owners Association) to the City, its successors and assigns, forever, free and clear of all encumbrances (except those encumbrances that may be acceptable to the City) whatever together with and including, without limitation because of enumeration, any and all land, 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 first lift of bituminous concrete pavement has been installed, when all said utilities have been completed and approved by the City Engineers 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; and 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 deeded necessary by the Director of Engineering and Buildings prior to the Final Plat being signed, provided such easements are along Page 6 Copper Oaks Subdividers Agreement . 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. SECTION IX: GENERAL CONDITIONS AND REGULATIONS Municipal Codes and Ordinances: All the provisions of the City's ordinances are incorporated herein by reference, and all such provisions shall bind the parties hereto and be a part of this Agreement as fully as if set forth at length herein. This Agreement and all work and improvements required hereunder shall be performed and carried out in strict accordance with and subject to the provisions of said ordinances. SECTION X: GUARANTEES The Subdivider shall guarantee the public roads and streets, sanitary sewers, 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 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 situation. SECTION XI : 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. 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. . . . Page 7 Copper Oaks Subdividers Agreement 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-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 XII: 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 provided for under this Agreement, by applicable Ordinances and as set forth in the plans and specifications on file in the City Building and Engineering Department. SECTION XIII 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. Page 8 Copper Oaks Subdividers Agreement .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. SECTION XIV: 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 and surface water drainage facilities required to serve such homes are connected with an operational system as required herein, and the installation of the bituminous concrete base course pavement has been properly installed, and 2. Deed Restrictions and the Stormwater Management Maintenance Agreement have been recorded, and 3. Video tape of sanitary sewer system has been completed by the Utilities Department, and the results found acceptable by the Utility Superintendent, and .4. Certification is provided to the Director of Engineering and Building by a Registered Land Surveyor that all lot grades conform to the Master Grading Plan, and 5. 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: 1. Street Tree Plans as required by Section III D (3) of this Agreement have been approved. SECTION XV: 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 October 25, 2005 in the amount of $633,642.00 as a guarantee that the required plans, improvements, 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 the release Page 9 Copper Oaks Subdividers Agreement . 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 Credit balance shall be entertained until the Developer's Deposit is satisfied unless otherwise authorized by the Common Council following a recommendation of the Finance Committee. 3. PRESERVATION OF ASSESSMENT RIGHTS: a) Waiver of Notice. In addition to other remedies provided to the City by this Agreement, the City shall have the right, without notice or hearing, to impose special assessments for any amount to which the City is entitled by virtue of this Agreement 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 Section 66.0703(7)(b), Wis. Statutes. b) Remedies not exclusive. The City may use any other remedies available to it under the Agreement or in law or equity in addition to, or in lieu of, the remedies provided herein. SECTION XVI: 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, 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 XVII: 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 XVIII: 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: Glen Miller, Donna Brady, and Diane Domura Attn: Glen Miller W502 Miller Road Burlington, WI 53105 (414) 257-3976 (414) 257-4052 Page 10 Copper Oaks 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. ,. . Page 11 Copper Oaks Subdividers Agreement . SECTION XIX: 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. SUBDIVIDERS By: Glen Miller, Owner By: Donna Brady, Owner By: Diane Domura, Owner STATE OF WISCONSIN ) ) SS WAUKESHA COUNTY ) PERSONALLY came before us this 2nd day of February, 2005, Subdividers, to us known to be the persons who executed the foregoing instrument and acknowledged the same. . Notary Public-State of Wisconsin My Commission Expires . Page 12 Copper Oaks 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: Charles Damaske, Mayor BY: Janice Moyer, City Clerk-Treasurer STATE OF WISCONSIN ) SS WAUKESHA COUNTY ) PERSONALLY came before me this 2nd day of February, 2005, the above named Charles Damaske, Mayor, and Janice Moyer, 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 b~ its authority and pursuant to the authorization by the Common Council from their meeting on the 25t day of January, 2005. . 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 Copper Oaks Subdivision, Muskego, Wisconsin, as entered into on the 2nd day of February, 2005, by and between Glen Miller, Donna Brady, and Diane Domura and the City Of Muskego, pursuant to the authorization by the Common Council from their meeting on the 25th day of January, 2005 BY THE COMMON COUNCIL Janice Moyer, City Clerk-Treasurer SUBSCRIBED AND SWORN TO BEFORE ME This 2nd day of February, 2005. My commission expires This instrument drafted by Jeff Muenkel, Director of Planning . City of Muskego PO Box 0749 Muskego, WI 53150-0749 COPPER OAKS SUBDIVISION RETENTION POND MAINTENANCE AGREEMENT . This Agreement is made and entered into this 2nd day of February, 2005, by and between Glen Miller, Donna Brady, and Diane Domura, jointly and severally, (hereinafter referred to as "Subdivider"), the incorporated Copper Oaks Home 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 Copper Oaks Subdivision (the "Subdivision"), being a part of the lands described as: Being a part of the SW % of the NE % and the NW % of the SE % of Section 4, T5N, R20E, in the city of Muskego, Waukesha County, Wisconsin, bounded and described as follows: . Commencing at the NE % of said SE % of Section 4, THENCE S88036'24"W along the south line of said NE % section 4, 1441.77 feet to the POINT OF BEGINNING; THENCE SOoo14'03"E, 618.43 feet; THENCE S88036'24"W, along the northerly line of Marlin Meadows 827.91 feet; THENCE NOoo14'03"W, 618.43 feet; THENCE NOoo11'56"W, 794.73 feet to the centerline of Martin Drive; THENCE S59046'20"E along the centerline of Martin Drive, 252.19 feet; THENCE continuing along the centerline of Martin Drive, 238.11 feet along an arc of a circle whose center is to the right whose radius is 494.80 feet whose chord bears S45059'11"E, 235.82 feet; THENCE continuing along the centerline of Martin Drive S32012'09"E, 306.82 feet; THENCE continuing along the centerline of Martin Drive 363.13 feet along an arc of a circle whose center is to the left whose radius is 534.47 feet whose chord bears S51040'OO"E, 356.19 feet; THENCE SOoo14'03"E, 3.23 feet to the POINT OF BEGINNING. Said lands containing 854,678 square feet or 19.6207 acres, more or less, and WHEREAS, The City has approved the plat of Copper Oaks Subdivision and the construction of storm water retention ponds within an outlot 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 Copper Oaks Subdivision; and WHEREAS, Copper Oaks Subdivision is upstream from Big Muskego Lake, 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 have established certain requirements for retention ponds and storm water management to be constructed in Copper Oaks Subdivision to minimize flooding and sediment migration to Little Muskego Lake and adjacent wetlands, watersheds, and other tributary properties; and . WHEREAS, The Subdivider has established Copper Oaks Home Owners Association, Inc. a non-stock corporation consisting of the owners of Parcels Lots 1-20 inclusive, hereinafter referred to as the "Association", which shall become the owner of certain outlots upon recording of the final plat and Copper Oaks 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 . . . Copper Oaks Subdivision Retention Pond Maintenance Agreement Page 2 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 August 22, 2005 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 August 22, 2005 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. 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 1-20 inclusive on an equal pro- rata 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 three thousand dollars ($3,000.00) 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 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 . . . Copper Oaks Subdivision Retention Pond Maintenance Agreement Page 3 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 Copper Oaks Subdivider's Agreement, which terms are incorporated herein, and shall be recorded with the Waukesha County Register of Deeds and shall be a covenant running with the land and binding upon all owners of said land and their successors in interest. 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. SUBDIVIDERS By: Glen Miller, Owner By: Donna Brady, Owner By: Diane Domura, Owner STATE OF WISCONSIN) SS WAUKESHA COUNTY ) PERSONALLY came before us this 2nd day of February, 2005, Subdividers, to us 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, the incorporated Copper Oaks 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. Copper Oaks Subdivision Retention Pond Maintenance Agreement Page 4 . B. COPPER OAKS HOME OWNERS ASSOCIATION, INC. By: Glen Miller, Director STATE OF WISCONSIN}SS WAUKESHA COUNTY} PERSONALL Y came before us this 2nd day of February, 2005, Glen Miller, to us known to be the person 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: Charles Damaske, Mayor By: Janice Moyer, City Clerk-Treasurer STATE OF WISCONSIN}SS WAUKESHA COUNTY} Personally came before me this 2nd day of February, 2005, the above named Charles Damaske, Mayor and Janice Moyer, 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 authoritrn and pursuant to the authorization by the Common Council from their meeting on the 25 h day of January, 2005 Notary Public, Waukesha County, Wisconsin . My commission expires . . . Copper Oaks Subdivision 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 Copper Oaks Subdivision, Muskego, Wisconsin, as entered into on this 2nd day of February, 2005 by and between Glen Miller, Donna Brady, and Diane Domura, the incorporated Copper Oaks Owners Association, Inc. and the City of Muske~o, pursuant to the authorization by the Common Council from their meeting on the 251 day of January, 2005 BY THE COMMON COUNCIL Janice Moyer City Clerk-Treasurer SUBSCRIBED AND SWORN TO BEFORE ME this 2nd day of February, 2005 Notary Public, Waukesha County, Wisconsin My commission expires . . . COPPER OAKS SUBDIVISION 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 Copper Oaks Subdivision, 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 Copper Oaks Home Owners Association, Inc. regarding the management of storm water in Copper Oaks 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 Resources, 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 ponds to be contained in Outlots in Copper Oaks. The Subdivider shall as-built the finish grade of the ponds and provide the as-built plans to the City and Copper Oaks Home Owners Association, Inc. The Subdivider shall also provide a bench mark at the ponds to be illustrated on the as-built drawings. 4. The Subdivider upon completion of the above referenced improvements shall convey by final plat and deed restrictions the improvements to Copper Oaks Home Owners Association, Inc. 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 Copper Oaks 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. . . . Copper Oaks Subdivision 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 ponds and storm water management within Copper Oaks 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 ponds will freeze-out all fish resulting in a rough fish free ponds thereby minimizing the risk of reintroduction of rough fish during flooding conditions into the adjacent Muskego Drainage Canal #1, navigable stream which is tributary to Muskego Lake. The City shall also administer an annual inspection of the storm water retention ponds to monitor any build-up of sedimentation on the floor of the ponds. Under Section 1, the Subdivider shall provide the City with an as-built drawing of the ponds after construction together with a bench mark at each pond which data shall become the basis for measurement of sediment build-up. The costs and expenses for the City to provide these services shall be entered on the tax roll as a special charge or special assessment on an equal basis against the residential properties located in Copper Oaks Subdivision collected with any other taxes levied thereon for the year in which the work is completed. Set forth below, is an outline of the City's responsibilities which has been agreed to by the DNR: 1. City of Muskego shall administer draw down and inspect for sediment build-up. Draw down of the retention ponds 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 discharge pipes. If sediment build-up has occurred above the invert elevation of the discharge pipes it must be removed prior to draw down. Draw down gate valves shall be closed within one week of commencement of the draw down. 2. Sediment build-up in ponds 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. SECTION 3 - DUTIES AND RESPONSIBILITIES OF COPPER OAKS HOME OWNERS ASSOCIATION, INC. An incorporated association of the owners of all single family lots in Copper Oaks Subdivision has been created for the purposes of managing and controlling Common Areas including the outlots which contain the storm water retention ponds. This owner's association is formally titled Copper Oaks Home Owners Association, Inc. 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 . . . Copper Oaks Subdivision Stormwater Management Plan Page 3 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 ponds. 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 adjacent canal or wetlands. 3. The Association shall be responsible for water quality in the storm water retention ponds 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 entered on the tax roll as a special charge or special assessment against Lots 1-20 inclusive on an equal pro-rata basis and collected with any other taxes levied thereon for the year in which the work is completed. THIS INSTRUMENT DRAFTED BY JEFF MUENKEL, CITY OF MUSKEGO PLANNING DEPARTMENT W182 S8200 RACINE AVENUE MUSKEGO WI 53150 August 22, 2005 ~!lK 4J 02 28 05 I 3 : 42 FAX 262 3 B 3 B . CITIZENS BANK r;"ilT f emmumn /'(ink F'lCC 1 RG: Letter of Credit No. 1,B.D. ~x ,Û" Q .Amount: $633,64200 Applicant: Glen A Miller Donna L Brady Diarlo S. lJomurat 8731 W Greenfield Ave Wt-'St Allis, WI532\4 Beneficiary: City of Mush.'go Post Offic~ Box 749 W 182S8200 Racine Ave Muskego, WI 53 I 50-0749 Dear Sirs: We hereby issue this irrevocable documentary credit in your favor which is available by heneficiary's draft(s) at sight dra\\-ll on Citizens Bank of Mukwonago. P.acn Draft accompanying docmnents must state "Drawn Under Citizens Bank of Mukwonago Docu.meniar}' Credit No. TBD " This Standby Credit is to provide a guarantee to the City of Muskego fOT the performance of Applicant obligations under that certain agreement dated _' 2005 IDA TE OF CLOSING MEETING WITH THE CITYI between the City of Muskego lìIld Applicant DRAFTS ARE TO,BE ACCOMPA"ffiiD BY: A statcmlc'Dl signed by the Mayor ofthe City of Muskego stating that Applicant has failed to complete the construction of subdivision improvements in accordance with said Agreement or otherwise comply with the obligations of the Agreement. Said statement shan set forth the e:stìmated amount necessary for the of Muskego to complete such improvements or otherwise comply with the oblîgations of the Agreement. SPECIAL CONTIITIONS: This Standby Credit will terminate on the_ day of._, 2005 [MUST BE 15 MONTHS FROM DATE OF EXECUTION} provided, however. Citi7..ens Bank of Mukwonago shall give wTItten notice to tIle beneficiary of its intention to terminate this standby credit at ninety (90) days prior to the _ day 0 f ___, _' After said date, this lctterofcredît can only terminate upon ninety (90) days \\-TIlten notice tü the beneficiary. ß.LlU1d.lO~ Maill.Qfl1çç 3Ú I '\' H>':ichestt':r So;:r':t . ~d>sitç '\01 5314).OL'3 36J..ÒSDû 3(3,6~ 1 S Iknd P: 66.7-3561. F:: (J.6.2) 662~241S [;,15t Bn>ok P: )62; 642.-S2Í56 F-- U6.:;: 6-iL-S/~5) Ge,ne;\e( 5')4-.528') F: {2GD )9~;..Ú7.85 r Sew Be.lin fZS2 3),iy2Ú6;} p~tkvíew p. 563.6525 Fe .:6:' 30-6529 Rh...rvìew C",",." VenWR \X'~ek<:<;h', 1"l8 ~02;)8 p, \{C.;:7<,t"::<t '>h-~N',;<,' ,~~ ~':~:~< ",:;b:;;,n K,;.:;cm til '''1'..nt 814A)5.63 F: 2C2; ~H,~^CC] 02505 13.43 AX 282363 6515 CITIZE\S B\K ~nK . It is hereby agreed by aU parties heretO thai the reference to "Agreement' is for identification purposes only and such. reference shall not be construed in any manner to require CitiZl.'1lS Bank ofMul<wonago to inquire ìnto its te!'l!l5 and obligations. We agree with you that drafts draWll under andín compliance \\ìth the terms of this credit will be duly honored ìfprescnted on or before the expiration date. This original Standby Credit must be submitted to us together with any drawings hereunder for our endorsement of any payments effe..'"tcd by us and/or for cancellation. Sincerely, Citizens Bank of Mukwonago ~y Vke President \)\ // /~ \ /' /' \ . ~ >( I~ \ V . .