CCR2005174COMMON COUNCIL - CITY OF MUSKEGO
RESOLUTION #174-2005
. APPROVAL OF FINAL PLAT, SUBDIVIDER'S AGREEMENT,
AND LETTER OF CREDIT
The Nursery Subdivision
WHEREAS, A Final Plat was submitted on August 24, 2005 by James Schilling for The Nursery
Subdivision located in the SE 1/4 of Section 12 to create 6 single-family lots and one outlot; and
WHEREAS, The Plan Commission has recommended approval through Resolution #P.C. 087-
2005; and
WHEREAS, The Subdivider's Agreement, Retention Pond Maintenance Agneement, Storm
Water Management Plan and Letter of Credit have been received for The Nursery Subdivision
and the Finance Committee has recommended appmval.
NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of Muskego,
upon the recommendation of the Plan Commission, does hereby approve thIs Final Plat for The
Nursery Subdivision, subject to approval of the City Engineer and all objecting and approving
agencies, receipt of all fees as provided in Section 18.14 of the Land Division Ordinance, any
special assessments which may be due, and the conditions outlined in Resolution #P.C. 087-
2005.
.
BE IT FURTHER RESOLVED That the Subdivider's Agreement, Retention Pond Maintenance
Agreement, Storm Water Management Plan and Letter of Credit for The Nursery Subdivision,
as attached, are hereby approved subject to approval of the City Attorney and City Engineer, all
of said approvals to be obtained within thirty (30) days of the date of approval of this Resolution
or the same will be null and void.
BE IT FURTHER RESOLVED That a digital file of this final plat shall be submitted to the City in
accordance with Common Council Ordinance #1118 and Resolution #196-2002.
BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are hereby authorized to
sign the necessary documents in the name of the City, and that the Mayor, in consultation with
the City Attorney, may make any necessary technical corrections.
DATED THIS 13th DAY OF September ,2005.
SPONSORED BY:
FINANCE COMMITTEE
Ald. Bob Melcher
Ald. Nancy C. Salentine
Ald. Eileen Madden
.
This is to certify that this is a true and accurate copy of Resolution #17 4-200~5 which was
adopted by the Common Council of the City of Muskego.
9/05jmb jW-
08/30/2005 16: 01 94145253209 SF13 LOAN ADMIN PAGE 02/03
. I)) State Financial Bank
Letter of Credit No. 2293
Amount: $212,219.00
Applicant: . The Nursery
C/O JS Development LLC
1139 Schneider Lane
Burlington, WI 53105
Beneficiary: City of Muskego
Post Office Box 749
W182 58200 Racine Avenue
Dear Sirs:
. We hereby issue this irrevocable documentary credit in your favor, which is availelble by
beneficiary's draft(s) at sight drawn on State Financial Bank, NA Each draft accc)mpanying
documents must state ": Drawn Under Sate Financial ,sank, N.A. Documentary Clredit No. 2293,"
This Standby Credit is to provide a guarantee to the City of Muskego for the perfo1rmance of
Applicant obligations under that certain agreement dated between tile
City of Muskego and Applicant.
DRAFTS ARE TO BE ACCOMPANIED BY:
A statement signed by the Mayor of the City of Muskego stating that Applicant has failed to
complete the constructIon of subdivision improvements in accordance with said Agreement or
otherwise comply with the obligations of the Agreement. Said statement shalf 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 1!t day of December 2006 provided, however, State
Financial Bank; N.A. shall give written notice to the beneficIary of its intention to tÈ!rminate thi3
standby credit åt ninety (90) days prior to tl1e 1st day of December, 2006, After said date, this
letter of credit can only terminate upon ninety (90) days written notice to the beneflciary.
It is hereby agreed by all parties hereto that the referenced "Agreemenf' is for identification
purposes only and such reference shall not be construed in any manner to require! State
Financial Bank. N.A., to inquire into its terms and obJig,ations.
.
Dartldr, IL . Rrookn<:ld, WI . Rllrliogton. WI . Crystal L.J.kc, IL · Elgin, II. . Elkhorn, WI . Fox Point. WI · Glendale. WI . Glenview. Il · Greenfield, WI
GurnE!f', II. . Hales Cornf!r~, WI · Libt:rlyviJIe, IL · Milwaukef\, WJ . Ml.lskl::~o, WI . New ß<ó:rlín, WI . Richmond, II.. . Roselle. IL . South Elgin, II.
Wiltl'llÍord. WI · Wilukesh:\, WI · WalJke~ùn. IL · Wnitefish Bay, WI
08/30/2005 16: 01 94145253209 SFB LOAN ADMIN PAGE 03/03
. . State Financial Bank
We encourage with you that drafts drawn under and in compliance with the terms of this cre'dit
will be duly honored if presented on or before the expil"atlon date. This original St::lndby Crecjit
must be submitted to us together with any drawings for our endorsement of any p:ayments
effected by us and/or for cancellation.
SIncerely,
State Finanoia.l Bank, N.A.
NAME OF BANK
.
By
AUTHORIZED SIGNATURE
Thomas M. Lilly
Senior Vice President
By
AUTHORIZED SIGNATURE
Jeri M. Sturino
Senior Vice President
.
R,Jrllell. IL . IJmnkfield. WI . l~urlinston. WI . CrysT,.11 L<lkc, IL · Elgin. IL · Elkhnm, WI . Fo/< PoinT, WI . Glenr.l~le, WI · Glenview, ,t · Grp.enfjeld. WI
Gurnee. IL . H.,I~$ Coml::~, WI . libertyville, II. . Milwaukee, WI . Muskc~o. WI . New Gerlin, WI . Rit;hm(1nd, rL . Kos",Ue, IL ., Sourh F.lgin. IL
Watarfnrcl, WI · Waukp.$h,1, WI · W~llkl'!~~on, IL · Whitefi$h Bay. WI
JS DEVELOPMENT LLC - CITY OF MUSKEGO
. THE NURSERY SUBDIVIDER'S AGREEMENT
This Agreement, made this 2nd day of February, 2005 by and between JS DEVELOPMENT 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 The Nursery Subdivision (the "Subdivision"), a part of the lands described as:
Part of the Northeast X and the Southeast X of the Southeast X of section 12, Town 5 North, Range 20
East, In the City of Muskego, Waukesha County, Wisconsin.
Commence at the south X of Section 12; thence N 87^13'57" E along the south line of said X section, 1331.17 feet to the west line of the east % of said X sel:;tion: thence N 01^15'1/'" W along the west line
of the east % of said X section, 665.51 feet to the point of beginning of land hereinafter described:
thence continue N 01 ^15'17" W along said west line, 395.52 feet; thence N 8Ei^52'05" E, 151.56 feet;
thence N 01^20'32" W, 80.59 feet; thence S 88^52'05" W, 58.60 feet; thence N 01^20'32" W, 239.21 feet to the centerline of McShane Drive; thence N 85^59'30" E along said centerline, 212.81 feet; thence S 01^19'47" E, 717.43 feet; thence S 87^15'47" W, 305.98 feet to the point of beginning. Containing
4.2230 acres of land.
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 émd 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 municipallity; and
WHEREAS, The City's Engineers, the City's Public Works Committee, Public Utility Committee
and Finance Committee have duly approved, contingent of certain other approvals, Subdivider's plans and specifications for subdivision improvements, and the~ City's Plan Commission and Common Council
have duly approved the final plat of The Nursery Subdivision contingent in part upon the execution and
performance of this Agreement by the Subdivider.
NOW, THEREFORE, In consideration of the covenants herein contained, the parties hereto agree as
follows:
SECTION I: PLATTING
1. This Subdivider's Agreement addresses the development of 6 parcels pl,atted for single family
residential use, all being under the Provisions of Chapters 17 and 18 of the Municipal Code, and
under the auspices of RS-2 Suburban Residence District zoning.
.
a) Single family parcels in this Plat shall conform to the zoning requirements of RS-2 Suburban
Residence District, being a minimum of 20,000 square feet in area and 110 feet in average lot
width.
2. Subdivider shall entirely at its expense:
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The Nursery Subdividers Agreement
. a) Concurrent with the execution of this Agreement tender an Irrevocable Standby Letter of Credit in
the amount required herein for the construction (If improvements required by this Agreement. No
construction activity may commence until this Aweement 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 recordin!~ the Plat, the City will have good, indefeasible
title to all interests in land dedicated or conveyed to the City by the Plat.
c) Within six (6) months of approval of this Agreement by the Common Council, the Subdivider shall
execute this Agreement, shall cause this Agreement to be recorded at the Waukesha County
Register of Deeds, and shall provide City with evidence of recording.
d) Within six (6) months of approval by all approving authorities and w81iver of objection by all objecting authorities, the Subdivider shall cause the final plat of The Nursery to be executed and
recorded, and shall provide City with evidence of recording.
e) Place and install monuments required by State Statute or City Ordinance.
SECTION II : PHASING
1. Subdivider and City agree that final platting and the installation of public and private improvements
described in Section III shall occur in one phase.
.
SECTION III: IMPROVEMENTS
Subdivider shall entirely at its expense:
A. ROADS AND STREETS:
1. Grade and improve all roads and streets in accordance with the plans and specifications approved by the Public Works Committee on July 18, 2005, including off site improvements necessary to
provide such roads and streets, including grading and gravel, curb and gutter, and asphalt street
improvements, as approved by the Director of Engineering and Building and Public Works
Committee as indicated in the plans and specifications on file with the Engineering and Building
Department.
2. Restore any damage to existing pavement, curb, glutter, and landscaping which may result from
construction of subdivision improvements.
3. Reimburse the City for the cost of all street signs, stl"eet lights, traffic signs émd posts, including the
cost of their installation.
B. STORM AND SURFACE WATER DRAINAGE AND MASTER GRADING PLAN:
1.
.
Construct, install, furnish and provide facilities as approved by the Director of Engineering and Building and Public Works Committee on July 18, 2005 for storm and surface water drainage
throughout the entire Subdivision and off site improvements as necessary, and a Master Grading
Plan providing for sump pump discharge to a tile or storm sewer system, all in accordance with the
plans and specifications on file in the Building and Engineering Department. The City retains the
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The Nursery Subdividers Agreement
. right to require the Subdivider to install at Subdivider's cost additional storm drainage and erosion
control measures prior to acceptance of improvements by the City of Muskego.
2. Grade and improve all lots, on and off site, in conformance with the lVIaster Grading Plan as
approved by the Director of Engineering and Buildin!~ and Public Works Committee on July 18, 2005
all in accordance with the plans and specifications on file in the City Building and Engineering
Department. Restore with topsoil and seed. Establish dense vegetation.
3. Clean all Storm Sewers prior to acceptance of improvements and the issuance of building permits by
the City.
4. Execute and record a Maintenance Agreement in the form attached hereto, which document shall be
incorporated herein and made part hereof, as approved by the Director of Engineering and Building
and Public Works Committee on July 18, 2005 relating to privately owned storm water
appurtenances, and provide proof of recording prior to sale of lots in the Subdivision. Keep and
maintain all storm sewers, retention or detention ponds, and surface water drainage features which
are outside of the rights-of-way in perpetuity, as provided for in the Maintenance Agreement.
C. SANITARY SEWER:
1. Construct, install, furnish, and provide without cost to City, a complete sanitary sewage collection
system throughout the entire Subdivision, and including off site improvements necessary to provide
such system, as approved by the Director of En~~ineering and Building and the Public Utilities
Committee on July 18, 2005 all in accordance with the plans, specifications and drawings on file in
the City Building and Engineering Department. .
2. Complete, to the satisfaction of the Director of Engineering and Building, any remaining punch list
items concerning the Sanitary Sewer System prior to the connection of any structure to the sanitary
sewer systems.
3. Televise the sanitary sewer system, repair any defects as determined by the Director of Engineering
and Building, and supply video tape to the City of Muskego, and clean all sewer lines prior to the
issuance of building permits, and acceptance of improvements by the City.
E. LANDSCAPING:
1. Preserve existing trees outside of the public right-Iof-way to the maximum extent possible, when
installing the Subdivision improvements. Replace trE:!es in accordance with plans to be approved by
the Plan Commission.
2. Remove and lawfully dispose of destroyed trees, brush, tree trunks, shrubs and other natural growth,
and all rubbish.
3. Plant street trees without cost to City in accordance with Section 18.60 of the Muskego Land Division
Ordinance and the adopted Urban Forestry Management Plan and Urban Forestry Strategic Plan
dated March 28, 2000 and adopted by the Common Council on July 11, 2000 and in accordance with
plans to be approved by the Planning Director and City Forester prior to the release of occupancy
permits. Planting may be deferred until the time that ninety percent (90%) of the homes have been
completed or thirty-six (36) months after installation of the first lift of asphalt, whichever comes first. .
F. EROSION CONTROL MEASURES:
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.
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The Nursery Subdividers Agreement
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 291.06 of the City's Erosion
Control Ordinance by the Director of Engineering arid Building and Public Works Committee on July
18, 2005 and in accordance with the plans and specifications on file in the Building and Engineering
Department.
2. Construct, install, furnish and provide without cost to City, a complete system of Erosion Control
Devices or measures in specified areas of the Subdivision, on and off-site, in accordance with the
Erosion Control Plan as approved by the Director of Engineering and Building and Public Works
Committee on July 18, 2005 and in accordance with the plans and specifications on file in the City
Building and Engineering Department. No construction or grading can bl~gin until said permit is
issued by the City, and no grading shall occur without a two (2) day notice to the City.
3. Install silt fencing in conformance with the approved Erosion Control Plan prior to the grading and
construction work. Such fences shall be maintained by the Subdivider until such time as vegetative
cover is established in the Subdivision. Install mulching and seeding of all disturbed areas to comply
with Municipal Code Chapter 29.
4. Insure that each individual lot owner obtains a separate erosion control permit at any time that any
vegetation is disturbed, and insure that each individual lot owner is responsible for controlling erosion
on their subject lot.
SECTION IV: TIME OF COMPLETION OF IMPROVEME~ITS
The improvements set forth in Section III, except for final surface course of pavement as described
herein, shall be completed by the Subdivider within one (1) year from the siglning of this Agreement
except if an earlier date is provided for in the Agreement. The final surface course of pavement may be
deferred until ninety percent (90%) of the homes have been completed, or thirty-six (36) months after
the installation of the first lift of asphalt, whichever comes first.
If the final surface course of pavement, is not completed within twelve (12) months of the date of this
Agreement, the Subdivider shall extend the Letter of Credit in a form acceptable to the City until such
time as the final surface course of pavement is completed.
If the City receives notice of the intention to terminate the Letter of Credit prior to completion of the final
surface course pavement, such notice shall be considered a failure to complete improvements in
accordance with this agreement and shall entitle the City to immediately draw against the Letter of
Credit.
SECTION V : AS-BUILT CONSTRUCTION PLANS
Subdivider authorizes the City to prepare all necessary as-built construction plé:lns for improvements to
be dedicated to the City. Subdivider agrees to reimburse City for all costs incurred in the preparation
and distribution of as-built data, including collection of data, revisions to construction documents and
upload of data to City's Geographic Information System, and City may utilize Subdivider's Developers
Deposit account for all charges related hereto.
Subdivider authorizes the City to convert digital files submitted by Subdivider pursuant to Section
18.32(3)(i) of the Municipal Code of the City of Muskego and Common Council Resolution No. 196-2002
to any format deemed necessary by City. Subdivider agrees to reimburse City for all costs incurred in
said conversions and City may utilize Subdivider's Developers Deposit account for all charges related
hereto.
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The Nursery Subdividers Agreement
SECTION VI: DEDICATION AND ACCEPTANCE OF IMPROVEMENTS
Subject to all of the other provisions of this agreement, Subdivider shall, without charge to the City, upon
completion of the above described improvements, unconditionally give, grant, convey and fully dedicate
the streets, sanitary sewers, storm water drainage facilities (excluding those f.acilities which are to be
owned and maintained by The Nursery Home Owners Association) to the City, its successors and
assigns, forever, free and clear of all encumbrances (except those encumbrances that may be
acceptable to the City) whatever together with and including, without limitation because of enumeration,
any and all land, buildings, structures, mains, conduits, pipes lines, plant, machinery, equipment,
appurtenances and hereditaments which may in any way be a part of or pertain to such improvements
and together with any and all necessary easements for access thereto. The City will be receptive to the
dedications of improvements, except private storm water drainage facilities, after the first lift of
bituminous concrete pavement has been installed, when all said utilities have been completed and
approved by the City Engineers and other agencies as applicable.
Dedication shall not constitute acceptance of any improvement by the City. The City shall not accept the
dedication of any improvements which do not fully comply with City standards and specifications. Claims
of financial hardship by the Subdivider shall not be! considered a reason for the City to accept
substandard materials or work.
At such time as all improvements are completed and ac<ceptable as called for under this Agreement, and
all approvals have been received from regulatory agenclies, such improvements shall be accepted by the
City by separate Resolution. The Resolution of Acc'sptance shall be recorcled 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 A~lreement, in accordance
with Section 18.14 of the Land Division Ordinance and Ordinance No. 909, and at times specified herein,
but in any event, no later than thirty (30) days after billing, all fees, expenses and disbursements which
shall be incurred by the City prior to and following the date hereof in connection with or relative to the
construction, installation, dedication and acceptance of the improvements <covered by Section III,
including without limitation by reason of enumeration, design, engineering, preparing, checking and
review of designs, plans and specifications, supervision, inspection to insure~ that construction is in
compliance with the applicable plans, specifications, regulations and ordinances; and legal,
administrative and fiscal work undertaken to assure and implement such compliance. Failure to payor
reimburse the City in a timely manner may cause the City to cease all construction inspections until such
time as all anticipated or outstanding inspection and administration fees have belen satisfied.
SECTION VIII: MISCELLANEOUS REQUIREMENTS
The Subdivider shall:
1. Easements: Provide any easements on Subdivider's land deemed necessary by the Director of
Engineering and Buildings prior to the Final Plat being signed, provided sUl:::h easements are along
lot lines or to the rear of the lots and are not any more restrictive to the building of homes beyond the
applicable side yard and offset distances required by the zoning for such lots.
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The Nursery Subdividers Agreement
. 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. Extras: Place $5,500 in an account with the Sewer Utility for impeller upgradE~s to Valley Green pump
station.
SECTION IX: GENERAL CONDITIONS AND REGULATIONS
Municipal Codes and Ordinances: All the provisions of the City's ordinances arE~ incorporated herein by
reference, and all such provisions shall bind the parties hereto and be a part of this Agreement as fully
as if set forth at length herein. This Agreement and all work and improvements required hereunder shall
be performed and carried out in strict accordance with and subject to the provisions of said ordinances.
SECTION X: GUARANTEES
The Subdivider shall guarantee the public roads and streets, sanitary sewers, surface water drainage
improvements and all other improvements described in Section III, against defects due to faulty
materials or workmanship provided that such defects appear within a period of one (1) year from the
date of acceptance. The Subdivider shall pay for any damages to City propl3rty resulting from such
faulty materials or workmanship. This guarantee shall not be a bar to any action the City might have for
negligent workmanship or materials. Wisconsin law on negligence shall govern such situation.
SECTION XI : GENERAL INDEMNITY
. In addition to, and not to the exclusion or prejudice of, any provisions of this agreement or documents
incorporated herein by reference, Subdivider shall indemnify and save harmless, and agrees to accept
tender of defense and to defend and pay any anel all reasonable legal, accounting, consulting,
engineering and other expenses relating to the defense of any claim asserted or imposed upon the City
its officers, agents, and employees, and independent contractors growing out of this agreement as
stated above by any party or parties except those claims asserted by Subdivider against City, its officers,
agents and employees in an effort to enforce this A~lreement. The Subdivider shall also name as
additional insured on its general liability insurance the City, its officers, agents, émd 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.
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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 pE~rformance 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 causl3d in whole or in part by
any negligent act or omission of the Subdivider, its officers, agents, independent contractors, and
employees or anyone for whose acts any of them may be made liable, regardless of whether or
not it is caused in part by a party indemnified herein. In any and all clalims 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 helld 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.
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The Nursery Subdividers Agreement
b) Personal Liabilitv of Public Officials. In carrying out any of the provisions of this Agreement or in
exercising any power or authority granted to them thereby, there shall be no personal liability of
the City officers, agents, independent contractors, or employees, it being expressly understood
and agreed that in such matters they act as agents and representatives of the City.
c) Indemnification for Environmental Contamination. The Subdivider shall indemnify, defend, and
hold City and its officers, agents, independent contractors, and employees harmless from any
claims, judgments, damages, penalties, fines, costs, or loss (including reasonable fees for
attorneys, consultants, and experts) that arise as a result of the presence or suspected presence
in or on the real property dedicated or conveyed to the City by, under, pursuant to, or in
connection with the Plat and this Agreement (including but not limited to street right-of-way) of
any toxic or hazardous substances arising from any activity occurring prior to the acceptance of
all improvements. Without limiting the generality of the foregoing, the indemnification by the
Subdivider shall include costs incurred in connection with any site investigation or any remedial,
removal, or restoration work required by any local, State, or Federal agencies because of the
presence or suspected presence of toxic or hazardous substances on or under the real property,
whether the soil, groundwater, air, or any other receptor. The City agrees that it will immediately
notify Subdivider of the discovery of any contamination or of any facts or circumstances that
reasonably indicate that such contamination may exist in or on the real property. Upon receipt of
notice from the City or other entities, Subdivider shall investigate and rectify conditions which
indicate the presence of or suspected presence of contamination on the subject property as
identified by local, state, or federal agencies in order to comply with applicable laws.
d) Subdivider shall, at its expense, obtain and carry comprehensive general liability insurance with
combined single limits of at least One Million Dollars ($1,000,000.00) for one person and at least
Five Million Dollars ($5,000,000.00) per occurrence, and at least One Million Dollars
($1,000,000.00) property damage (or such higher amounts as the City shall from time to time
deem reasonable). Such policy shall cover both Subdivider and the City and its agents,
employees, and officials, and all insurers shall a!~ree not to cancel or change the same without at
least thirty (30) days written notice to the City. A certificate of Subdivider's insurance shall be
furnished to the City upon execution of this Agreement. Each such poll icy shall provide that no
act or default of any person other than the City or its agents shall render the policy void as to the
City or effect the City's right to recover thereon.
SECTION XII: AGREEMENT FOR BENEFIT OF PURCHASIERS:
The Subdivider shall agree that in addition to the City's rights herein, the provisions of this Agreement
shall be for the benefit of the purchaser of any lot or any interest in any lot or parcel of land in the
Subdivision. Further, that the sale of any lot or parcel shall not release the Subdivider from completing
the work provided for under this Agreement, by applicable Ordinances and as set forth in the plans and
specifications on file in the City Building and Engineerin!~ Department.
SECTION XIII CONSTRUCTION PERMITS. ETC...
The City shall, within its authority:
1. Issue such permits, adopt such resolutions, and execute such documents as may be necessary to
permit the Subdivider to construct the improvements in accordance with the plans and specifications
called for by this agreement, upon Subdivider's compliance with any deposit provisions or other
requirements of the applicable ordinances or regulations.
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. 4.
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The Nursery Subdividers Agreement
2. Furnish the Subdivider such permits or easements as may be required to enter upon and install the
previous described improvements in any public street or public property.
3. Cooperate with the Subdivider in obtaining similar permits, resolutions and documents as may be
necessary from other authorities having jurisdiction in the premises.
4. Make available to the Subdivider or their nominee successors or assigns, permits for the
construction of single family residences subject to the provision of Section XIII.
SECTION XIV: BUILDING AND OCCUPANCY PERMITS:
It is expressly understood and agreed that no building permits or occupancy permits shall be issued for
any homes until the Director of Engineering and Building has determined that:
1. The sanitary sewer and surface water drainage facilities required to :serve such homes are
connected with an operational system as required herein, and the installation of the bituminous
concrete base course pavement has been properly installed, and
2. Deed Restrictions and the Stormwater Management Maintenance Agreement have been recorded,
and
3. Video tape of sanitary sewer system has been completed by the Utilities Department, and the results
found acceptable by the Utility Superintendent, and
Certification is provided to the Director of Engineening and Building by a Rl~gistered Land Surveyor
that all lot grades conform to the Master Grading Plan, and
5. Negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Planning
Director.
It is expressly understood and agreed that no occupancy permits shall be issued for any homes until the
Planning Director has determined that:
1. Street Tree Plans as required by Section III E (3) of this Agreement have been approved.
SECTION XV: FINANCIAL GUARANTEES:
1. LETTER OF CREDIT: Concurrent with the execution of this Agreement by the City, the Subdivider
shall file with the City a Letter of Credit setting forth terms and conditions approved by the City
Attorney and Finance Committee on August 23, 2005 in the amount of $21:2,119.00 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 nojt 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 Din~ctor of Engineering and
Building with a written request accompanied by: invoices for work completed for which a release
is being requested, breakdown of invoices in the format of the Public Improvement Cost
Breakdown form, and signed original lien waivers for all work which is subject of the release
.
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The Nursery Subdividers Agreement
request. The Director of Engineering and Building will process all requests in accordance with
policies adopted by the Finance Committee, as may be amended from time to time.
2. DEVELOPER'S DEPOSIT: The Subdivider shall maintain a $10,000.00 balance in the Developer's
Deposit. No reduction of the Letter of Credit bal,ance shall be entertainE~d until the Developer's
Deposit is satisfied unless otherwise authorized by the Common Council following a recommendation
of the Finance Committee.
3. PRESERVATION OF ASSESSMENT RIGHTS:
a) Waiver of Notice. In addition to other remedies provided to the City by this Agreement, the City
shall have the right, without notice or hearing, to impose special assessments for any amount to
which the City is entitled by virtue of this Agreement upon the Subdivision. This provision
constitutes the Subdivider's consent to the installation by the City of all improvements required by
this Agreement and constitutes the Subdivider's waiver of notice and consent to all special
assessment proceedings as described in Section 66.0703(7)(b), Wis. Staltutes.
b) Remedies not exclusive. The City may use any other remedies available to it under the
Agreement or in law or equity in addition to, or in lieu of, the remedies provided herein.
SECTION XVI: PARTIES BOUND:
Subdivider or its assignees shall be bound by the terms of this agreement or any part herein as it applies
to any phase of the development. Approval by the City shall not be deemed ;a waiver as the ultimate
responsibility for the proper design and installation of streets improvements, drive and parking areas,
drainage facilities, ditches, landscaping and all other improvements shall be the Subdividers. The fact
that the City or it's engineers, or it's attorney, or it's staff may approve a specific project shall not
constitute a waiver, or relieve the Subdivider from ultimate responsibility for the design, performance,
and function of the Development and related infrastructure.
SECTION XVII: AMENDMENTS AND ASSIGNMENT:
Subdivider shall not assign this Agreement without the written consent of the! City. The City and the
Subdivider, by mutual consent, may amend this agreement, by written agreememt between the City and
the Subdivider.
SECTION XVIII: NOTICES AND CORRESPONDENCE~
Unless otherwise stated in this Agreement, the delivery of all notices and correspondence shall only be
effective upon being delivered personally, sent by prepaid United States Posltal Service certified mail
with return receipt requested, sent by facsimile with transmission confirmation, or sent by electronic mail
with return receipt requested, to all parties as follows:
To City:
Planning Department
City of Muskego
POB 749
W182 S8200 Racine Avenue
Muskego, WI 53150-0749
(262) 679-4136
(262) 679-5614 facsimile
To Subdivider:
JS DEVELOPMENT LLC
Attn: James Schilling
1130 Schneider Lane
Burlington, WI 53105
(262) 210-6198
(26~~) 514-4129 facsimile
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Page 10
The Nursery Subdividers Agreement
All notices shall be considered to have been delivered at the time such notices are personally delivered
to each party, or three (3) days after the date of postmark on any prepaid certified letter, facsimile
transmission, or electronic mail.
Parties to this Agreement shall give fifteen (15) days notice of any change of mailing address, telephone
or facsimile number, or electronic mail address. Failure to provide said notice may constitute a default
by the party.
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The Nursery Subdividers Agreement
SECTION XIX: PARTIES TO THE AGREEMENT
IN WITNESS HEREOF, Subdivider has caused this Agreement to be signed by its appropriate officers
and their seals to be hereunto affixed in duplicate original counterparts on the date and year first written
above.
A. JS DEVELOPMENT LLC
By:
James Schilling, Member
STATE OF WISCONSIN )
) SS
WAUKESHA COUNTY )
PERSONALLY came before us this 2nd day of February, 2005, JS DEVELOPMENT 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
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Page 12
The Nursery Subdividers Agreement
IN WITNESS HEREOF, City has caused this Agreemt:mt to be signed by its appropriate officers and
their seals to be hereunto affixed in duplicate original counterparts on the date and year first written
above.
B. CITY OF MUSKEGO:
BY:
Charles Damaske, Mayor
BY:
Janice Moyer, City Clerk-Treasurer
STATE OF WISCONSIN) SS
WAUKESHA COUNTY )
PERSONALLY came before me this 2nd day of February, 2005, the above named Charles Damaske,
Mayor, and Janice Moyer, City Clerk-Treasurer of the City of Muskego, to me ~~nown 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 eXE!cuted 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 23rd day of August, 2005.
Notary Public-State of Wisconsin
My Commission Expires
CERTIFICATION
This is to certify that the foregoing is a true and corrE~ct copy of the Subdividler's Agreement for The
Nursery Subdivision, Muskego, Wisconsin, as entered into on the 2nd day of February, 2005, by and
between JS Development LLC and the City Of Muskego, pursuant to the authorization by the Common
Council from their meeting on the 23rd day of August, 2005.
BY THE COMMON COUNCIL
JanicE~ Moyer, City Clerk-Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
This 2nd day of February, 2005.
My commission expires
This instrument drafted by Jeff Muenkel, Director of Planning
City of Muskego PO Box 0749 Muskego, WI 53150-0749
.
.
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THE NURSERY SUBDIVISION
RETENTION POND MAINTENANCE AGREEMENT
This Agreement is made and entered into this 2n~dél.yiof February, 2005, by and
between JS DEVELOPMENT LLC (hereinafter referred to as "Subdivider"), the
incorporated The Nursery Home Owners Association, Inc. a non-stock corporation
(hereinafter the "Association") and the City of Muskego, a Municipal Corporation located
in the County of Waukesha and the State of Wisconsin, (hereinafter referred to as
"City").
WITNESSETH:
WHEREAS, the Subdivider has submitted for approval by the City a Final Plat for The
Nursery Subdivision (the "Subdivision"), being a part of the lands described as:
Part of the Northeast ~ and the Southeast ~ of the Southeast ~ of section 12, Town 5
North, Range 20 East, In the City of Muskego, Waukesha County, Wisconsin.
Commence at the south ~ of Section 12; thence N 87^13'57" E along the south line of
said ~ section, 1331.17 feet to the west line of the east Y:z of said ~ sedion: thence N
01 ^15'17" W along the west line of the east Y:z of said ~ section, 665.51 feet to the point
of beginning of land hereinafter described: thence continue N 01 ^15'1 T' W along said
west line, 395.52 feet; thence N 88^52'05" E, 151.56 feet; thence N 01^20'32" W, 80.59
feet; thence S 88^52'05" W, 58.60 feet; thence N 01^20'32" W, 239.21 feet to the
centerline of McShane Drive; thence N 85^59'3()" E along said centerline, 212.81 feet;
thence S 01^19'47" E, 717.43 feet; thence S 8'7^15'47" W, 305.98 feet to the point of
beginning. Containing 4.2230 acres of land.
WHEREAS, The City has approved the plat of The Nursery Subdivision and the
construction of storm water retention ponds within an outlot on the Property; and
WHEREAS, The Subdivider has received various City permits, Army Corps of Engineers
permits, and Wisconsin Department of Natural Resources permits hereinafter referred
to as DNR permits to construct The Nursery Subdivision; and
WHEREAS, The Nursery Subdivision is upstream from the Root River Watershed and
the Muskego-Wind Lake Priority Watershed, and the City and DNR has lexpended great
effort and expense to remove sediment and rough fish from said watershed; and
WHEREAS, The City and the DNR have established certain requirements for retention
ponds and storm water management to be constructed in The Nursery Subdivision to
minimize flooding and sediment migration to adjacent wetlands, watersheds, and other
tributary properties; and
WHEREAS, The Subdivider has established Tile Nursery Home OwnElrs Association,
Inc. a non-stock corporation consisting of the owners of Parcels Lots 1-6 inclusive,
hereinafter referred to as the "Association", which shall become the owner of certain
outlots upon recording of the final plat and The Nursery Declarations of Protective
Covenants. Upon completion of the storm water retention ponds the Association shall
be responsible for the maintenance of the retention ponds constructed thereon; and
WHEREAS, the City intends to reserve the right to enforce the requirement that the
storm water retention pond areas are maintained in a manner consistent with DNR
requirements and with this Agreement and the Storm Water Management Plan dated
.
The Nursery Subdivision
Retention Pond Maintenance Agreement
Page 2
July 18, 2005 on file in the offices of the City of Muskego Building Department as
required by the City of Muskego Storm Water Management ordinance;
NOW THEREFORE, in consideration of the mutual covenants and agreements.
IT IS AGREED, as follows:
1. The Association, unless otherwise provided for in the Storm WatHr Management
Plan, shall be responsible for maintenance of the storm water management
measures.
2. The Association shall maintain the storm water management measures in
accordance with the approved Storm Water Management Plan dated July 18, 2005
on file in the offices of the City of Muskego Building Department as required by the
City of Muskego Storm Water Management Ordinance.
3. The City of Muskego is authorized to access the Property to conduct inspections of
storm water practices as necessary to ascertain that the practices are being
maintained and operated in accordance with the approved storm watl3r management
plan.
.
4. The Association, on an annual basis, shall provide maintenance of each storm water
management measure, including but not limited to, removal of debris, maintenance
of vegetative areas, maintenance of structural storm water management measures
and sediment removal.
5. Upon notification to the Association, by the City of Muskego, of maintenance
problems which require correction, the specified corrective actions shall be taken
within a reasonable time frame as set by the City of Muskego.
6. The City of Muskego is authorized to perform the corrective actions identified in the
inspection report if the Association does not make the required corrections in the
specified time period. The costs and expenses shall be entered on Ithe tax roll as a
special charge or special assessment against Lots 1-6 inclusive on an equal pro-rata
basis and collected with any other taxes levied thereon for the year in which the work
is completed.
7. The Subdivider shall deposit in a segregated account with the City three thousand
dollars ($3,000.00) to cover the estimated costs associated with the pond draw
downs necessary for the first five (5) years. Upon commencement of the sixth (6)
year, and continuing in each year thereafter, the City shall invoice the Association in
an amount sufficient to return the account balance to one thousand dollars
($1,000.00). Said billing shall occur prior to November 1 of each calendar year, to
cover the costs associated with the pond draw downs in the following year.
.
8. Any annual costs in excess of the $1,000.00 account balance, and which are
associated with the retention pond draw downs, shall be billed to the Association.
Costs not paid shall be placed in equal amounts as a special assessment or special
charge on the tax bills for the residential lots. If the Owners Association has not
been released by Subdivider upon commencement of the sixth (6) year, the
Subdivider shall deposit a minimum of one thousand dollars ($1,000.00) per year for
each year said incorporation does not occur, plus any additional costs as deemed
necessary by the City
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The Nursery Subdivision
Retention Pond Maintenance Agreement
Page 3
9. This document is a part of the The Nursery Subdivider's Agreement, which terms are
incorporated herein, and shall be recorded with the Waukesha County Register of
Deeds and shall be a covenant running with the land and binding upon all owners of
said land and their successors in interest.
IN WITNESS WHEREOF, Subdivider has caused this Agreement to be signed by its
appropriate officers and their seals to be hereunto affixed in dUiplicate original
counterparts on the date and year first written above.
A. JS DEVELOPMENT LLC
By:
James Schilling, Member
STATE OF WISCONSIN) SS
WAUKESHA COUNTY )
PERSONALLY came before us this 2Ill1â~Y(:)f::l::'~þrl.Jary,2005, JS Development LLC to
me known to be the person who executed the foregoing instrument and acknowledged
the same.
Notary Public, Waukesha County, Wisconsin
My commission expires
IN WITNESS WHEREOF, the incorporated The Nursery Home Owners Association, Inc.
has caused this Agreement to be signed by its appropriate officers and their seals to be
hereunto affixed in duplicate original counterparts on the date and year first written
above.
The Nursery Subdivision
Retention Pond Maintenance Agreement
Page 4
. B. THE NURSERY HOME OWNERS ASSOCIATION, INC.
By:
James Schilling, Director
STATE OF WISCONSIN}SS
WAUKESHA COUNTY}
PERSONALLY came before us this 2nd day of February, 2005, James Schilling, to me
known to be the person who executed the fore~,oing instrument and aclknowledged the
same.
Notary Public, Waukesha County, Wisconsin
My commission expires
IN WITNESS WHEREOF, City has caused this Agreement to be signed by its
appropriate officers and their seals to be hereunto affixed in duplicate original
counterparts on the date and year first written above
. CITY OF MUSKEGO
By:
Charles Damaske, Mayor
By:
Janice Moyer, City Clerk-Treasurer
STATE OF WISCONSIN}SS
WAUKESHA COUNTY}
Personally came before me this the above named Charles
Damaske, Mayor and Janice Moyer, City Clerk-Treasurer, of the above-named
municipal corporation City of Muskego, to me known to be the persons executed the
foregoing instrument, and to me known to be such Mayor and City Clerk-Treasurer of
said municipal corporation, and acknowledge!d that they executed the foregoing
instrument as such officers as the deed of said municipal corporation by its authorit~ and
pursuant to the authorization by the Common Council from their meeting on the 25 day
ofJaOlJary, 2005.
. Notary Public, Waukesha County, Wisconsin
My commission expires
.
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The Nursery Subdivision
Retention Pond Maintenance Agreement
Page 5
CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Retention Pond
Maintenance Agr~~.r1Jent for.T~~Nursery Subdivision, Muskego, Wisconsin, as entered
into on this ?~d daY:iipfj.Fj3bruary,.2005 by and between JS DEVELOPMENT LLC, the
incorporated The Nursery Owners Association, Inc. and the City of Muskego, ~ursuant
to the authorization by the Common Council from their meeting on the 25t day.of
JÇJrluÇJry, 2005.
BY THE COMMON COUNCI L
Janice Moyer
City Clerk-Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
this 2nd day of February, 2005.
Notary Public, Waukesha County, Wisconsin
My commission expires
THE NURSERY SUBDIVISION STORM WATER MANAGIEMENT PLAN
.
The City of Muskego Storm Water Management Ordinance requires the filing of a
storm water management plan and grading plan. The grading plan including all
hydraulic calculations, together with storm sewer plans and appurtenant storm water
structures, has been filed by the Subdivider's engineer with the City of Muskego. Such
information was utilized by the City of Muskego to evaluate the environmental
characteristics of the area affected by the land development activity in The Nursery
Subdivision, the potential impacts of the development upon the quality and quantity of
storm water discharges, the potential impacts upon water resources and drainage
systems and the effectiveness and acceptability of proposed storm water management
measures in meeting the performance standards set forth in the storm water
ordinance.
The intent of this storm water management plan is to set forth specific storm water
management measures to guide the Subdivider, the City of Muskego and The Nursery
Home Owners Association, Inc. regarding the management of storm water in The
Nursery Subdivision. Storm water management measures shall not be limited to those
expressed in this plan which may be expanded upon by the Wisconsin Department of
Natural Resources, the City of Muskego or any other party having jurisdiction. This
plan shall be broken down into three sections:
. SECTION 1 - DUTIES AND RESPONSIBILITIES OF THE: SUBDIVIDER
The Subdivider shall at its expense:
1. Create the above referenced grading plans, hydraulic calculations, storm sewer,
and drainage plans and after approval of same by the City of Muskego file all
such approved plans with the City.
2. The Subdivider shall improve the sit13 by constructing said grading and storm
water conveyance systems together with all specified erosion control measures
including final stabilization of the site, all in accordance with the Subdivider's
Agreement and approved plans on filE~ with the City.
3. The Subdivider shall construct the storm water retention ponds to be contained
in Outlots in The Nursery. The Subdivider shall as-built thH finish grade of the
ponds and provide the as-built plans to the City and The Nursery Home Owners
Association, Inc. The Subdivider shall also provide a bench mark at the ponds
to be illustrated on the as-built drawin~~s.
.
4. The Subdivider upon completion of the above referenced improvements shall
convey by final plat and deed restrictions the improvements to The Nursery
Home Owners Association, Inc. which shall be responsible for carrying out the
storm water measures on an ongoing basis expressed in this Plan. It is
understood that private ownership and maintenance of the storm water
management improvements, including storm sewers within The Nursery
Subdivision commences outside of City owned rights-of-way. All improvements
contained within the City owned rights-of- way shall be the responsibility of the
City to own and maintain.
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The Nursery Subdivision
Stormwater Management Plan
Page 2
SECTION 2 - DUTIES AND RESPONSIBILITIES OF THE CITY
The City of Muskego and the Department of Natural Resources (DNR) have expended
great effort and expense to remove sediment and rough fish from Big Muskego Lake.
The City and the DNR have established certain requirements for retention ponds and
storm water management within The Nurs>ery Subdivision to minimize flooding and
sediment migration to Big Muskego Lake, adjacent wetlands, and other tributary
properties, to prevent rough fish propagation and reintroduction into Big Muskego
Lake. To assure quality control the City of Muskego is willing to administer an annual
"draw down" of each retention pond that will result in reducing thH depth of the water
during the cold months of the year. This draw down of the depth of the storm water
ponds will freeze-out all fish resulting in a rough fish free ponds thHreby minimizing the
risk of reintroduction of rough fish during flooding conditions into the adjacent Muskego
Drainage Canal #1, navigable stream which is tributary to MuskE~go Lake. The City
shall also administer an annual inspection of the storm water retention ponds to
monitor any build-up of sedimentation on the floor of the ponds.
Under Section 1, the Subdivider shall provide the City with an as.-built drawing of the
ponds after construction together with a bench mark at each pond which data shall
become the basis for measurement of sediment build-up. The costs and expenses for
the City to provide these services shall be entered on the tax roll as a special charge or
special assessment on an equal basis against the residential propHrties located in The
Nursery Subdivision collected with any other taxes levied thereon for the year in which
the work is completed.
Set forth below, is an outline of the City's responsibilities which has been agreed to by
the DNR:
1. City of Muskego shall administer draw down and inspect for sediment build-up.
Draw down of the retention ponds shall occur annually, generally within the first
two weeks of November. Draw down may only occur after determination that
sediment build-up will not be transported through discharge pipes. If sediment
build-up has occurred above the invert elevation of the discharge pipes it must
be removed prior to draw down. Draw down gate valves shall be closed within
one week of commencement of the draw down.
2. Sediment build-up in ponds shall be determined on an annual basis and shall
be recorded in a log. Removal of sediment shall be administered by the
Owners Association according to Section 3.
SECTION 3 - DUTIES AND RESPONSIBILITIES OF THE NURSERY
HOME OWNERS ASSOCIATION, INC.
An incorporated association of the owners of all single family IlOts in The Nursery
Subdivision has been created for the purposes of managing and controlling Common
Areas including the outlots which contain the storm water retention ponds. This
owner's association is formally titled The Nursery Home Owners Association, Inc. and
it is referred to herein as the Association.
The ownership and maintenance including all payment of associated costs for the
storm water retention pond shall be the responsibility of the Association. The
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The Nursery Subdivision
Stormwater Management Plan
Page 3
guidelines set forth below shall not limit additional measures which may from time to
time be mandated by the City, DNR or any other party having jurisdiction:
1. The Association on an annual basis, shall provide maintenance of each storm
water retention pond, including but not limited to, removal of debris,
maintenance of vegetative areas, maintenance of storm water structures,
emergency overflows including rip rap and sediment removal.
2. According to Section 2 the City shall keep an annual log of the depth of
sediment in the floor of the storm water retention ponds. VVhen sediment build-
up reaches 15", the City shall notify the Association to remove the sediment.
The DNR has required that any pumping of sediment laden water by contractors
shall be filtered through a temporary sediment basin appropriately sized prior to
being discharged into the adjacent canal or wetlands.
3. The Association shall be responsible for water quality in the storm water
retention ponds including removal of weeds and algae control.
4. Upon notification to the Association, by the City of Muskego, of maintenance
problems which require correction, the specified corrective actions shall be
taken within a reasonable time frame ,as set by the City of Muskego.
5. The City of Muskego is authorized to perform the corrective actions identified in
the inspection report if the Association does not make the required corrections
in the specified time period. The costs and expenses shall be billed to the
Association, and if unpaid, shall bl9 entered on the tax roll as a special
assessment or special charge on an equal basis against thl3 residential Parcels
in The Nursery Subdivision, collected with any other taxes levied thereon for the
year in which the work is completed.
THIS INSTRUMENT DRAFTED BY JEFF MUENKEL, CITY OF MUSKEGO PLANNING DEPARTMENT
W182 S8200 RACINE AVENUE MUSKEGO WI 53150