CCR2021108-MMSD-GI Maint Covenant (Attachment)1
Green Infrastructure Eleven-Year Maintenance Covenant
for
79 Trees
This Ten-Year Maintenance Covenant (Covenant) is granted by the City of Muskego (Muskego),
W182 S8200 Racine Avenue, Muskego, Wisconsin 53150, to the Milwaukee Metropolitan
Sewerage District (District), 260 West Seeboth Street, Milwaukee, Wisconsin 53204.
INTRODUCTION
1. The Green Infrastructure. The green infrastructure is 79 trees throughout Muskego, as
shown in Exhibits A through J. This green infrastructure will capture and hold stormwater in
place to reduce the quantity and improve the quality of runoff. The green infrastructure has a
total design detention capacity of 1,975 gallons. This Covenant applies only to this green
infrastructure.
2. Baseline Documentation. The condition of the green infrastructure is documented in a
Baseline Report at the office of the District and incorporated into this Covenant by reference.
The Baseline Report consists of reports, maps, photographs, and other documentation and
provides an inventory of relevant features, characteristics, and conservation values. The
Baseline Report provides an accurate representation of the condition of the green
infrastructure at the time of the conveyance of this Covenant. The Baseline Report is an
objective, but not exclusive, reference for monitoring compliance with the terms of this
Covenant.
3. Conservation Intent. Muskego and the District share the common purpose of preserving the
green infrastructure for a period of at least eleven years. Muskego intends to protect the green
infrastructure. In addition, Muskego intends to convey to the District and the District agrees
to accept a right to monitor and enforce these restrictions.
MAINTENANCE COVENANT
In consideration of the facts recited above, Muskego grants and the District accepts a
Maintenance Covenant for a period of eleven years for the green infrastructure. This Covenant
consists of the following terms, rights, and restrictions.
1. Purpose. The purpose of this Covenant is to require Muskego to keep, preserve, and maintain
the green infrastructure, as described above.
2. Effective Dates. This Covenant becomes effective when signed by both Muskego and the District.
This Covenant terminates on December 31, 2032.
3. Operation and Maintenance. Muskego will maintain the green infrastructure so that it
remains functional for the entire term of this Covenant. Muskego is solely responsible for
operation, maintenance and evaluating performance.
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4. Additional Reserved Rights of Muskego. Muskego retains all rights associated with the
green infrastructure, including the right to use it and invite others to use it in any manner that
is not expressly restricted or prohibited by the Covenant or inconsistent with the purpose of
the Covenant. However, Muskego may not exercise these rights in a manner that would
adversely affect the green infrastructure.
Muskego expressly reserves the right to sell, give, bequeath, mortgage, lease or otherwise
encumber or convey the green infrastructure, if:
4.1 The encumbrance or conveyance is subject to the terms of this Covenant.
4.2 Muskego incorporates the terms of this Covenant by reference in any subsequent deed
or other legal instrument by which Muskego transfers any interest in all or part of the
green infrastructure.
4.3 Muskego notifies the District of any conveyance in writing within fifteen days after
the conveyance and provides the District with the name and address of the recipient
of the conveyance and a copy of the legal instrument transferring rights.
4.4 Failure of Muskego to perform any act required in Subparagraphs 4.2 or 4.3 does not
impair the validity of this Covenant or limit its enforceability in any way.
5. District Rights and Remedies. To accomplish the purpose of this Covenant, Muskego
expressly conveys to the District the following rights and remedies:
5.1 Preserve Conservation Values. The District has the right to preserve and protect the
green infrastructure.
5.2 Prevent Inconsistent Uses. The District has the right to prevent any activity or use of
the green infrastructure that is inconsistent with the purpose of this Covenant and to
require the restoration of areas or features of the green infrastructure that are damaged
by any inconsistent activity or use, pursuant to the remedies set forth below.
5.3 Inspection. The District has the right to: inspect and monitor compliance with the
terms of this Covenant; obtain evidence for use in seeking judicial or other
enforcement of the Covenant; and otherwise exercise its rights under the Covenant.
The District will: provide prior notice to Muskego before inspecting the green
infrastructure, comply with the safety rules of Muskego, and avoid unreasonable
disruption of the activities Muskego.
6. Remedies for Violations. The District has the right to enforce the terms of this Covenant and
prevent or remedy violations through appropriate legal proceedings.
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6.1 Notice of Problems. If the District identifies problems with the green infrastructure,
then the District will initially attempt to resolve the problems collaboratively. The
District will notify Muskego of the problems and request remedial action within a
reasonable time.
6.2 Notice of Violation and Corrective Action. If the District determines that a violation
of the terms of this Covenant has occurred or is threatened, then the District will give
written notice of the violation or threatened violation and allow at least thirty (30)
days to correct the violation. If Muskego fails to respond, then the District may
initiate judicial action. The requirement for an initial notice of violation does not
apply if, in the discretion of the District, immediate judicial action is necessary to
prevent or mitigate significant damage to the green infrastructure or if good faith
efforts to notify Muskego are unsuccessful.
6.3 Remedies. When enforcing this Covenant, the remedies available to the District
include: temporary or permanent injunctive relief for any violation or threatened
violation of the Covenant, the right to require restoration of the green infrastructure to
its condition at the time of the conveyance of this Covenant, specific performance,
declaratory relief, and recovery of damages resulting from a violation of the Covenant
or injury to the green infrastructure.
6.4 Non-Waiver. A delay or prior failure of the District to discover a violation or initiate
enforcement proceedings does not waive or forfeit the right to take any action
necessary to assure compliance with the terms of this Covenant.
6.5 Waiver of Certain Defenses. Muskego waives any defense of laches, such as failure
by the District to enforce any term of the Covenant, and estoppel, such as a
contradictory statement or action by the District.
6.6 Acts Beyond the Control of Muskego. The District may not bring any action against
Muskego for any injury or change in the green infrastructure resulting from causes
beyond the control of Muskego, including, but not limited to, natural disasters such as
fire, flood, storm, natural earth movement and natural deterioration, or prudent
actions taken by Muskego under emergency conditions to prevent or mitigate damage
from such causes, provided that Muskego notifies the District of any occurrence that
has adversely affected or interfered with the purpose of this Covenant.
7. Amendment. At any time, Muskego and the District may jointly amend this Covenant in a
written instrument executed by both parties. However, no amendment will be allowed if, in
the judgment of the District, it:
7.1 diminishes the green infrastructure,
7.2 is inconsistent with the purpose of the Covenant,
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7.3 affects the duration of the Covenant, or
7.4 affects the validity of the Covenant.
8. Assignment. The District may convey, assign, or transfer its interests in this Covenant to a
unit of federal, state, or local government or to an organization that is qualified within the
meaning of Section 170(h)(3) of the Internal Revenue Code and in the related regulations or
any successor provisions then applicable. As a condition of any assignment or transfer, any
future holder of this Covenant is required to carry out its purpose for the remainder of its term.
The District will notify Muskego of any assignment at least thirty (30) days before the date of
such assignment. However, failure to give such notice does not affect the validity of
assignment or limit its enforceability in any way.
9. Captions. The captions in this Covenant have been inserted solely for convenience of
reference and are not part of the Covenant and have no effect on construction or interpretation.
10. Controlling Law and Liberal Construction. The laws of the State of Wisconsin govern the
interpretation and performance of this Covenant. Ambiguities in this Covenant will be
construed in a manner that best effectuates the purpose of the Covenant and protection of the
green infrastructure.
11. Counterparts. Muskego and the District may execute this Covenant in two or more
counterparts, which will, in the aggregate, be signed by both parties. Each counterpart is an
original document.
12. Entire Agreement. This Covenant sets forth the entire agreement between Muskego and the
District with respect to this Covenant and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Covenant.
13. Extinguishment. This Covenant may be terminated or extinguished before the expiration of
its term, in whole or in part, only through judicial proceedings in a court of competent
jurisdiction. Furthermore, the Covenant may be extinguished only if Muskego and the
District agree that a subsequent unexpected change in the condition of or surrounding the
green infrastructure makes accomplishing the purpose of the Covenant impossible.
14. Ownership Responsibilities, Costs, and Liabilities. Muskego retains all responsibilities
and will bear all costs and liabilities related to the ownership of the green infrastructure,
including, but not limited to, the following:
14.1 Operation, upkeep, and maintenance. Muskego is responsible for the operation,
upkeep, and maintenance of the green infrastructure.
14.2 Control. In the absence of a judicial decree, nothing in this Covenant establishes
any right or ability in the District to:
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a. exercise physical or managerial control over the day-to-day operations of the
green infrastructure;
b. become involved in the management decisions of Muskego regarding the
generation, handling, or disposal of hazardous substances; or
c. otherwise become an operator of the green infrastructure within the meaning of
the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (“CERCLA”), or similar laws imposing legal liability on
the owner or operator of the green infrastructure.
14.3 Permits. Muskego is solely responsible for obtaining applicable government permits
and approvals for any construction or other activity or use permitted by this
Covenant. During construction or any other activity, Muskego will comply with all
applicable federal, state, and local laws, regulations, and requirements.
14.4 Indemnification. Muskego releases and will hold harmless, indemnify and defend
the District 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, judgments or administrative actions, including, without limitation,
reasonable attorney fees, arising from or in any way connected with:
a. injury to or the death of any person, or physical damage to the green
infrastructure resulting from any act, omission, condition, or other matter
related to or occurring on or about the green infrastructure, regardless of cause,
unless due solely to the negligence of any of the Indemnified Parties;
b. the violation or alleged violation of, or other failure to comply with, any state,
federal or local law, regulation, including without limitation, CERCLA, by any
person other than the Indemnified Parties, in any way affecting, involving, or
related to the green infrastructure; or
c. the presence or release in, on, from, or about the green infrastructure, at any
time, of any substance now or hereafter defined, listed, or otherwise classified
pursuant to any federal, state, or local law, regulation, or requirement as
hazardous, toxic, polluting, or otherwise contaminating to the air, water, or
soil, or in any way harmful or threatening to human health or the environment,
unless caused solely by any of the Indemnified Parties.
Nothing in this agreement is intended to be a waiver or estoppel of Muskego or its
insurer to rely upon the limitations, defenses, and immunities contained within
Wisconsin law, including those contained within Wisconsin Statues, secs. 893.80,
895.52, and 345.05. To the extent that indemnification is available and enforceable,
Muskego or its insurer will not be liable in indemnity or contribution for an amount
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greater than the limits of liability for municipal claims established by Wisconsin
Law.
15. Severability. If any provision or specific application of this Covenant is found to be invalid
by a court of competent jurisdiction, then the remaining provisions or specific applications of
this Covenant will remain valid and binding.
16. Successors. This Covenant is binding upon and inures to the benefit of Muskego and the
District and their respective personal representatives, heirs, successors and assigns and will
continue as a servitude running with the green infrastructure for the term of the Covenant.
17. Terms. Wherever used in this Covenant, the terms "Muskego" and "District" include the
respective personal representatives, heirs, successors, and assigns of Muskego and the
District.
MILWAUKEE METROPOLITAN
SEWERAGE DISTRICT
CITY OF MUSKEGO
By:
Kevin L. Shafer, P.E.
Executive Director
By:
Richard Petfalski, JR.
Mayor
Date: ______________________________ Date: ______________________________
Approved as to Form
By:
Attorney for the District
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Exhibit A
Idle Isle Park (Six Trees)
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Exhibit B
Kurth Park (Seven Trees)
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Exhibit C
Manchester Park (Four Trees)
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Exhibit D
Park Arthur (Twenty Trees)
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Exhibit E
Sandhill Park (Thirteen Trees)
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Exhibit F
Janesville Road from Lions Park Drive to Michi Drive (Thirteen Trees)
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Exhibit G
Janesville Road at Library (Eleven Trees)
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Exhibit H
Janesville Road from Bay Lane to Moorland Road (Four Trees)
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Exhibit I
Janesville Road at Poes Place (Two Trees)
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Exhibit J
Old Village Hall (One Tree)