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CCR2002034AMENDED COMMON COUNCIL - CITY OF MUSKEG0 RESOLUTION #34-2002 APPROVAL OF FINAL PLAT, SUBDIVIDER'S AGREEMENT, RETENTION POND MAINTENANCE AGREEMENT, OPEN SPACE MANAGEMENT PLAN AGREEMENT, DEED OF CONSERVATION EASEMENT AND LETTER OF CREDIT Martin Estates Subdivision WHEREAS, A Final Plat was submitted on January 11, 2001 for the Martin Estates Subdivision located in the SW % of Section 7 to create 16 residential parcels and two outlots; and WHEREAS, The Plan Commission has recommended approval through Resolution #P.C. 011- 2002; and WHEREAS, The Subdivider's Agreement, Retention Pond Maintenance Agreement, Open Space Management Plan Agreement, Deed of Conservation Easement and Letter of Credit have been received for Martin Estates Subdivision and the Finance Committee has recommended approval. NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of Muskego, Martin Estates Subdivision, subject to approval of the City Engineer and all objecting and approving agencies, and receipt of all fees as provided in Section 18.14 of the Land Division Ordinance and any special assessments which may be due. BE IT FURTHER RESOLVED That the Subdivider's Agreement, Retention Pond Maintenance Agreement, Open Space Management Plan Agreement, Deed of Conservation Easement and Letter of Credit for Martin 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 this approval is subject to the passage and publication of Ordinance #1092. BE IT FURTHER RESOLVED That the face of the Final Plat shall bear the notation, "A parcel, and a single accessory structure for boarding purposes shall be allowed within Outlot 2. The stable shall conform to the following setbacks: 50-feet from all public right-of-ways; 50-feet 1 1 1 upon the recommendation of the Plan Commission, does hereby approve the Final Plat for I I 1 maximum of sixteen (16) domesticated livestock, generally construed to be one per salable I from the eastern plat boundary; and 25-feet from all other parcel boundaries." I BE IT FURTHER RESOLVED That the recorded Restrictions and Covenants for Martin Estates shall include the following in the section pertaining to Animals and Pets: "A maximum of sixteen (16) domesticated livestock, generally construed to be one per salable parcel, and a single accessory structure for boarding purposes shall be allowed within Outlot 2. The stable shall conform to the following setbacks: 50-feet from all public right-of-ways; 50-feet from the eastern plat boundary; and 25-feet from all other parcel boundaries." BE IT FURTHER RESOLVED That a digital *.DXF file, *.DGN file, or *.DWG file of this final plat be submitted to the City prior to City signatures being placed upon the plat (3-1/2" diskette) and all information transmitted on the diskettes shall be tied to and referenced to State Plane Coordinates NGVD 1929 or others approved by the City Engineer Reso. #34-2002 BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are hereby authorized to sign the necessary documents in the name of the City. DATED THIS 26TH DAY OF FEBRUARY ,2002 SPONSORED BY: FINANCE COMMITTEE Ald. Mark A. Slocomb Ald. David J. Sanders Ald. Nancy C. Salentine Deferred: 2/12/02 This is to certify that this is a true and accurate copy of Resolution #34-2002 which was adopted by the Common Council of the City of Muskego. COMMON COUNCIL -CITY OF MUSKEG0 RESOLUTION #34-2002 (Proposed Amendment) APPROVAL OF FINAL PLAT, SUBDIVIDER’S AGREEMENT, RETENTION POND MAINTENANCE AGREEMENT, OPEN SPACE MANAGEMENT PLAN AGREEMENT, DEED OF CONSERVATION EASEMENT AND LETTER OF CREDIT Martin Estates Subdivision WHEREAS, A Final Plat was submitted on January 11, 2001 for the Martin st es Subdivision located in the SW % of Section 7 to create 16 residential parcels r.; an and WHEREAS, The Plan Commission has recommended approval rough esolution #P.C. 011- 2002; and \ bdivider’s Agreement, Retention nce Agreement, Open ent and Letter of Credit recommended NOW, THEREFORE, B Council of the City of Muskego, ineer and all objecting and ion 18.14 of the Land Division Agreement, Retention Pond Maintenance ent. Deed of Conservation Easement and approvals to be obtained within thirty Ordinance #1092. ued to be one per : 50-feet from all public right-of-ways; 50-feet from the eastern plat boundary; and 25-feet from all other parcel boundaries.” BE IT FURTHER RESOLVED That the recorded Restrictions and Covenants for Martin Estates shall include the following in the section pertaining to Animals and Pets: “A maximum of sixteen (16) domesticated livestock, generally construed to be one per salable parcel, and a single accessory structure for boarding purposes shall be allowed within Outlot 2. The stable shall conform to the following setbacks: 50-feet from all public right-of-ways; 50-feet from the eastern plat boundary; and 25-feet from all other parcel boundaries.” BE IT FURTHER RESOLVED That a digital ‘.DXF file, ‘.DGN file, or ’.DWG file of this final plat all information transmitted on the diskettes shall be tied to and referenced to State Plane be submitted to the City prior to City signatures being placed upon the plat (3-112” diskette) and Coordinates NGVD 1929 or others approved by the City Engineer Reso. #34-2002 BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are hereby authorized to sign the necessary documents in the name of the City. DATED THIS __ DAY OF , 2002. .- SPONSORED BY: FINANCE COMMITTEE Aid. Mark A. Slocomb Aid. David J. Sanders Ald. Nancy C. Salentine Deferred: 2/12/02 This is to certify that this is a true and accurate copy of Resolution #34-2002 which was I i adopted by the Common Council of the City of Muskego. 2/02jrnb Clerk-Treasurer a 0 a Credit No: 20021447 Amount: $319.580.00 February ,2002 Applicant: Martin Estates, LLC 1661 N. Water Street. Suite 230 Milwaukee, WI 53202 Beneficiary: City of Muskego Post Office Box 749 W182 St3200 Racine Ave. Muskego. WI 53150-0749 Dear Sirs: DRAFT We hereby issue this irrevocable documentary credit in your favor which is available by beneficiary's draft@.) at sight drawn on St. Francis Bank, F.S.B. Each draft accompanying documents must "Drawn Under St. Francis Bank Documentary Credit No. 20021447. This Standby Credit is to provide a guarantee to the City of Muskego for the 2002, between the City of Muskego and Applicant. performance of Applicant obligations under that certain agreement dated February , 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 construction of subdivision improvements in accordance with said Agreement or otherwise comply with the obligations of the Agreement. Said statement shall set forth the estimated amount necessary for the City of Muskego to complete such improvements or otherwise comply with the obligations of the Agreement. SPECIAL CONDITIONS: This Standby Credit will terminate on the day of , 2003 provided, however, St. Francis Bank shall give writlen notice to the beneficiary of its intention lo terminate this standby credit at ninety (90) days prior to the day of , 2003. After said date, this letter of credit can only terminate upon ninety (90).days written notice to the beneficiary. Continued on page two (2) which is an integral part of this Standby Credit F:\USERS!-COM\CRE\MartinEsla(es\LeHer 01 Creditdoc db 2/3/02 DRAFT Part 2, an integral part of Standby Credit No. 20021447 It is hereby agreed by all parties that the reference to "Agreement" is for identification purposes only and such reference shall not be construed in any manner lo required St. Francis Bank, to inquire into its terms and obligation. We encourage with you that drafls drawn under and in compliance with the terms of this credit will be duly honored if presented on or before the expiration date. The original Standby Credit must be submitted to us together with any drawings hereunder for our endorsement of any payments effected by us and/ or for cancellation. Very Truly Yours, St. Francis Bank, F.S.B. By: Douglas W. Brown Vice President F:\USERS\COM\CRE\MartinEslalesVener 01 Creditdoc db 2/1/02 ./ PUBLIC MPROVEMENT COST BREAKDOWN MARTIN ESTATES a ROAD CONSTRUCTION Excavation to subgrade b. Stone base material c. Bituminous base Muse pavement d. Bituminous surface course pavement e. Shoulders f. Clearing g. Engineering Inspections #2 SlTE GRADING-LANDSCAPING a. Lotgdmg b. Drainage ditch construction c. Retention pond construction d. Parking area construction-incl pavement e. Tree & shrub plantings f. Landscaping as specified by City g. Erosion control h. Engineering Inspections i. Razing Buildings a #3 TOPSOL, SEEDING/SODDING oad ditch area enaceareas-inROW c. Draiqge ditches-sod d. Retention ponds e. Areas as specified by City f. Engineeringhpections g. Other #4 CONCRETE lMPROVEMENTS a Cuh&Gutter b. Sidewalk c. BlvdJtraffic islands d. Ditch inverts e. Engineering Inspections f. Other Beg. Bal ADJ. BAL. $36.000.00 $40,000.00 $46,000.00 $21,000.00 $8,500.00 $5,400.00 $36,000.00 $40,000.00 $46.000.00 $21,000.00 $8,500.00 $5,400.00 $8,000.00 $8,OOO.00 $164.900.00 $0.00 $164,900.00 $0.00 $0.00 $41,000.00 $0.00 $0.00 $0.00 $6,000.00 $2.000.00 $0.00 $0.00 $41,000.00 $0.00 $0.00 $0.00 $6,000.00 $Z.M)O.OO $5,000.00 $5,000.00 SS4,OOO.OO $0.00 $54,000.00 $22,000.00 $0.00 $2,000.00 $28,000.00 $0.00 $5,000.00 $22,000.00 $0.00 $2,000.00 $28,000.00 $0.00 $5.000.00 $0.00 $0.00 $57,000.00 $0.00 $57,000.00 $0.00 $0.00 $0.00 $10,000.00 $3,000.00 $0.00 $0.00 $0.00 $10,000.00 $3.000.00 moo Pn nn $13,000.00 -~ ~~ I._."- $0.00 $13,000.00 \ Pqge 1 of 2 \ PUBLIC IMPROVEMW COST BREAKDOWN MARTIN ESTATES #5 SANITARY SEWER SYSTEM a. Mains,risers &Manholes h. Laterals c. Dumping station & Generator d. Forcemain e. Grinder pumps &chamber-indiv dwelling f. Engineering Inspections g. Other #6 WATER MAIN SYSTEM b. Hydraots&leads a Mains, valves & manholes c. Wafer services d. Well & pumphouse e. Engineering Inspections f. Other #7 STORM SEWER SYSTEM a. Mains &manholes e. Headwallsfdischarge shuctures f. Engineering Inspections g. Other #8 SPECIAUMISC IMPROVEMENTS a. Street lights h. Street signs c. Signs as specified by City d Erosion ControWegetation Relainage #9 FEES a. City administsation h. Eng. inspections (req for all LOC) c. Engineeringas built drawings for w/s d. Legal e. Land acquisition f. Other Ag Penalty @AL PROJECT ESTUlATE LETTER OF CREDIT AMOUNT I Engineering**Total engineering Costs included in total Project Estimate** I Beg. Bal ADJ. BAL. $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $7,500.00 $0.00 $0.00 $2.500.00 $0.00 $0.00 67.500.00 $0.00 $0.00 $2.500.00 $0.00 $0.00 $10,000.00 $0.00 $10,000.00 $~000.00 $3,000.00 $1,000.00 $I .ooo.oo $680.00 $680.00 $10,000.00 $10,000.00 $14,680.00 $0.00 914,680.00 $4,000.00 $4,000.00 $0.00 $0.00 $0.00 $0.00 $2,000.00 $2,000.00 $0.00 $0.00 $4,630.00 $4,630.00 $10,630.00 $0.00 $10,630.00 $324,210.00 $0.00 $324,210.00 Page 2 d 2 $20,500.00 I MARTIN ESTATES LLC - CITY OF MUSKEG0 MARTIN ESTATES- SUBDIVIDER'S AGREEMENT This Agreement, made this day of , 2002 by and between Martin 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 Martin Estates Subdivision (the "Subdivision"), described as: Part of the SE 'A and NE % of the SW 'A of Section 7, T5N R20E, City of Muskego. Waukesha County, Wisconsin, commencing at the NE corner of the SW 'A of said Section 7 being the point of beginning; thence S 86 55'15" W, 825.00 feet along the centerline of Field Drive: thence S 00' 56'41" E, 2654.45 feet; thence N 87' 19'13 E, 825.00 feet to a point being the SE corner of the SW 'A of Section 7; thence N 00'56'56 W. 2,660.20 feet to the point of beginning. Said parcel contains 50.33 gross acres, more or less. 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, 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 Martin Estates 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 : PLAlTING 1, This Subdividers Agreement addresses the development of 16 parcels platted for single family residential use, and two outlots platted for conservation. open space and stormwater retention purposes, all being under the Provisions of Chapters 17 and 18 of the Municipal Code, and under the auspices of COPD Conservation Planned Development District Overlay zoning. a) Single family parcels shall conform to the zoning requirements of RCE I COPD Residential Country Estate with Conservation Planned Development Overlay zoning, generally no more than 60,000 square feet in area, and having street yard setbacks of 50 feet, side yard offsets of 25 feet, and rear yard offsets of 25 feet. Parcel 15 is granted a 40 foot street yard setback in order to provide ample separation between on-site sanitary systems and storm water management appurtenances located in Outlot 1 0 Page 2 Martin Estates Subdividers Agreement FINAL 2/26/2002 0 b) Outlot 1 shall be reserved for conservation, common open space and stormwater management purposes consistent with COPD Conservation Planned Development Overlay zoning requirements, and shall be owned and maintained by an incorporated Owners' Association established by Subdivider c) Subdivider shall execute and record a Open Space Management Plan and Conservation Easement in the forms attached hereto as approved by the Plan Commission on relating to the privately owned outlots, to secure their maintenance in perpetuity. d) A maximum of sixteen (16) domesticated livestock, generally construed to be one per salable parcel, and a single accessory structure for boarding purposes shall be allowed within Outlot 2. The stable shall conform to the following setbacks: 50-feet from all public right-of-ways; 50-feet from the eastern plat boundary; and 25-feet from all other parcel boundaries. 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 (including but not limited to public right-of-way) dedicated or conveyed to the City by the Plat or otherwise. c) Within thirty (30) days after 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 thirty (30) days after approval by all approving authorities and waiver of objection by all objecting authorities. the Subdivider shall cause the Final Plat of Martin Estates to be executed and recorded, and shall provide City with evidence of recording. e) Provide the City with a one (1) mylar copy and eleven (11) paper copies of the signed Final Plat following the receipt of all signatures on the original muslin document. f) Place and install all survey 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 111 shall occur in one phase. SECTION 111 : 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 November 27, 2001 including off site improvements necessary to provide such roads and streets, as approved by the Director of Engineering and Building and Public Page 3 Martin Estates Subdividers Agreemenl FINAL 2/26/2002 0 2. 3. B. 1 2. 3. 0 C. 1, D. 1, 2. 3. a 4. Works Committee as indicated in the plans and specifications dated October 29, 2001 made a part hereof and on file with the Director of Engineering and Building Department. Restore any damage to existing pavement, curb, gutter, and landscaping which may result from construction of subdivision improvements. Reimburse the City for the cost of all street signs, street lights and light posts, traffic signs and posts, including the cost of their installation. STORM AND SURFACE WATER DRAINAGE AND MASTER GRADING PLAN: Construct, install, furnish and provide facilities as approved by the Director of Engineering and Building and Public Works Committee on November 27, 2001 for storm and surface water drainage throughout the entire Subdivision, and a Master Grading Plan, all in accordance with the plans and specifications dated October 29, 2001 on file in the City 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. 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 November 27, 2001 all in accordance with the plans and specifications October 29, 2001, on file in the City Building and Engineering Department. Restore with topsoil and seed. Establish dense vegetation. Execute and record a Retention Pond Maintenance Agreement in the form attached hereto as approved by the Director of Engineering and Building and Public Works Committee on November 27, 2001 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 Stormwater Management Plan and Retention Pond Maintenance Agreement. SANITARY SERVICE: Provide documentation to the Satisfaction of the Director of Building and Engineering and Waukesha County that each parcel is capable of sustaining on site sanitary waste facilities. LANDSCAPING: Preserve existing trees outside of the public right-of-way to the maximum extent possible, when installing the Subdivision improvements. Remove and lawfully dispose of: (a) the existing residential structure; (b) destroyed trees, brush, tree trunks, shrubs and other natural growth; (c) and all rubbish. 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 dated October 30, 2001, revised December 3, 2001 and on file in the City Building and Engineering Department. Install plantings without cost to City within the 30 foot landscape planting easement and mitigation area adjacent to Field Drive and Parcels 14 and 15, in accordance with plans to be approved by the Plan Commission in accordance with plans dated October 30, 2001, revised December 3, 2001 and on file in the City Building and Engineering Department. Page 4 Martin Estates Subdividers Agreement FINAL 2126/2002 E. 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 November 27. 2001 in accordance with the plans and specifications dated October 29, 2001 and on file in the City 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 on November 27, 2001 in accordance with the plans and specifications dated October 29, 2001 and Plan as approved by the Director of Engineering and Building and Public Works Committee 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. 5. Maintain Ten Thousand Dollars ($10,000.00) in the Letter of Credit, to be retained until adequate vegetation is established as determined by the Director of Engineering and Building. A reduction of fifty percent (50%) of the Ten Thousand Dollars ($10,000.00) portion of the Letter of Credit is allowable upon verification that fifty percent (50%) of disturbed areas are vegetated. If, upon a written notification by the Director of Engineering and Building or Building Inspection Department of non-compliance of Chapter 29, the terms are not corrected within five (5) days, the City may utilize the Ten Thousand Dollars($10.000.00) portion of the Letter of Credit to correct the terms of non- conformance. SECTION IV : TIME OF COMPLETION OF IMPROVEMENTS The improvements set forth in Section 111, except for final surface course of pavement, 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 eighty percent (80%) of the homes have been completed, or 36 months after the installation of the first lift of asphalt, whichever comes first. 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 Page 5 Martin Estates Subdividers Agreement FINAL 2/26/2002 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. 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, storm water drainage facilities (excluding those facilities which are to be owned and maintained by Owners' Association) to the City, it successors and assigns, forever, free and clear of all encumbrances 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. 0 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 11, 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 pay or reimburse the City in a timely manner may cause the City to cease all construction inspections until such time as all anticipated or outstanding inspection and administration fees have been satisfied. SECTION Vlll : MISCELLANEOUS REQUIREMENTS I 0 The Subdivider shall: 1. Easements: Provide any easements on Subdivider's land deeded necessary by the Director of Engineering and Building prior to the Final Plat being signed, provided such easements are along lot Page 6 Martin Estates Subdividers Agreement FINAL 2/26/2002 applicable side yard and offset distances required by the zoning for such lots. lines or to the rear of the lots and are not any more restrictive to the building of homes beyond the 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, surface water drainage improvements and all other improvements described in Section 111, 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 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. 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 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. 0 Page 7 Martin Estates Subdividers Agreement FINAL 2/26/2002 a b) Personal Liability of Public Officials. In carrying out any of the provisions of this Agreement or in exercising any power or authority granted to them thereby, there shall be no personal liability of the City officers, agents, independent contractors, 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. 0 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, on forms provided by the City, concurrent with the 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. t 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 on the attached Exhibits. I SECTION XI1 : CONSTRUCTION PERMITS: I 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 I I requirements of the applicable ordinances or regulations. Page 8 Martin Estates Subdividers Agreement FINAL 2/26/2002 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 Xlll : 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 surface water drainage facilities required to serve such homes are connected with an operational system as required herein, and installation of the bituminous concrete base course pavement has been properly installed, and 2. 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 3. Negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Planning Director 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 February 12, 2002 in the amount of $319,580.00 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 The Director of Engineering and Building will process all requests in accordance with policies Breakdown form, and signed original lien waivers for all work which is subject of release request. adopted by the Finance Committee, as may be amended from time to time. 2. DEVELOPER'S DEPOSIT: The Subdivider shall maintain a $5000.00 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 Page 9 Martin Estates Subdividers Agreemenl FINAL 2/26/2002 ~ ~~ a 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 permitted by Wisconsin 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 : 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 W 182 S8200 Racine Avenue Muskego, WI 53150-0749 (262) 679-5614 facsimile Planning@ci.muskego.wi.us (262) 679-4136 To Subdivider: Martin Estates LLC 1661 N. Water Street Suite 203 Milwaukee, WI 53202 (414) 221-1814 facsimile ed@realcapllc.com (414) 221-1812 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 XVI. PARTIES BOUND: Subdivider or his 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 areas, water facilities, drainage facilities, ditches, landscaping and all other improvements shall be the ultimate responsibility for the proper design and installation of streets improvements, drive.and parking 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 XVll . 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 Page 10 Martin Estates Subdividers Agreement FINAL 2/26/2002 a SECTION XVlll : 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. Martin Estates LLC By: Ed Carow. Managing Member STATE OF WISCONSIN ) SS WAUKESHA COUNTY ) PERSONALLY came before me this - day of , 2002- Ed Carow, Managing Member of Marlin Estates LLC, to me known to be the person who executed the foregoing instrument and acknowledged the same. Notary Public-State of Wisconsin My Commission Expires IN WITNESS HEREOF. Citv has caused this Aareement to be sianed bv its amromiate officers and their seals to be hereunto affixed in duplicate original counterparts on the date'and year first written ., I above. B. CITY OF MUSKEGO: BY: David L. DeAngelis. Mayor BY: Jean K. Marenda. CMC City Clerk-Treasurer STATE OF WISCONSIN ) SS WAUKESHA COUNTY ) PERSONALLY came before me this day of ,2002 the above named David L. DeAngelis. Mayor, and Jean K. Marenda CMC City Clerk-Treasurer, of the City of Muskego, to me known to be the persons executed the foregoing instrument, and to me known to be such Mayor and City Clerk-Treasurer of said municipal corporation, and acknowledged that they executed the foregoing instrument as such officers as the deed of said municipal corporation by its authority and pursuant to the authorization by the Common Council from their meeting on the day of ,2002. Notarv Public-State of Wisconsin My Commission Expires Page 11 Martin Estales Subdividers Agreement FINAL 2/26/2002 CERTIFICATION This is to certify that the foregoing is a true and correct copy of the Subdivider's Agreement for Martin Estates Subdivision, Muskego. Wisconsin, as entered into on the day of 2002 by and between Martin Estates LLC and the City Of Muskego. pursuant to the authorization by the Common Council from their meeting on the day of ,2002. BY THE COMMON COUNCIL Jean K. Marenda, CMC City Clerk-Treasurer SUBSCRIBED AND SWORN TO BEFORE ME This day , 2002. My commission expires This instrument drafted by Brian Turk, Director of Planning City of Muskego PO Box 749 Muskego. WI 53150 MARTIN ESTATES RETENTION POND MAINTENANCE AGREEMENT This Agreement, made and entered into this day of Estates LLC (hereinafter referred to as "Subdivider"), the Martin Estates Homeowners , by Martin Association, Inc. (hereinafter referred to as "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 is the owner of certain lands commonly known as the Martin Estates Final Plat, described as: Part of the SE X and NE X of the SW X of Section 7, T5N R20E, City of Muskego, Waukesha County, Wisconsin, commencing at the NE corner of the SW X of said Section 7 being the point of beginning; thence S 86' 55'15" W, 825.00 feet along the centerline of Field Drive; thence S 00' 56'41" E, 2654.45 feet: thence N 87' 1913 E, 825.00 feet to a point being the SE corner of the SW X of Section 7; thence N 00'56'56" W, 2,660.20 feet to the point of beginning. Said parcel contains 50.33 gross acres, more or less, and hereinafter referred to as the "Property": and WHEREAS, The City has approved the Final Plat of Martin Estates and the construction of storm water retention ponds within an outlot on the Property; and WHEREAS, The Subdivider has received various City permits and Wisconsin Department of Natural Resources permits hereinafter referred to as DNR permits to construct improvements within the Final Plat of Martin Estates; and WHEREAS, The City and the DNR has established certain requirements for retention ponds and storm water management to be constructed within the Final Plat of Martin Estates, to minimize flooding and sediment migration, and WHEREAS, The Subdivider has established an incorporated homeowners association known as Martin Estates Homeowners Association, Inc. (hereinafter referred to as the "Association"), which shall become responsible for maintenance of the outlot upon recording of the Final Plat and Deed Restrictions, and WHEREAS, 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 with this agreement and the Stormwater Management Plan on file in the offices of the City of water retention pond areas are maintained in a manner consistent with DNR requirements and 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 Stormwater Management Plan dated - shall be responsible for maintenance of the storm water management measures within the Subdivision. Martin Estates Retention Pond Maintenance Agreement Page 2 0 2. 3. 4. 5. 6. a 7 a. 9. The Association shall maintain the storm water management measures in accordance with the approved storm water management plan approved November 27, 2001 and on file in the offices of the City of Muskego Building Department as required by the City of Muskego Stormwater Management Ordinance. 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, which include but are not limited to swale and invert maintenance, and retention pond maintenance. 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. Upon notification of 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. 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. If unpaid, such charges shall be entered on the tax roll as a special charge or special assessment against all residential lots in Martin Estates and collected with any other taxes levied thereon for the year in which the work is completed. The Subdivider shall deposit in a segregated account with the City five thousand dollars ($5,000.00) to cover the estimated costs associated with swale and invert maintenance, and 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. to cover the costs associated with the pond draw downs in the following year Any annual costs in excess of the one thousand ($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 on the tax bills as a special assessment or special charge for all of the residential lots in Martin Estates. This document 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. Martin Estates Retention Pond Maintenance 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. Martin Estates LLC By: Ed Carow. Managing Member STATE OF WISCONSIN ) SS WAUKESHA COUNTY ) PERSONALLY came before me this - day of Ed Carow. Managing Member of Martin Estates LLC. to me known to be the person who executed the foregoing instrument and acknowledged the same. Notary Public-State of Wisconsin My Commission Expires MARTIN ESTATES HOMEOWNERS ASSOCIATION, INC. STATE OF WISCONSIN ) SS WAUKESHA COUNTY ) PERSONALLY came before me this day of , the above named to me known to be the person who executed the foregoing instrument and acknowledged the same as representatives of the Martin Estates Homeowners Association, Inc. Notary Public, Waukesha County, Wisconsin My commission expires STATE OF WISC0NSIN)SS WAUKESHA COUNTY } Martin Estates Retention Pond Maintenance Agreement Pane 4 a CITY OF MUSKEG0 By: By: David L. DeAngelis. Mayor Jean K. Marenda. City Clerk-Treasurer STATE OF WISCONSIN}SS WAUKESHA COUNTY } Personally came before me this - day of the above named David L. DeAngelis, Mayor and Jean K. 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 authority and pursuant to the authorization by the Common Council from their meeting on the day of Notary Public, Waukesha County, Wisconsin My commission expires Marh Estates Retention Pond Mainlenance Agreement Page 5 CERTIFICATION a This is to certify that the foregoing is a true and correct copy of the Retention Pond of Maintenance Agreement for Martin Estates, Muskego, Wisconsin, as entered into on this -day by and between Marlin Estates LLC, the Martin Estates Maintenance Association, Inc. and the City of Muskego, pursuant to the authorization by the Common Council from their meeting on the day of BY THE COMMON COUNCIL Jean K. Marenda City Clerk-Treasurer SUBSCRIBED AND SWORN TO BEFORE ME this day of ,2001 Notary Public, Waukesha County, Wisconsin e My commission expires This document drafted by Brian D. Turk, Director of Planning City of Muskego PO Box 749 Muskego, WI 53150 MARTIN ESTATES STORMWATER MANAGEMENT PLAN The City of Muskego Stormwater 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 Martin 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 Chapter 34 of the Municipal Code. The intent of this Stormwater Management Plan is to set forth specific storm water management measures to guide the Subdivider, the City of Muskego and the Martin Estates Homeowners Association, Inc. regarding the management of storm water in Martin 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 Resources, the City of Muskego or any other party having jurisdiction. SECTION 1 - DUTIES AND RESPONSIBILITIES OF THE SUBDIVIDER. The Subdivider shall at his expense: 1, Create the above referenced grading plans hydraulic calculations and storm sewer 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 storm water retention ponds to be contained in Outlot ?in the Final Plat of Martin Estates. The Subdivider shall as - built the finish grade of the ponds and provide the as-built plans to the City and Association. The Subdivider shall also provide a bench mark at each pond 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 restriction, the improvements to the Association, who shall be responsible for carrying out the storm water measures on an ongoing basis expressed in this plan. It is understood that the ownership and maintenance of the storm water management improvements including storm sewers constructed by Subdivider which are outside of City owned right of way are the responsibility of the Subdivider and Association. Martin Estates Slormwaler Management Plan Page 2 0 SECTION 2 - DUTIES AND RESPONSIBILITIES OF THE CITY OF MUSKEGO. The City of Muskego and the Department of Natural Resources (DNR) have expended great effort and expense to prevent flooding and sedimentation, and the City and the DNR have established certain requirements for retention ponds and stormwater management within the Final Plat of Martin Estates, to minimize flooding and sedimentation. 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, 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 respective 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 billed to the Association, and if unpaid, shall be entered on the tax roll as a special assessment or special charge against all residential lots in Martin Estates, 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 duties and responsibilities: 1 City of Muskego shall administer the draw down and inspect for sediment build- up. 2. Draw down of all retention ponds shall occur annually, and shall generally be within the first two weeks of November 3. 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 pipe it must be removed prior to draw down. 4. 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 Association according to Section 3. SECTION 3 - DUTIES AND RESPONSIBILITIES OF THE MARTIN ESTATES HOMEOWNERS ASSOCIATION. An incorporated association of the owners of all residential parcels in Martin Estates has been created for the purposes of managing and controlling common areas including the out lot which contains the storm water retention pond. The ownership and maintenance including all payment for associated costs for the storm water retention ponds 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, road side drainage ditches, and emergency overflows including rip rap and sediment removal. Marlin Estates Stormwater Management Plan 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 pumping of sediment laden water shall be filtered through a temporary sediment basin appropriately sized prior to being discharged. 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 on the tax roll as a special assessment or special charge against all parcels within Marlin Estates, collected with any other taxes levied thereon for the year in which the work is completed. Approved by the Public Works Committee on November 27,2001. Drafted by Brian D. Turk, Director of Planning MARTIN ESTATES OPEN SPACE MANAGEMENT PLAN TABLE OF CONTENTS SECTION I -VEGETATION COVER TYPES OF MARTIN ESTATES Introduction ...... ............................................ Mixed Hardwood Forest 1 Wetlands .. 1 ... ..... 2 ........... .................. ...... ............... ... ......... ...... SECTION I1 - RIXOMMENDATIONS AND REQUIREMENTS Mixed Hardwood Forest . ...... ... ...... .... Wetlands 3 ......... 5 Storm Water Ponds and Drainage Swales .............. ......... ....... 6 ......... ...... ... ...... Prairie (Wildflower) Plantings ...... ............ ......... ... 7 SECTION 111 - IIVlTlAL DUTIES AND RESPONSlBILlTlES OF THE DEVELOPER . I1 SECTION 1V . DUTIES AND RESPONSIBILITIES OF THE HOMEOWNERS ........... 11 ..... 0 SECTION V -DUTIES AND RESPONSIBILITIES OF THE CITY OF MUSKEG0 12 SECTION I: VEGETATION COVER TYPES OF MARTIN ESTATES Introduction This Open Space Management Plan includes a proposed program to preserve, manage and use open spaces and natural areas within the Martin Estates subdivision. The plan provides general methods and procedures for managing, improving, and sustaining the quality of the natural habitats of Martin Estates. It also provides recommendations on landscaping and managing open space areas that were manipulated or disturbed in the development process. This document serves as a Work Plan, and as such, provides general recommendations about expected habitat management issues. It contains information about managing lawns, wildflower and grassland prairie areas, woodland management, and pond maintenance and encourages the use of vegetation types historically found in the region. Techniques for managing invasive, weedy plant species, such as Buckthorn, Honeysuckle, Purple Loosestrife and Garlic Mustard, are also provided. The City of Muskego Conservation Coordinator is available to provide technical assistance and literature references. References to other agencies, native plant nurseries and private consultants can also be provided to help in this Plan’s execution. Mixed Hardwood Forest - (Historically Oak Savanna) Description The forested area of Martin Estates was historically an oak savanna. Oak savanna was the predominant land cover type of southern Wisconsin before European settlement. This transition between the prairies of the Central Plains and the forests of eastern North America consisted of forests of scattered trees where numerous prairie grasses and wildflowers thrived within the openings. Periodic wild fires minimized the extent of most woody plants. Certain trees, primarily oaks with their thick bark withstood these fires. Bur Oak (Quercus macrocarpa) is the predominant tree of oak savannas, however White Oak (Quercus alba), Red Oak (Quercus rubra), Shagbark Hickory (Carya ovafa), and Black Walnut (Juglans nigra), also grew in this ecotype. However, because of human manipulation of the land, fire suppression and effects of competing invasive plants, few healthy oak savannas exist. Species composition has been altered and species diversity has been greatly reduced. The area has now evolved into a mixed hardwood forest with other woodland trees such as Green ash (Fraxinus pennsylvanica), White Ash (Fraxinus americana), Bitternut Hickory (Carya cordiformis), and Black Cheny (Prunus serofina). Under-story tree species of lronwood (Osfrya virginiana) and Washington Hawthorn (Craraegusphaenopyrum) are also found. Shade tolerant woodland forbs now grow in place of the prairie species. Shade has also suppressed the regeneration of oak trees. Younger-aged oaks can only be found along forest edges and in forest openings. Over time, as oaks within the forest interior die, more shade tolerant trees such as American Basswood (Tilia americana) and Sugar Maple (Acersaccharum) will replace them. Martin Estates Open Space Management Plan Dead trees within a residential yard are usually hazards to human life and property and need to be removed. However, within the forest, they provide habitat for a variety of wildlife. Dead trees typically have cavities that serve as nesting sites for mammals and cavity-nesting birds. These include deer mice, squirrels, chipmunks, owls, kestrels, woodpeckers, chickadees, nuthatches, and the great-crested flycatcher. Furthermore, the decay of fallen trees cycles nutrients back into the soil where they become available for the growth of more plants. Invasive Species Two invasive shrub species are of a concern in the forest: Tatarian Honeysuckle (Lonicera taiarica) and European Buckthorn (Rhamnus caihartica). Both of these plants were originally brought to North America for use as landscape plants but have now spread into forests over much of the continent. These species leaf out sooner than most native woodland trees. Native woodland flowers such as Jack-in-the-pulpit (Aerisaema Irijolliurn), Trilliums (Trillium grand@rum), Bloodroot (Sunquinana canadensis), and Mayapple (Podophyllum pelfaiurn) flourish in the sunlight that comes through the forest canopy before the trees leaf-out. The early-leafing buckthorn and honeysuckle inhibit the growth of these native plants on the forest floor. Not only are humans robbed of the chance to witness a spectacular display of spring flora, the wildlife that relies on the native species for food and habitat is greatly impacted. This shading effect also inhibit the regeneration of forest trees and, over time, the area can transform into a dense thicket of these invasive shrubs. Garlic mustard (Alliaria pefiolata), another invasive non-native plant, is a potential threat to the health of the woods in Martin Estates. This prolific biennial herb can quickly dominate the ground flora of a forest at the expense of the diverse assemblage of native woodland flowers. Fortunately, Garlic mustard does not currently appear to be a problem within the forest. Wetlands Description Wetlands have tremendous ecological significance. They help to improve water quality, help retain storm water, provide critical habitat for a variety of other wildlife, including frogs, salamanders, and turtles. Many people mistakenly think of wetlands as mosquito breeding grounds. However, a healthy wetland habitat attracts beneficial insects such as dragonflies, and birds such as swallows, swifts, and flycatchers - all of which prey on mosquitoes. The wetlands at Martin Estates contain both wet woods and an open area that was likely a former sedge meadow. The wet woods contain trees tolerant of periodic inundation such as American Elm (Ulmus americana), Green Ash, Box Elder (Acer negundo), and Silver Maple (Acer saccharinum). The open area contains some native sedges and forbs but is predominantly now covered with invasive Reed Canary Grass (Phalaris arundinacea). 2 Martin Estates Open Space Mananement Plan Invasive Species Reed Canary Grass is an aggressive sod-forming grass that is over-taking many wetlands and adjacent uplands in North America. Although a native strain exists, a more vigorous Eurasian strain was introduced for use as forage and erosion control. This Eurasian strain out-competes native flora and creates a monotypic (single species) stand that is of little use to wildlife. Within Martin Estates invader now covers most of the open wetland area and extends into openings within the wet woods Although not observed at Martin Estates, Purple Loosestrife is another wetland invasive plant to watch out for. This plant has showy purple flowers but its impact to wetlands isn’t so pretty. Like other invaders, it can dominate an area to the extent that other species are eliminated. SECTION 11: RECOMMENDATIONS AND REQUIREMENTS Mixed Hardwood Forest Control of Invasive Species Although they are both present in Martin Estates, neither Tartarian Honeysuckle nor European Buckthorn has developed a strong foothold in the forest and control is achievable. Buckthorn appears to be mostly isolated to fencerow areas, while honeysuckle is encroaching on the north side of the woodlot. A prescribed burn, conducted in early spring before woodland flowers emerge, would kill many of the honeysuckle and buckthorn seedlings. Cutting the shrubs at ground level and treating the stump with a glyphosate herbicide can control larger plants of both species. This is best done in the fall of the year when sap flows toward the roots and these plants are easily spotted due to their tendency to hold their leaves longer. Cut stems should be removed and disposed of, as they are capable of re-rooting. Control of a Garlic Mustard infestation is labor-intensive. Plants can be hand pulled in spring before they set seed. Pulled plants must be bagged and land filled. The hand-pulling regimen must continue for several years until the existing seed bank of Garlic Mustard is exhausted. Timely spraying of herbicides and prescribed burns are also effective control techniques provided they are conducted in spring before most native woodland plants green-up. Reseeding or replanting with native woodland flora may be required. There are many references available that detail specific invasive species control techniques. The Wisconsin Department of Natural Resources web site contains many excellent online and offline references (http:l/www.dnr.state.wi.us/orR/land/er/invasive/index.htm). Preservation Residential development within wooded areas should be done in a manner that will minimize the impact on the forest community. Careful placement of roads, driveways, utilities and building pads is paramount. Cut and fill operations should be confined to these development areas. Excavated materials should not be spread or placed upon existing natural areas. Most woodland 0 3 I Martin Estates %en Space Manavement Plan trees and ground flora are intolerant of even minor grade changes. Fill material brought into a construction site can potentially introduce unwanted weed seeds. Damage from heavy equipment and even light vehicles can gravely damage mature trees. Soil compaction is a greater threat than the more obvious trunk scamng. The effects of construction damage often take 5 to 7 years before they finally kill a tree and the building contractors have long since completed their work. Homeowners don’t relate the tree’s death to construction activities several years earlier. To successfully preserve trees near construction sites, snow fencing and signage should be erected around the tree’s critical root zone. This zone usually extends beyond the drip line of the tree canopy. General contractors must make all subcontractors aware of tree preservation procedures. Requirements Persons wishing to develop lots that contain wooded areas (lot #’s 6 through IO) shall set up a pre-construction meeting with the Muskego Conservation Coordinator and their contractor prior to any clearing or soil disturbance. Strategies to best preserve trees and forest health will be planned. These include minimizing grading operations, protecting trees’ critical root zones, and design of compatible landscaping. The Homeowners Association shall employ an aggressive campaign to eradicate invasive honeysuckle and buckthorn shrubs from the hardwood forest and within any fencerow areas left intact. These invasive shrubs currently impact less than half of the five acre forested area. All honeysuckle and buckthorn within the forest outlot (Outlot 2) and lot numbers 6 - IO inclusive should be largely controlled by the third year of the subdivision’s existence. That is, less than IO% of the cut stems should show re-sprouting. The Association should remain vigilant for the presence of any garlic mustard and begin control if found. It can be said of any invasive species that early detection and control will make it considerably easier to minimize or eliminate. The Muskego Conservation Coordinator is available to meet with Association members to give instructions on invasive plant identification and control options. ~~ - Mustard I Api I Apiil Control I Spring burn [ Hand pull in I Spring burn I I I April-May I i Species Management strategy Buckthorn 2004 2003 2002 Inspect in April InspectionlMonitoring Inspect in Inspect in and Honeysuckle Control April April Fall-winter Spring burn Timetable for Invasive Species Management Spring burn Stump treat with herbicide Fall- Winter herbicide cut stems Garlic Inspect in Inspect in lnsoect in A~ril Insoection/Monitorina ~ ~ - Herbicide It is recommended that dead trees and snags within the forest be retained whenever possible where they do not pose safety threats to people or buildings. As mentioned in the section above, they provide a variety of wildlife habitat. 4 Martin Estates Open Space Management Plan Wetlands Reed canary grass control involves mowing, burning, andor herbicides. Well-established stands are difficult to control due to the persistent seed bank in the soil. In some cases, removal of the top layer of existing soil will remove the unwanted seed bank. However, permits will be required for this control option. Re-seeding with a sedge meadow mix may be necessary if native seed bank is lost. Purple loosestrife can be controlled with herbicides when infestations are small. Larger stands of purple loosestrife are best controlled with the introduction of Gulleruceh spp. beetles. These tiny insects, that keep this plant in check in Europe and Asia, have been imported to control this plant in the United States. Because they feed exclusively on loosestrife plants, Gallerucellu have not posed a threat to any native plants or cultivated crops. Any herbicide applied on or near surface water requires a (no fee) permit from the Wisconsin DNR. Glyphosates specifically formulated for use near water (e.g. Rodeo) must be used. Check with the regional DNR Aquatic Plant Coordinator before starting an herbicide treatment. Species I Management strategy 1 2W2 Timetable for Invasive Species Man I 2003 0 Reed InspeclionlMonitoring Summer Consider Inspect in Inspect extent of coverage in Canary Grass Spring Burn Control Summer I I Purple I InsoectionIMonitorina I Check presence bv lookina for I JuneJulv I herbicides Looiestrife - I flowering in June-July - I Control Cut, herbicide treat and bag flowers if plant is found. June herbicide, cut a II I June gement 2004 I Ail Odd I All Even Years Inspect in I Years I Inspectin I Inspectin Summer needed I I Consider cut a Gallerucella spp. herbicide Gallerucella spp. Consider beetles if anv found beetles if extensive infestation in June extensive infestation Preservalion Care should be taken to avoid and minimize direct, or indirect, impacts to wetlands. Management and maintenance activities within wetlands are highly regulated at the federal, state, and local levels. Regulated activities include clearing, dredging, and tilling in or around wetlands. Effective sediment and erosion control practices will be required during any activities that could cause sediment-laden runoff to flow into the wetlands. Restoration projects within wetlands must be conducted in accordance with Wisconsin Department of Natural Resources (WDNR) guidance, and permits may be required. A good source of information may be found in the Wetland Restoration Handbook for Wisconsin Landowners (Alice Thompson and Charles Luthin, WDNR, 2000). 5 Martin Estates Open Suace Management Plan Enhancement There are some easy techniques to enhance and protect wetlands that do not involve fill, excavation, or soil disturbance thus generally do not require permits: Selective strategic plantings would attract wildlife and help to improve water quality. Edges of the wetland area could be excellent growing locations for tree species such as the Swamp White Oak, Bur Oak, Shagbark Hickory, and Black Walnut. Reducing the lawn effect around the wetlands, by planting wet meadow forbs (flowering plants), grasses, and bushes such as silky dogwood, would encourage some wildlife to nest and forage at these wetlands. A trail system could be installed as a focal point for enjoying the wetlands. The trail could largely be a mowed path, supplemented by a boardwalk system as needed. Tree swallow nest boxes and wood duck boxes could be added, situated within sight of the trail. Storm Water Ponds and Drainage Swales 0 Development of wet storm water detention basins is required within land developments by Chapter 34 of the Muskego Municipal Code. These “storm water ponds” serve to capture sediments and nutrients before water is released to existing surface waters, thereby maintaining water quality of area lakes and streams. They also provide flood control by slowing the release of water to existing surface waters. Storm water ponds and associated drainage swales can be managed to optimize their efficiency and aesthetics. Pond Design and Enhancement Open lawn landscapes along ponds can attract nuisance flocks of Canada geese, so the planting and maintenance of turf grasses in these areas is discouraged. Geese prefer to graze on lawn grasses within easy reach of water in the typical “golf course pond” design. While a few nesting pairs may be welcome, large flocks of geese leave messy droppings causing human health hazards and diminished water quality of ponds and their associated wetlands. Another concern with lawns around storm water ponds is the potential use of fertilizers. Fertilizers entering the water will encourage nuisance plants and algae blooms, thus reducing the pond’s function of reducing nutrient pollutants. Establishment of natural vegetation around ponds and swales is encouraged. Wet meadow vegetation and prairie plants that grow taller around these storm water facilities will minimize the goose problem and ensure better water quality. A wet meadowkedge mix should be planted in the shallow perimeter of storm water ponds and drainage swales. Further up in grade, in soils less frequently subject to inundation, a mesic 0 (medium-moisture) prairie mix is recommended (Establishment of prairie vegetation is discussed 6 Martin Estates &en Space Management Plan in the following section). Collectively, these plants will serve as a filter to reduce the influx of sediments, nutrients, and other pollutants, and slow the erosive force of water during storm events. Aesthetics is an added benefit, as the ponds and swales will appear natural and provide a greater diversity of plant and animal life to observe. Once established, the vegetation will require little maintenance. Specific requirements for seeding around storm water ponds and swales shall be detailed in the approved landscape plan on file at the City of Muskego Planning Department (Drafted by: Jahnke & Jahnke Associates lnc., Approval date: ). Many aquatic plants and animals will likely colonize the pond naturally over time. However, many can be intentionally introduced. It is recommended that only indigenous, non-invasive, plants be used. Most storm water ponds will not support a fishery because their shallow depths makes them vulnerable to winter fish kills from oxygen depletion. If the pond is deep enough to support a fishery, it is strongly recommended that a fisheries biologist be consulted prior to any fish stocking efforts. A healthy fish assemblage, without species such as carp, is critical to the maintenance of water quality in the pond. PRAIRIE (WILDFLOWER) PLANTINGS Eslablishmenl Certain outlot areas within Martin Estates, including storm water management facilities discussed above, are ideal sites for the establishment of prairie plantings. Initial preparation of the planting site requires a bit of work, but once established, prairies are rather low maintenance. These sites will likely have a surface of recently graded topsoil. Unfortunately, the soil likely contains seeds of weeds and “cool season” grasses. Prairie plants are ”warm season” plants that don’t generally begin growing until soil temperatures warm to greater than 50” F. If acceptable erosion controls are in place, the existing seed bank of cool season grasses and weeds in the soil should be allowed to sprout in the spring. Erosion prone areas should be seeded with a temporary cover of annual rye grass. The site should be sprayed with a glyphosate herbicide in spring after weedy plants begin to grow but before they flower and go to seed. Another herbicide treatment should be conducted in June, just prior to planting the prairie. Existing “old field” sites that include many weedy species, may need to be treated for an entire growing season prior to prairie planting. When adequate weed control is accomplished, the site may then be planted. Seeding in late spring or early summer typically produces good results. Planting later than mid-July is discouraged because there may not be enough time left in the season for prairie plants to adequately establish before winter. However, prairies may be seeded in late fall afler soil temperatures cool - typically in November. These seeds remain dormant over the winter and sprout the following spring. This fall “dormant seeding” is a good option for weedy sites that require additional herbicide applications throughout the summer. Prairie seed mixes are available from several nurseries in the area. Specific wildflower and prairie grass mixes are formulated to match soil textures and moisture content. A mesic, or medium-moisture prairie mix is suggested for most of the prairie planting area. Mixes Martin Estates Open Space Management Plan containing sedges, bulrushes, and other plants tolerant of wet soils should be used in areas 0 subject to water inundation. Seed mix specifications can be found below. The standard seeding density is IO pounds of mix per acre. A nurse crop of such as annual rye grass (do not use perennial rye) should be planted with prairie seeds to provide temporary competition for weeds, as well as to stabilize the area against erosion while prairie plants become established. Annual rye should be planted with prairie seed at a rate of 5 Ibs./acre for spring planting and 15 Ibs./acre for fall dormant seeding. Planting sites should be shallowly tilled prior to seeding or planted with a “no till” technique. No till planting is favored because in doesn’t bring up weed seeds that exist deeper within the soil, some of which can remain viable for decades. No till planting will minimize the re- establishment of these weeds. Smaller sites can be broadcast seeded by hand over shallowly tilled soil. Mixing the seed with an inert carrier such as vermiculite or sawdust will help to more evenly spread the prairie seed. After broadcasting, the soil it should be lightly raked so that seeds are buried no deeper than % to % inch. The site should then be rolled so that there is firm seed-to-soil contact. A light covering of weed-free straw mulch will help retain soil moisture and increase germination. Inevitably, some weeds will begin growing on even well prepared sites. Weeds tend to grow faster than prairie plants, so mowing at successively greater heights through the first year will reduce the weed’s competitive advantage. Mowing will also keep most weeds from producing seed. A mowing is also recommended in the spring of the second year, but after that, little maintenance is required. Periodic burning in mid-spring will rejuvenate prairie plantings after establishment. This should be done on a two to five year cycle. Burning removes the duff (dead plant material) and sets back cool season grasses and weeds. Although not as effective as burning, mowing is an acceptable substitute where burning may be a hazard. If this method is used, cut plant material should be raked from the site to allow sun penetration to the soil surface. In the initial years, prairie plants invest more into root growth and aren’t very showy above ground. Many wildflowers do not blossom until their third year of growth and it may take five years before these plants really begin to fill in the site. Patience is rewarded after establishment by an attractive diversity of plants that both humans and wildlife will enjoy. A greater diversity of songbirds and many rare and colorful butterflies will utilize the colorful array of wildflowers found in the prairie. 8 Martin Estates ODen Space Mananement Plan Timetable for P I Early i Site Preparation Herbicide weeds a season rasses lirie and S Late June 2002 2nd Herbicide applicalion No-till seed or seed into lightly tilled soil Mow planting to Mow planting Spring height of 4-6 in spring inches Prescribed Bum Specifications for Mesic Prairie Seed Mix Wildflowers 15 or more of the following: Bergamot Black Eyed Susan Blue False Indigo Butterflyweed Canada Milk Vetch Canada Tick Trefoil Compassplant Culver's Root Cupplant Great Solomon's Seal Heartleaf Golden Alexanders Lanceleaf Coreopsis Lavender Hyssop Meadow Blazingstar Meadow Rose New England Aster New Jersey Tea Nodding Pink Onion Ox Eye Sunflower Grasses 2 or more of the following: Big Bluestem Canada Wild Rye Sideoats Grama Switchgrass Pale Purple Coneflower Partridge Pea Prairie Blazingstar Prairie Dock Purple Coneflower Purple Prairie Clover Rattlesnake Master Rosinweed Roundhead Bushclover Sky Blue Aster Smooth Aster Smooth Penstemon Stiff Goldenrod Sweet Black Eyed Susan White False Indigo Wild Quinine Wild Senna Yellow Coneflower lndiangrass Little Bluestem Prairie Dropseed lent Evely 3* thereafter year Spring Prescribed Burn 9 Martin Estates &en Space Management Plan Wet Meadow/Sedge Seed Mix Speclfications for Storm waler Pond and Swale Area * Wildflowers 15 or more of the following: Angelica Bergamot Black Eyed Susan Blue Flag Iris Blue Vervian Boneset Brown Eyed Susan Culver's Root Dense Blazingstar Golden Alexanders Great Blue Lobelia Green Headed Coneflower Ironweed Grasses & Sedges 4 or more of the following: Big Bluestem Canada Wild Rye * Fowl Manna Grass Dark Green Buirush Joe Pye Weed New England Aster Ohio Goldenrod Ox Eye Sunflower Pale Indian Plantain Prairie Blazingstar Prairie Dock Red Milkweed Riddell's Goldenrod Sawtooth Sunflower Sweet Black Eyed Susan Tall Coreopsis Wild Iris Fox Sedge Porcupine Sedge Virginia Wild Rye *Note: Mesic Prairie Mix above could be used with addition of any 2 of the following: Dark Green Bulrush Fowl Manna Grass Fox Sedge Porcupine Sedge IO Martin Estates Open Space Management Plan SECTION 111: lNlTlAL DUTIES AND RESPONSIBILITIES OF THE DEVELOPER The developer shall at his expense: I Conduct a prescribed early spring bum of the wetlands, wet woods, and hardwood forest for the initial control of Buckthorn, Honeysuckle, and any Garlic Mustard present. All prescribed bums shall be conducted pursuant to Municipal Code Section 9.14 and only upon 72 hours notice to the Muskego Police Department and Fire Department. Muskego Municipal Code 9,14(3)(a)(4) states: “Sufficient fire fighting implements and personnel shall be available at the scene while burning is in progress to control the fire.” 2. Conduct a cut stem herbicide treatment of Buckthorn and Honeysuckle as described in Section I1 within woods located on lots 6 through IO prior to sale. 3. Plant mesic prairie and/or wet meadowkedge vegetation along storm water swales and ponds as specified in the approved landscape plan on file at the City of Muskego Planning Department (Drafted by: Jahnke & Jahnke Associates Inc., Approval date: February 5,2002). 4. Maintain erosion control measures specified in the approved erosion control plan (Drafted by: Jahnke & Jahnke Associates Inc., Approval date: November 27, 2001), on file at City of Muskego BuildingEngineering Department). Erosion control shall be in compliance with the Wisconsin Construction Site Handbook of best management practices and remain in place until adequate vegetative cover is established. a 5. Maintain storm water ponds as directed by the approved Storm Water Management Plan (Drafted by: Jahnke & Jahnke Associates Inc., Approval date: November 27, 2001), on file at City of Muskego BuildingEngineering Department). 6. Inform buyers of parcel numbers 6 through IO inclusive that it is their responsibility to schedule and hold a pre-construction meeting with the City of Muskego Conservation Coordinator prior to any land disturbance or clearing of vegetation. The purpose of this meeting will be to discuss strategies to minimize the negative impacts to woodlands which lie upon and/or adjacent to their lots. Martin Estates Ouen Suace Management Plan Cover type Hardwood Forest Wetlands1 Wet woods PrairieISed Meadow Planlings ge April 2002 Prescribed burn. Herbicide 8 Buckthorn Honeysuckle lots 610 Prescribed burn May weeds Herbicide Duties and Responsibilities of the Developer June July August Sep- October November December Following lmber April (2003) I I I I I Corndele lnsoect SECTION 1V: DUTIES AND RESPONSlBlLlTlES OF THE HOMEOWNERS 1. Homeowners who purchase parcel numbers 6 through 10 inclusive shall individually hold a pre-construction meeting with the City of Muskego Conservation Coordinator prior to any land disturbance or clearing of vegetation. The purpose of this meeting will be to discuss strategies to minimize the negative impacts to woodlands which lie upon and/or adjacent to their lots. 2. The Homeowners Association shall initiate a volunteer program to eradicate invasive plants from the forest. The Homeowners Association shall hold at least one invasive plant control outing yearly in which 40 “man-hours” are spent removing and treating invasive plants. The Homeowners Association shall also be allowed to hire a contractor to fulfill this responsibility. The Homeowners Association shall advise the City of Muskego Conservation Coordinator 48 hours prior to conducting an invasive plant management activity. 3. The Homeowners Association shall conduct prescribed bums on prairie planting every 3 to 5 years. All prescribed bums shall be conducted pursuant to Municipal Code Section 9.14 and only upon 72 hours notice to the Muskego Police Department and Fire Department. Muskego Municipal Code 9.14(3)(a)(4) states: “Sufficient fire fighting implements and personnel shall be available at the scene while burning is in progress to control the fire.” Mowing may be substituted where burning may be hazardous to life or property. Cut plant material shall be raked from the site. Martin Estates hen Space Manarement Plan Duties and Responsibilities of the Homeowners Spring 2005 and Yearly, B Fall-Wtnter Summer Spring Fall-Winter Summer Site 2002 Every 3" needed 2003 2003 2003 2002 2002 Year , -~ 6. 10 activities. prior to any development and developer pre-construction meeting with Conservation Coordinator Schedule a bereafter Hardwood any Garlic Honeysuckle Volunteer Forest PulllHerbicide Herbicide Initiate Herbicide Herbicide Honeysuckle Fall-Winter Program tor invasive Wetlands/ species Purple management. Wet woods Inspect for Consider Loosestrile Loosestrife PrairieISedge nature trail Mow (mid- Meadow and nest April) if Burn Late Plantings boxes. homeowners April &Buckthorn Honeysuckle &Buckthorn Mustard &Buckthorn lnspectrrreat Purple lnspectrrreat Purple Loosestrife Prescribed wntrol Association SECTION V: DUTIES AND RESPONSIBILITIES OF THE CITY OF MUSKEG0 The City shall: 1 Inspect lots 6 through 10 to ensure that control of buckthorn and honeysuckle has been achieved prior to their sale to individual property owners. Control shall be considered achieved if less than 10% of cut stems show resprouting. 2. Inform homeowners of wetland boundaries that lie within or adjacent to their properties. 3. Inspect wetland areas annually to ensure that no illegal filling, dredging, or other 4. Inspect the progress of mesic prairie and/or wet meadowkedge vegetation establishment 5. Assist Homeowners Association in educating members of invasive species control. modifications have occurred. near storm water management facilities. 13 0 Deed of Conservation Easement- Martin Estates Subdivision THIS DEED OF CONSERVATION EASEMENT is made this day of , 2002 by Martin Estates LLC, having an address of 1661 N. Water Street, Suite 203, corporation having an address of W182 S8200 Racine Avenue, P 0. Box 749, Milwaukee, WI 53202. ("Grantors") in favor of the City of Muskego. a municipal 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 1 and Outlot 2 of Martin Estates, being a subdivision of the SW % of Section 7, T5N R20E. City of Muskego, Waukesha County, Wisconsin (the Property); and WHEREAS the Property possesses significant environmental features including woodlands, wetlands and steep slopes of great importance to Grantors, 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 Veqetation and Ecoloqical Conditions of The City of Muskeqo, dated January 2001, and incorporated by this reference ("Baseline Documentation"), Said report consists of studies, maps, photographs, and other documentation that the parties agree provide, collectively, and 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 0 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 WHEREAS, Grantors further intend, as owners of the Properly, 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 and restrictions and municipal zoning ordinances, and real estate taxes in year of closing. SECTION 1 Purpose, It is the purpose of this Easement to assure that the Property will be retained forever in its woodland and 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 passive open space uses, as are not inconsistent with the purpose of this Easement. 0 Martin Estates Conservation 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. 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. SECTION 4. Reserved Rights. Grantors reserve to themselves, and to their personal representatives, heirs, successors, and assigns, all rights accruing from their ownership of the Property, including the right to engage in, or permit or invite others to engage in, with the purpose of this Easement. all uses of the Property that are not expressly prohibited herein and are not inconsistent 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 activity in sufficient detail to permit Grantee to make an informed judgment as to its nature, scope design, location, timetable, and any other material aspect of the proposed consistency with the purpose of this Easement. 5.2 Grantees Approval. As set forth in paragraph 5.1 , Grantee shall grant or withhold therefore. Grantee's approval may be withheld only upon a reasonable determination by its approval in writing within sixty (60) days of receipt of Grantor's written request Grantee that the action as propose would be inconsistent with the purpose of this Easement. 0 Marlin Estates Conservation Easement Page 3 0 SECTION 6. Grantee's Remedies 6.1 Notice of Violation; Corrective Action. If Grantee determines 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 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, in its sole discretion, determines 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 under 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. 6.6 Costs of Enforcement. All reasonable costs incurred by Grantee in enforcing the terms of this Easement against Grantors, including, without limitation, 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 judicial 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 0 a or construed lo be a waiver by Grantee of such term or of any subsequent breach of the Martin Estates Conservation Easement 0 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: 0 (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 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; Martin Estates Conservation Easement 0 (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. the Property of any substance now or hereafter defined, listed, or otherwise classified 8.4 Remediation. If at any time, there occurs, or has occurred, a release in, on, or about 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 solely 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, 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 no 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, unless caused solely by any of the Indemnified paragraphs 8.1 through 8.5. Parties; and (4) the obligations, covenants, representations, and warranties of 0 Martin Estates Conservation Easement a 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 jurisdiction. The amount of the proceeds to which grantee shall be entitled, afler the extinguished, whether in whole or in part, by judicial proceedings in a court of competent 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) xly 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 Properly 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 hat 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. SECTION 11 Subsequent Transfers. Grantors agree to incorporate the terms of his themselves of any interest in all or a portion of the Property, including, without limitation, Easement by reference in any deed or other legal instrument by which they divest 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. 0 Martin Eslales Conservation Easement Page 7 0 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 the Grantee's knowledge, Grantor's compliance with any obligation of Grantors Grantors, any document, including an estoppel certificate, which certifies. to the best of 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: Martin Estates, LLC 1661 N. Water Street, Suite 203 Milwaukee, WI 53202 To Grantee: City of Muskego P 0. 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 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 those as to which it is found to be invalid, as the case may be, shall not be affected Easement, or the application of such provision to persons or circumstance other that thereby. Martin Estates Conservation Easement Page 8 0 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 several. shall be binding upon, and inure to the benefit of, the parties hereto and their respective 15.7 Successors. The covenants, terms, conditions, and restrictions of this Easement 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. Martin Estates Conservation Easement Page 9 0 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. Martin Estates LLC By: Ed Carow, Managing Member STATE OF WISCONSIN ) SS WAUKESHA COUNTY ) PERSONALLY came before me this - Estates LLC, to me known to be the person who executed the foregoing instrument and day of 2002 Ed Carow, Managing Member of Martin acknowledged the same. Notary Public-State of Wisconsin My Commission Expires MARTIN ESTATES HOMEOWNERS ASSOCIATION, INC. STATE OF WISCONSIN ) SS WAUKESHA COUNTY ) PERSONALLY came before me this ~ known to be the person who executed the foregoing instrument and acknowledged the same as day of 2002, the above named me representatives of the Martin Estates Homeowners Association, Inc. 0 Notary Public, Waukesha County, Wisconsin My commission expires STATE OF WISC0NSIN)SS WAUKESHA COUNTY } This document drafted by: Brian D. Turk Director of Planning City of Muskego PO Box 749 Muskego. WI 53150 DECLARATION OF RESTRICTIONS This Declaration is made this day of ,2002, by Martin Estates LLC. (hereinafter called Developer). IINIEBLER,PYZYKKLAVER& WAGNER LLP P.O. BOX 444 Menornonee Falls, WI 53052-0444 RECITATIONS WHEREAS, Martin Estates LLC, as Developer, owns all those lands identified as Lot numbers I through 16, City of Muskego, Wisconsin, and WHEREAS, the Developer desires to subject the platted lots within the subdivision to the conditions, restrictions, covenants, reservations and easements hereinafter set forth, for the benefit of the subdivision as a whole and for the benefit of each lot owner. DECLARATION NOW, THEREFORE, the Developer hereby declares that the real estate described on the attached Exhibit A and all portions thereof(except for dedicated streets) shall be used, held, transferred, sold and conveyed subject to the conditions, reshictions, covenants, reservations and easements hereinafter set forth, which shall inure to the benefit of and shall pass with each lot as covenants running with the land and shall apply to and bind all successors in interest, users and owners. GENERAL PURPOSE The purpose of this Declaration is to ensure the best use and most appropriate development and improvement of each lot thereof; to protect owners of lots against such use of surrounding lots as will detract from the residential value of their property; to preserve, as far as practicable, the natural beauty of said property; to guard against the erection thereon of poorly designed or poorly proportioned structures; to obtain harmonious use of material and color scheme; to insure the highest and best residential development of said property; to encourage and secure the erection of attractive homes thereon with appropriate locations thereof on lots to prevent haphazard and inharmonious improvement ofbuilding sites; to secure and maintain proper setbacks from street and adequate free spaces between structures and, in general, to provide adequately for a high type and quality of improvement on all property, and thereby to preserve and enhance the values of investments made by purchasers of building sites therein. SINGLE FAMILY USE: GENERAL RESTRICTIONS A. B. C. D. E. Each lot shall be used solely for residential purposes by one family except that business activities may be conducted in or from any home if confined solely to the transaction of business by telephone. With the exception of lots left vacant and maintained in a way consistent with Open Space Management Plan, the tern "residential purposes" shall include only those activities necessary for or normally associated with the use and enjoyment of a homesite as a place of residence and limited recreation. Only one home may be constructed on each lot and no garage, house trailer, recreational vehicle or other improvement (except for the home) shall be used for temporary or permanent living or sleeping for the family or guests without the prior approval of the Architectural Control Board, hereinafter referred to as Board. Each lot shall be maintained by the lot owner so as to be neat in appearance when viewed from any street or other lot. No lot shall be used in whole or in part for conducting any unlawful activity or for any unlawful purpose. No soil shall be removed from any lot in the subdivision without the prior consent of the Board. Any excess soil resulting from excavations shall be transported, at the buyer's expense, to such other places in the subdivision or on subdivider's property as may be designated by the Board. USE AND MAINTENANCE OF COMMON AREAS Martin Estates includes substantial common area. Each lot owner will own an undivided 1/16 interest in the common area. The Martin Estates Homeowner's Association, Inc. will be responsible for common area maintenance with each lot owner being assessed their share of the common area maintenance costs. The subdivision common areas surround orborder all ofthe lots in this subdivision. All open space identified in the Open Space Management Plan will be maintained by the Association in accordance with the Plan and the Martin Estates Pond Maintenance Agreement. Any signs, monuments or structures constructed by the Developer or the Association shall be properly maintained by the Association. MOTORIZED VEHICLES All motorcycles, snowmobiles, trail bikes, dune buggies, off street motorized vehicles, vehicles licensed as trucks and recreational or commercial vehicles of any kind shall be stored only in enclosed garages and outbuildings; shall be operated only on a driveway, parking area, or street; shall be operated only for purposes of ingress and egress; and, shall not be operated on any common area within the subdivision. ANIMALS AND PETS A maximum of sixteen (1 6) domesticated livestock, generally construed to be one per salable parcel, and a single accessory shucture for boarding purposes shall be allowed within Outlot 2. The stable shall conform to the following setbacks: 50-feet from all public right-of-ways; 50-feet from the eastern plat boundary; and 25-feet from all other parcel boundaries. No animals, livestock or poultry of any kind shall be raised, bred or kept on any individual salable lot except two dogs, two cats and other such household pets, provided that they are not kept, bred or maintained for a commercial purpose, permitted to run free or in any other unreasonable manner. GARBAGE, REFUSE AND NOISE No lot shall be used in whole or in part for the storage of rubbish of any character whatsoever, nor for the storage of any property or thing that will cause such lot to appear in an unclean or untidy condition; nor shall any substance, thing or material be kept upon any lot that will emit foul or obnoxious odor; or that will cause any noise that will or might disturb the peace, quiet, conformity or serenity of the occupants of surrounding property. CONSTRUCTION OF IMPROVEMENTS MINIMUM LIVING AREA AND OTHER REQUIREMENTS A. Each single-story home shall have a minimum living area (exclusive of basement, attic, garage, porches, and patios) of not less than 2000 square feet. B. Each two-story home shall have a minimum living area (exclusiveofbasement, attic, garage, porches, and patios) of not less than 2500 square feet, with a minimum of I200 square feet on the first floor. 3 3 4 a C. D. E. F. G. H. 1. J. Living area is determined by the outside dimensions (exclusive of basement, garages, porches, patios, breezeways, sunrooms and similar additions) ofthe exteriors walls ofabove grade finished living space. In no event shall floor space which is partially or completely below finished yard grade (such as basements, whether or not exposed, andor lower level of a bi-level) be counted for purposes ofdetermining minimum square footage of living space. The Board shall have the exclusive right to determine whether such requirements will be satisfied and any decision of the Board shall be final and conclusive. The Board shall have the right to require homes to be larger than the minimum size. Each home shall have an attached, enclosed garage for at least two automobiles. The garage shall be constructed at the time ofconstruction of the home and all exterior portions of such garage shall be completed prior to occupancy of the home. The exterior of all homes shall be substantially constructed of natural materials. Vinyl or aluminum siding is acceptable only as trim or accent on the Home. The exterior of all structures shall be constructed of brick, stone, cedar, stucco or a combination thereof. Notwithstanding anything to the contrary contained in this paragraph, comparable or superior construction materials may be substituted ifsaid substituted materials are approved in writing by the Board. Masonry walls on the exterior of the home cannot end at a comer but instead, must abut another wall. Similarly, window casings and trim features on the front of the home shall be used on the sides and rear of the home. Any exposed basement or foundation walls shall be covered with masonry, veneer or cedar. Roofing material shall be architecturalldimensional shingles, cedar shakes, tile or other natural material. The construction materials outlined in this paragraph apply to replacement materials, as well as original construction materials. LOCATION, SETBACK, AND LOT IMPROVEMENTS A. Location. The home or garage or outbuildings (including eaves, steps, overhangs and attached porches, patios and other appurtenances) located on any lot shall be in accordance with the municipal ordinances, the Declaration ofRestrictions and must be approved by the Board. B. Setbacks. The minimum building setbacks are as follows: 5 a. 50 feet from all street property lines; b. 25 feet from all side property lines; and c. 25 feet from all rear property lines. C. Lot Improvements. Notwithstanding the setback and improvement requirements specified above, the orientation and precise location of each home and garage, as well as all other improvements on the lot, must be approved in writing by the Board prior to any construction, it being intended that the Board may, in its discretion, impose greater setback requirements than those specified above in order to achieve or maintain the aesthetic appearance for the subdivision or any portions thereof which the Board deems advisable. APPROVAL OF ARCHITECTURAL CONTROL BOARD REQUIRED FOR ALL IMPROVEMENTS A. No home, garage or other structure or improvement of any kind shall be installed, erected, constructed or placed on any lot (or altered or changed with respect to layout, location or exterior design, appearance, color or material composition) without: (1) prior submission of detailed plans to the Board appropriate for its review and approval; and (2) acquisition of prior written approval by the Board. Plans, to be considered appropriate for review by the Board, must include the following (unless the Board advised a lot owner in writing to the contrary): construction drawings, plans and specifications (prepared by a qualified home designer or architect if the improvement involves construction of a home, garage or addition or change to either) showing dimensions, composition and color of exterior materials and equipment, if any, and a plot plan showing the location of the improvement with respect to setbacks from lot lines and other buildings and improvements, finish grade elevations, topography and other data pertinent to suchreview by theBoard as it may reasonablyrequest. The Board shall not be required to approve any improvement if, in its sole judgment, any one or more of the following purposes will not be satisfied; material composition and quality; exterior design, appearance and color; coordination with other existing or contemplated improvements; location with respect to topography and existing surroundings, setbacks, finished grade elevations, drainage and plantings and general aesthetics. ANY LOT OWNER WHO CAUSES OR ALLOWS ANY IMPROVEMENTS TO BE CONSTRUCTED, INSTALLED, PLACED OR ALTERED ON THE LOT WITHOUT PRIOR WRITTEN APPROVAL OF THE BOARD MAY BE REQUIRED TO REMOVE SUCH IMPROVEMENT lN ITS ENTIRETY AT THE LOT OWNER'S EXPENSE. B. Upon approval by the Board of the plans for the proposed improvement and upon receipt of any necessary City ofMuskego and other governmental approvals or permits, construction or installation of the improvement may commence and, once commenced, shall be completed as to all exterior items within twelvemonths following either acquisition ofBoard approval or issuance of any required building permit by the City of Muskego, whichever is later. The Board may, in its discretion, extend such completion deadline up to an additional six months 6 in the event it finds the delay has been caused primarily by factors beyond the control of the lot owner and hisher contractors. C. In the event the Board fails to act upon proposed plans within 30 days following written acknowledgment by the Board that it has received such plans and that they are adequate for purposes of its review or in the event no suit to enjoin the erection, installation or change of the improvement or to require removal thereof has been commenced within one year following final completion thereof, no right shall exist to thereafter enforce theserestrictions insofar as approval by the Board is required as to such particular matter. D. In order for any approval or permission of the Board under this section to be binding or effective, it must be in writing and signed by the President or Secretary of the Association. No oral statements, representations or approvals by the Board or any of its members or agents shall be binding on the Board under any circumstances, regardless of any reliance thereupon by any lot owner. LANDSCAPTNG AND DRATNAGE A. Within six months following issuance of an occupancy permit for a home, a complete landscaping plan for the entire lot shall be submitted to the Board for its approval. All landscaping shall be completed (in accordance with the plan approved by the Board) within twelve months following the issuance of the occupancy permit for the home. All lots left vacant for more than 12 months from date of purchase must be maintained in a way consistent with the Open Space Management Plan. B. To avoid a substantial increase in surface water drainage onto adjoininglots, the landscaping plan shall provide for adequate drainage of storm and surface water away from adjoining lots if natural drainage on the lot is to be or has been altered by grading or landscaping by the lot owner. C. No lot line, fence, wall, hedge or screen planting shall be installed unless in accordance with landscaping or other plans approved in advance by the Board. In no event will the Board approve a fence or wall within the setback or unimproved areas. DRIVEWAY Each lot shall be improved by the lot owner with an approved hard surface driveway extending from the street to the garage within twelve months following issuance of an occupancy permit for the home. CONSTRUCTION 0 A. No building or construction materials shall be stored on any lot outside of the home or garage, other than during periods of actual construction or remodeling and then only for as long as may be necessary. Excess excavated material shall not be stored on any lot duringor after construction without the prior approval of the Board, unless required for backfilling, finish grading or landscaping. During any earth moving activities, erosion control practices shall be maintained. Each lot owner shall comply with the soil and erosion plan control ordinance of the City ofMuskego and County of Waukesha. B. Each lot owner shall include the following provisions in all construction contracts: 1 The roadway abutting the lot shall be kept clean during the period of construction. 2. There shall be no loud music at the construction site during the period of construction. 3. A dumpster shall be provided at the building site for the period ofconstruction for debris. 4. All burning of debris must comply with municipal burning ordinances and regulations. 5. There shall be no more than one sign on any lot during the period of construction and that said sign shall not exceed six square feet. 6. That no sign of any contractor shall be placed at the entry way to the subdivision. 7. That the contractor shall comply with the soil and erosion plan control ordinance of the City of Muskego and County of Waukesha. If the lot owner does not include such provision in the contract with the contractor or if the lot owner does not enforce the provision, the Board may take the necessary action to enforce the provision at the lot owner’s expense. WIRES AND ANTENNA A. All utility lines and wiring for gas, electric, telephone and cable television service to a home, garage or other improvement shall be installed underground, unless otherwise permitted by the Board and City prior to the installation. B. No rooftop, tower-mounted or other external antenna for television or radio reception, satellite dish or for other electronic transmission or reception shall be erected, installed or used without the prior approval of the Board which shall not be unreasonably withheld. Notwithstanding this prohibition, satellite dishes less than 30” in diameter are permissible. Any lot owner who causes or allows any such rooftop or other external antennas or satellite 8 dishes to be constructed, installed or placed on a lot without the prior written approval ofthe Board may be required to remove such improvement or the Board may remove such equipment in its entirety at the lot owner's expense. SHEDS AND OUTBUILDING Sheds and outbuildings are allowed provided that they shall harmonize with the residence as to design, materials, and finished floor elevation. SWIMMING POOLS Swimming pools shall be permitted, subject to the approval of the Board, if they meet City and County ordinances and specifications. Above-ground swimming pools may be permitted or denied in the sole discretion of the Board. SIGNS No signs or banners of any kind shall be placed or displayed to public view on any lot except one sign of not more than four square feet advertising the property for sale. No signs can be placed at the entry way ofthe subdivision advertising a lot for sale. This provision shall not apply to the marketing of any phase of the subdivision by the Developer. 9 0 MAIL BOXES At closing, each lot owner shall purchase an individual mailbox, which will be supplied by the Developer. SOLAR COLLECTORS No exterior active solar collectors or similar devices shall be erected, installed or used without the written permission of the Board. REFUSE AND GARBAGE DISPOSAL All refuse and garbage receptacles shall be stored in the home, garage or other structure on the premises except for the period twelve hours before and twelve hours after the scheduled garbage pickup. No Lot shall be used or maintained as a dumping area for trash, garbage, refuse or debris of any kind. All trash, garbage or waste materials shall be kept in sanitary containers inside the garage. Outside incinerators are not permitted. HEIGHT OF GRADE No owner of any lot, nor any person or persons claiming under him, shall or will at any time alter the grade of any lot from that which is naturally occurring on the lot at the time the site developments have been completed by the Developer, unless and until the owner shall first obtain the written approval ofthe Architectural Control Board for such grade alterations. In order to obtain the Board's approval, the lot owner must, at hisher own expense, have prepared a grading plan and an erosion control plan which show, in detail, the area to be regraded, the existing and proposed topography and an analysis of the effects on the site drainage. The plan shall not adversely affect the adjacent property owners with regard to drainage or views; the determination of which shall be done by the Architectural Control Board. 0 THE ASSOCIATION CREATION OF ASSOCIATION A. The Developer shall totally control all phases of development and operation of the subdivision, including the Architectural Board until after it sells or transfers 100% of the lots in the subdivision. At that time, all members ofthe Association will be able to vote pursuant to this Declaration. B. The Association shall exist during the term(s) of this Declaration and shall automatically terminate upon termination of this Declaration. ' C. The Association shall exist for the purpose of electing the Architectural Control Board and I maintaining the common areas and other designated lands above referred to. I MEMBERSHIP Each lot owner shall automatically be a member ofthe Association and shall be entitled to one membership and one vote for each lot owned, with ownership of a lot being the sole qualification for membership. POWERS OF THE ASSOCIATION A. The Association shall have the following powers in addition to any others which may be necessary or incidental to performance of any duties or powers of the Association specified in this Declaration: 1, To enforce this Declaration; 2. Hold an annual meeting for the purpose of electing officers and transacting any other business authorized to he transacted by the Association. The Board shall select the specific date, time and place of the annual meeting for a given year and shall furnish written notice to each lot owner; a 3. To adopt rules and regulations and to exercise all other powers necessary to operate the Association for the mutual use and enjoyment of all lot owners; 4. To adopt rules and regulations for the management, operation, maintenance and enjoyment of the common areas; and 5. To levy and enforce collection of assessments and fees for the purposes herein set forth. B. Actions of the Association shall he by majority vote. ARCHITECTURAL CONTROL BOARD A. The Board shall initially consist of three persons appointed by the Developer as President, Secretary, and Treasurer ofthe Association to hold office until successors are elected by the Association. A person must he a lot owner or co-owner of a lot in order to be eligible to serve as an officer and a member of the Board. B. Vacancies in any position on the Board shall be tilled by a majority vote of the Association. 0 c. D. E. F. Regular meetings of the Board shall be held at such times and places as the Board determines by resolution to be appropriate and no notice ofregular meetings shall thereafter be required. Special meetings of the Board may be called by any officer on three days prior notice to each officer, given orally or in writing. For all meetings of the Board, a quorum necessary to transact business shall consist of a majority of the officers and the act of such majority shall be the act of the Board. Any action ofthe Board authorized under this Declaration may be taken upon the unanimous consent of all officers without a meeting. ASSESSMENTS A. B. C. D. E. The owner of each lot shall be subject to a general annual charge of assessment equal to his pro-rata share of the costs incurred or anticipated to be incurred by the Association in performing its duties and discharging its obligation. The pro-rata share of an owner of a lot shall he a fraction, the numerator of which shall be one and the denominator of which shall be the total number of lots subject to this Declaration at the time of the assessment. Said costs shall include, but not be limited to: taxes; insurance; repair, replacement and additions to the improvements made to the Common Area; equipment; materials; labor, management and supervision thereof, and all costs for the Association reasonably incurred in conducting its affairs and enforcing the provisions hereof. All assessments shall be approved at a duly convened meeting of the Association. Written notice of an assessment shall be personally delivered to each owner subject to the assessment or delivered by regular mail addressed to the last known address of such owner Assessments shall become due and payable 30 days after the mailing or personal delivery of the notice of Assessment. Assessments not paid when due shall bear interest at the rate of twelve percent (12%) per annum from the date due until paid; and such unpaid assessments and the interest thereon shall constitute a continuing lien on the real estate against which it was assessed until all such sums have been paid in full. The assessments and interest thereon shall also be the personal obligation of any current or subsequent owner of the lot against which the assessment was made. The Association may record a document with the Register of Deeds in Waukesha County, Wisconsin, giving notice of a lien for any such unpaid assessment and upon payment or satisfaction of the amount due, record a document canceling or releasing any such lien. The failure to file any notice shall not impair the validity of the lien. All recording and attorney fees relating to any such document shall be borne by the affected lot owner. G. H. Upon application by owner, any member of the Association, may provide to such owner a statement in recordable form certifyng that (i) the signer is a duly elected or appointed member of the Board; and (ii) as to the existence of any unpaid assessments or other amounts due to the Association. Such statement shall be binding upon the Board and shall be conclusive evidence to any party relying thereon of the payment of any and all outstanding assessments or other amounts due to the Association. Any lien for assessment may be foreclosed by a suit brought by the Association, acting on behalf of the Association in a like manner as the foreclosure of a mortgage on real property. Upon notification of the Associalion by the City of Common Area maintenance problems, which require correction due to an adverse effect on property owners, public safety, or public health, the specified corrective actions shall be taken within a reasonable time frame as set by the City. The City is authorized, but not required, to perform the corrective actions identified in the notice jf the Association does not make the required corrections in the specified time period. All costs and administrative fees charged to owners in accordance with this section may be placed upon the tax roll as special charges in accordance with Wisconsin Statutes, including 566.0627, Wis. Stats. The lot owners shall be liable for the failure of the Association to undertake any repairs, such liability to be pro-rata according to theirfiactional ownership interest in the Common Area. The cost of any measures undertaken by the City pursuant to this section shall be assessed against the Association or the individual lot owners pro-rata according to their fractional ownership interest in the Common Area in accordance with the provisions of $66.0627, Wis. Stats. It is expressly understood and acknowledged that such cost shall be deemed a special charge for current services and may be levied in accordance with the provisions of $66.0627, Wis. Stats. Any such assessment, which is not paid within sixty days after billing, shall be deemed a delinquent special charge and shall become a lien upon theparcel(s) against which such charge has been assessed. Such delinquent charges shall be extended upon the current or next tax roll as a delinquent tax against the parcel(s) for which payment has not been received by the City, and all proceedings in relation to the collection, return and sale of property for delinquent real estate taxes shall apply to such special charges. MISCELLANEOUS NO REVERSION OF TITLE Under no circumstances shall any violation of this Declaration or of any rules or regulations result in any reversion of title to any lot. RESERVATION BY DEVELOPER OF RIGHT TO GRANT EASEMENTS 13 The Developer hereby reserves the right to grant and convey easements to the City and/or to any public or private utility company, upon, over, through or across those portions of any lot in the subdivision within ten feet of any lot line for purposes of allowing the City or utility company to furnish gas, electric, cable television or other utility service to lot(s) or through any portions of the subdivision or for purposes of facilitating drainage of storm or surface water within or through the subdivision. Such easements may be granted by the Developer, in its own name and without the consent or approval ofany lot platted or to be platted in the subdivision to persons other than a Successor-Developer. SEVERABILITY The invalidity or unenforceability of any term, condition or provision of this Declaration shall in no way affect the validity or enforceability of any other term, condition, or provision of this Declaration, all ofwhich shall remain in full force and effect. COVENANTS RUN WITH LAND All terms, conditions and provisions ofthis Declaration (and as may beamended) shall constitute covenants running with the land. AMENDMENTS TO DECLARATION This Declaration may be amended by recording in the Office of the Register of Deeds for Waukesha County, Wisconsin, a document to that effect executed by the owners of at least fifty percent (50%) of all lots in the subdivision, with all signatures duly notarized, except the "SINGLE FAMILY USE: GENERAL RESTRICTIONS section paragraph "A", which requires adocument to that effect executed by one hundred percent (lOO%) of all the lots in the subdivision. Only the Developer may amend this Declaration prior to the sale ofone hundred percent (100%) of all lots. Any amendment shall become effective onlyupon recording. TERM OF DECLARATION This Declaration (and any amendments) shall be binding for a period of twenty years (from the date the Declaration is recorded) upon all lot owners and any other persons claiming under or through the Developer. Upon the expiration date of such initial twenty year period, this Declaration shall be automatically renewed for a successive period of ten years and thereafter for successive periods of ten years upon the expiration date of the prior renewal period, unless there is a recorded instrument (executed by the owners of at least 50% of all lots in the subdivision or 14 by the Developer prior to selling 100%ofthe lots) terminating this Declaration in which event this Declaration shall terminate upon the recording of such instrument. DISCLAIMER Not withstanding any other provisions ofthis Declaration, the Developer is under no obligation to any lot owner to develop or plat at any time any portion(s) of this subdivision not already platted as of the date of recording of this Declaration. ENFORCEMENT OF DECLARATION A. The Association shall have the exclusiveright to enforce, by proceedings at law or in equity, all the terms, conditions, and provisions of this Declaration and any rules and regulations adopted by the Association, except that any lot owner may proceed, at such owner's expense to enforce any such terms, conditions or provisions if the Association fails to take such action within sixty days following a written request by such lot owner for the Association to do so. Any lot owner violating any of the terms, conditions or provisions ofthis Declaration or any rules or regulations shall pay all costs, expenses and actual attorney's fees incurred by the Association or by a prosecuting owner in the successful enforcement thereof. The Association shall not be subject to any suit or claim by any lot owner for failure of the Association to take any action requested by such lot owner against another lot owner. No lot owner (other than the officers of the Association) shall have any authority to act for the Association for the other lot owners, as agents or otherwise, or to bind the Association or the other lot owners to contracts, negotiable instruments or other obligations or undertaking of any kind. B. Each remedy set forth in this Declaration shall be in addition to all other rights and remedies available at law or in equity. All such remedies shall be cumulative and the election ofone shall not constitute a waiver of any other, Any forbearance or failure of the Association to exercise any such right or remedy for any violation shall not be a waiver of such right or remedy under any circumstances. C. Under no circumstances shall any violation of this Declaration or of any rules or regulations result in any reversion of title to any lot. D. The City ofMuskego shall have no obligation, at any time, to enforce or prosecute any violation of this document, but any forbearance or failure on the part of the City to exercise any right to remedy for any violation shall not be a waiver ofsuch right or remedy under any circumstances. INTERPRETATION 15 These declarations shall be construed and interpreted in favor of restrictions the use of each lot consistent with the purposes hereof and any ambiguity shall be resolved against any lot owner who installs any structure or engages in any activity not clearly authorized under these declarations or approved in writing by the Association. APPLICABLE LAW This Declaration shall be construed and enforced in accordance with, and governed by, the laws of and in the courts of the State of Wisconsin. IN WITNESS WHEREOF, this Declaration of Restrictions is executed by Edward G. Carow as agent for Martin Estates LLC, as Developer, as of the date first written above. MARTIN ESTATES LLC Edward G. Carow, Member 16 0 STATE OF WISCONSN ) ss COUNTY OF WAUKESHA ) Personally came before me this day of ,200 I, the above named Member, to me known to be the person who executed the foregoing instrument and acknowledged the same. Subscribed and sworn to before me this ~ day of ,2002. Notary Public, State of Wisconsin My Commission: This instrument was drafted 0 by Roy E. Wagner, Esq S'CITYH~LL\PLANN~IC~UBDlVlSlONS~TlN ESTATES\DECLARATIONOFRESTRlCTlONS MARTIN ESTATES- mALOZZ6ZWZ Doc 17