ORDINANCE #204

AN ORDINANCE APPROVED UPON DETERMINATION OF THE COURT AND JUDGMENT THAT IT REPRESENTS

BETWEEN ALGOMA TOWNSHIP AND EASTBROOK COMPANIES THAT WILL AMEND THE ZONING ORDINANCE

OF THE TOWNSHIP OF ALGOMA

Site Condominium Planned Unit Development Project located on Edgerton A venue Site Plan #0004

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EASTBROOK DEVELOPMENT COMPANY, Case No. 4:01-CV-10-g

and M.A.M. INVESTMENTS, LLC, HON. DAVID W. McKEAGUE

Plaintiffs, CONSENT JUDGMENT

v

ALGOMA TOWNSHIP,

Defendant. _________________________________/

William A. Hom (P-33855) Teresa S. Decker (P-32114) Randall W. Kraker (P-27776) Varnum, Riddering, Schmidt & HowlettLLP Attorneys for Plaintiffs

0 Mika, Meyers, Beckett & Jones, PLC Co-Counsel for Defendant 900 Monroe Avenue, N.W.

333 Bridge Street, N.W. P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000

MichaelS. Bogren (P-34835) Plunkett & Cooney, P.C. Attorneys for Defendant 535 South Burdick, Suite 256 Kalamazoo, MI 49007 (616) 382-5935

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Grand Rapids, MI 49503 (616) 632-8000

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At a session of said Court held in the City of Lansing, Michigan this_ day of , 2002.

PRESENT: HONORABLE DAVID W. McKEAGUE U.S. District Court Judge

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Based upon the stipulation of the parties as evidenced by the signatures of their counsel

below, and the determination of the Court that this Judgment represents a reasonable resolution

of the pending dispute between the parties, IT IS ORDERED AND ADJUGED as follows:

Section 1. Development of Project. The property which Plaintiffs propose to

develop, the legal description of which is contained in Exhibit A to this Judgment (the

"Property"), may be developed as a single family detached residential housing community

Planned Unit Development (hereafter "the Development") in accordance with the terms of this

Judgment and in substantial conformity with the preliminary design plan and preliminary

pedestrian plan both having a revision date of February 6, 2002 attached hereto as Exhibit B

("the Plan"), except insofar as the Plan may be modified during the process of final site

development plan approval by the Township Board in accordance with Section 19 of this

Consent Judgn1ent. After obtaining approval from the Township Board, Plaintiffs may modify

the Plan to redesign the driveway into the Development from Edgerton A venue so as to create a

unified site of approximately 8-12 acres adjacent to Edgerton Avenue, which site may be

transferred, after obtaining approval from the Township Board, to a public school district for use

as a public school. If a public school district is not interested in such transfer, then the site may

be transferred, after obtaining approval from the Township Board, to another public or non-profit

entity for a use which preserves open space and provides a public benefit. Such approvals shall

be within the reasonable discretion of the Township Board. Any redesign of the driveway into

the Development shall provide for a 16-foot emergency access route from the Development to

Edgerton A venue.

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Section 2. Phasing.

(a) The Development may be constructed in phases. Changes in sales or

market conditions will dictate the phasing and changes in phasing are permitted. Prior to

commencing construction of a phase, Plaintiffs shall indicate to the Township Board the

parameters of that phase.

(b) Prior to the issuance of a building permit for a unit in a development

phase, the streets, water and sewer systems and the construction of common

improvements in that phase shall be completed and approved, or a performance guarantee

which complies with township ordinance shall be furnished by the Plaintiffs. However,

prior to the issuance of a certificate of occupancy for a unit, the water and sanitary sewer

systems shall be completed and approved and shall be extended to that unit and

connected. A performance guarantee may not be provided in lieu of such completion and

approval of the water and sewer systems; provided, however, that up to three model

homes may be completed, solely for the purpose of dealing with potential home buyers,

and not for the purpose of the sale of such model homes, without the providing of a

performance guarantee, but such guarantee shall be provided in all other circumstances,

as noted above, including the sale of any such model home.

Section 3. Fire Facilities. Plaintiffs will donate the sum of $50,000 to Defendant

within ninety (90) days of the date of the initial building permit for the construction of a single

family home on the Property. Such funds will be used by Defendant only for fire protection

within the Township, which may include the Township's donation of these funds to the Algoma

Township Fire Capital Fund.

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Section 4.

following features:

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Design Characteristics. The Development shall incorporate the

(a) The Development shall be constructed as a site condominium and

have not more than 230 residential units of one single family detached dwelling each.

Each unit shall have the area shown on the Plan and shall be located as shown on the

Plan. The minimum unit width shall be as shown on the Plan. The minimum setbacks

shall be as follows:

Front yard- 30 feet

Side Yard (not along street right-of-way) - 10 feet

Side Yard (along street right-of-way)- 25 feet

Rear yard - 3 0 feet

Lots fronting on cul-de-sacs shall have a front yard setback of 30 feet from

street right-of-way and shall have a width of not less than 80 feet, as measured at the 30-

foot front yard setback line, except that the two most southerly lots abutting the cul-de-

sac that is immediately west of the water system parcel abutting Edgerton Avenue (such

cul-de-sac being the most southeasterly cul-de-sac in the Development) may each have a

minimum lot width of 70 feet, as measured at the 30-foot front yard setback line. That

pmi of a lot fronting on a cul-de-sac that has less than the required minimum width may

be included when measuring the depth of the front yard setback.

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(b) Internal traffic circulation throughout the Development shall be by means

of private streets to be constructed by Plaintiffs and located as shown on the Plan. The

private streets shall comply with all Township requirements for private streets, except as

modified by this Judgment. The right-of-way shall have a width of 66 feet, the travel

width of the streets shall be 24 feet (26 feet if storm water drainage is included with

valley gutters), and each street shall be paved with bituminous pavement and a sufficient

aggregate base. The street grade shall not exceed 8%, except that a 10% grade may be

allowed on two locations on the site located in the southwest quadrant of the

Development to allow the preservation of existing slopes and mature trees. The private

streets shown on the Plan may extend for the distances from Edgerton A venue as shown

on the Plan, in view of the topography of the land, the location of the wetland areas and

for other reasons arising because of the nature of the land and its physical constraints. An

easement shall be provided for a future street connection immediately to the south, in the

southwesterly portion of the Development, as shown on the Plan.

(c) The private streets shall be maintained, repaired, replaced and

snowplowed so as to afford continuous access and unimpeded passage for vehicles

(including emergency vehicles) under all weather conditions. The Master Deed and

Condominium Bylaws shall have provisions requiring maintenance of the streets in

accordance with this Judgment and the other provisions of the Township ordinances

pertaining to public streets.

(d) The private streets shall have names approved by the Kent County Road

Commission.

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(e) All utility service within the Development shall be by means of

underground facilities. The Master Deed shall reserve easements for future private and

public utility service, including water and sewer, within the private road right-of-way and

within 10 feet on both sides thereof.

(f) All dwellings shall be built upon a full basement and foundation.

Dwellings shall have minimum building floor areas as follows:

(i) Each ranch-style dwelling shall have a m1mmum floor area of

1,350 square feet on one level, excluding any attached garage.

(ii) Each split-level dwelling shall have a minimum floor area of 1,250

square feet on the main level and the upper levels.

(iii) Each two-story dwelling shall have a minimum floor area of 1,400

square feet, with not less than 7 40 square feet on the first floor.

(g) One sign identifying the Development may be located at the entrance to

the Development off Edgerton Avenue. The sign may be illuminated and shall not be

larger than 36 square feet and shall not be higher than 6 feet. Such sign shall, however,

be subject to the further approval by the Township Building Inspector as to placement

and other features thereof in accordance with the Township sign ordinance. Additionally,

one temporary sign pertaining to the sale of the premises upon which it is placed may be

allowed provided it does not exceed 32 square feet in total area.

(h) All dwellings in the Development shall be numbered in reasonable

numerical order, so as to promote ease oflocating dwellings within the Development.

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(i) All matters required by law as being subject to Michigan Department of

Environmental Quality (DEQ) approval shall be submitted to the DEQ and all required

pennits or approvals shall be obtained, including approvals pertaining to any changes in

or impacts on the wetland areas which may require petmitting or other authorization

under state law or regulations.

Section 5. Private Wastewater Facility.

(a) Plaintiffs will construct at their expense, in accordance with applicable

standards of the Michigan Depmiment of Environmental Quality, a conmmnity

wastewater treatment facility with adequate capacity to serve the Development. Such

facility shall exceed minimal standards and shall be designed, constructed, operated and

maintained in accordance with applicable local, state and federal laws and regulations

and to minimize any discharges of contaminants to the environment. Plaintiffs will

provide to Defendant such design and construction plans as are submitted to the

Michigan Department of Enviromnental Quality with regard to the wastewater treatment

facility, and such plans will be submitted to the Township Engineer for review and

comment. The Township may provide such comments to the regulatory agency as it, in

good faith, believes are appropriate. There shall be no direct discharge from the

wastewater treatment facility into the Rogue River.

(b) Plaintiffs and the Township may enter into an agreement whereby the

Township agrees to assure the proper operation of the system, should the private parties

responsible for the same fail to do so; provided, however, that such agreement shall

assure, as reasonably detennined by the Township Board, that the Township shall bear no

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cost associated with respect to such undertaking. Prior to entering into any such

agreement, the Township Board shall be satisfied, in its reasonable discretion, with the

proposed community wastewater treatment facility and proposed discharge method and

levels, that such undertaking is not contrary to the public interest, and that an agreement

satisfactory to the Township Board has been reached with the Plaintiffs with respect to

such undertaking.

(c) The Master Deed and Condominium Bylaws shall contain provisions for

proper continued operation of the system, and such other conditions as are separately

required by the Township Board with respect to any undertaking to agree to assume

operation and responsibility for the system. Such provisions shall include, among other

matters, provisions constituting a petition and authorization for the Township to levy

special assessments on benefited units for repair, maintenance and replacement of the

system, should the Township or another governmental entity undertake responsibility for

the system where permitted or required by law. Any such undertaking of ownership

and/or operational responsibility for the system shall be canied out only in such a manner

that no cost to the Township results, and accordingly, any agreement between the

Township and the Plaintiffs on the matter shall include, among other provisions, such

letter of credit or performance bond provisions that shall be sufficient to assure that the

Township shall bear no cost associated with the operation, repair or replacement of the

system or any part thereof. The Township Board shall be satisfied, in its reasonable

discretion, with the terms and provisions of any such proposed letter of credit or

performance bond.

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Section 6. Water Supply Facility.

(a) Plaintiffs will construct at their expense, in accordance with applicable

standards of the Michigan Department of Environmental Quality, a private water supply

facility with adequate capacity to serve the Development. Such facility shall be designed,

constructed, operated and maintained in accordance with applicable local, state and

federal laws and regulations. Plaintiffs will provide to Defendant such design and

construction plans as are submitted to the Michigan Department of Environmental

Quality with regard to its private water supply facility, and such plans will be submitted

to the Township Engineer for review and comment. The Township may provide such

comments to the regulatory agency as it, in good faith, believes are appropriate. As a pati

of establishment of the privately-owned public water supply system, Plaintiffs shall enter

into an agreement with the Township specifying the terms under which the Township

may elect to assume ownership and operation of the system, should the same be

necessary in the reasonable judgn1ent of the Township Board. Such agreement shall be

satisfactory in form and content to the Township Board. The Township Board is not

required to approve the proposed water supply system or enter into such an agreement

until the Board is satisfied in its reasonable discretion with regard to all matters

pertaining to the legal establishment and operation of the system. Plaintiffs will execute

reasonable well protection agreements with Defendant with regard to existing water wells

on adjacent property in accordance with the outlined well protection agreement process

attached as Exhibit C to this Consent Judgment. The water supply system shall be

designed to facilitate connection to a public water system.

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(b) The Master Deed or Condominium Bylaws shall contain provisions for

operation of the system, and provisions constituting a petition and authorization for the

Township to levy special assessments on benefited units for repair, maintenance, and

replacement of the system should the Township or another governmental entity ever take

responsibility for the system. Any such undertaking of ownership and/or operational

responsibility for the system shall be carried out only in such a manner that no cost to the

Township results, and accordingly, any agreement between the Township and the

Plaintiffs on the matter shall include, among other provisions, such letter of credit or

performance bond provisions that shall be sufficient to assure that the Township shall

bear no cost associated with the operation, repair or replacement of the system or any pmt

thereof. The Township Board shall be satisfied, in its reasonable discretion, with the

terms and provisions of any such proposed letter of credit or performance bond.

(c) All aspects of the water supply system, including the installation and

operation of the water supply wells, shall have no serious adverse effect upon adjacent or

nearby lands, nor shall the drilling and operation of the water supply wells used in the

water system have any serious adverse effects on existing water wells in the vicinity or

the availability of water supply for such existing wells. Any such serious adverse effects

shall be a violation ofthis Judgment.

(d) The water supply system shall include the installation and maintenance of

valves and other necessary appurtenances of the water system that will enable the

Township fire department to conveniently cmmect its equipment to the water system for

purposes of fire suppression within the Development. The location and nature of such

fire protection measures, and the number and location of connection points, shall be

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subject to the approval of the Township Fire Chief, which approval shall not be

unreasonably withheld.

Section 7. Stormwater Drainage Facility.

(a) Plaintiffs will construct at their expense, in accordance with applicable

standards of the Michigan Department of Environmental Quality and that version of the

Kent County Drain Commission Stormwater Management Task Force Model Stormwater

Ordinance now being considered by the Township and as finally adopted by and then in

effect in the Township, stonnwater drainage, detention and treatment facilities with

adequate capacity to serve the Development. Subject to continued compliance with

Michigan Department of Environmental Quality standards, the parties hereto may by

mutual agreement modify the provisions of the above described Model Ordinance if such

modification would better serve the goals of this paragraph. Such facilities shall be

constructed, designed, operated and maintained in accordance with applicable local, state

and federal laws and regulations. The stormwater drainage plan and system shall be

subject to the approval of the Township Engineer, which approval shall be within the

reasonable discretion of the Township Engineer. The facilities shall have no serious

adverse effect upon adjacent or nearby wetlands, lands or surface waters, or upon

wetlands, lands or surface waters within the Development, by reason of erosion,

pollution, flooding, or otherwise. Any such serious adverse effect shall be a violation of

this Judgment. Plaintiffs will provide to Defendant such design and construction plans as

are submitted to the Kent County Drain Commission with regard to its stormwater

drainage, detention and treatment facilities, and such plans will be submitted to the

Township Engineer for review and comment. The Township may provide such

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comments to the regulatory agency as it, in good faith, believes are appropriate. The

response of the Kent County Drain Commission to the application, including any review

letter or other comment or information provided by the Drain Commissioner shall be

promptly submitted to the Township for its review. Any response on the part of the

Drain Commissioner shall be submitted by the Township to the Township Engineer for

review and comment. As a result, the Township Engineer may make further reasonable

requirements with respect to the stonnwater drainage system, and in that event, the

Plaintiffs shall comply with the same.

(b) The Condominium Master Deed and Bylaws shall required that all

facilities for storm water management be regularly maintained in properly functioning

condition.

(c) So as to help avoid the adverse effects of undue amounts of nutrients

which may affect the groundwater and other aspects of the lands, the site condominium

documents shall specify that only non-phosphorus fe11ilizers may be used on any lands

within the Development.

Section 8. Intersection Improvements. Plaintiffs will commission and pay for a

traffic study by Wade/Trim, traffic engineers, which will assess the impact of the Development

on the intersection of 11 Mile Road and Algoma A venue. The traffic study shall be completed

and a copy provided to the Township prior to the start of any construction activities on the

propeliy. If the traffic study indicates that improvements (which may include a traffic signal) are

required due to the Development and such improvements are constructed by the Kent County

Road Commission, Plaintiffs will pay 50% of the Township's share of the cost of such

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·improvements. If the Township will not bear any cost of such improvements, Plaintiffs will pay

25% of the cost of such improvements to the governmental entity undertaking the improvements.

Section 9. Soil Erosion and Sedimentation Control; Site Grading. In the

construction and use of the Development, Plaintiffs shall comply in all respects with any

required soil erosion and sedimentation pe1mit. A copy thereof shall be submitted to the

Township. Soil erosion protection and stabilization techniques and procedures shall be provided

continuously during all phases of the construction, until lawns and other landscaped areas are

established. All aspects of site construction and grading shall have no serious adverse effect

upon the Rogue River, any wetlands or adjacent or nearby lands. Any such serious adverse

effect shall be a violation of this Judgment.

Section 10. Wetlands. Any portion of the Development which are wetlands or which

have been designated as wetlands under applicable Michigan law shall not be filled, dredged or

developed to any extent without the approval of the Department of Environmental Quality, by

means of such permits as may be required by law. The design, layout and construction of the

Development shall be carried out only in such a manner as to have no serious adverse effect on

the quality and the waters of any wetland areas. Any such serious adverse effect shall be a

violation of this Judgment.

Section 11. Indemnification Agreement. Plaintiffs will enter into an agreement to

hold harmless and release Defendant from any potential liability related to design, construction,

operation and maintenance of wastewater, drinking water, stormwater facilities, and soil erosion

and sedimentation protection and stabilization techniques or procedures to be constructed by

Plaintiffs pursuant to this Judgment.

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Section 12. Approvals. In a timely fashion, Defendant will provide such reviews and

will issue any and all permits necessary for the construction and occupancy of the Development

which are within its authority to issue and to which Plaintiffs are reasonably entitled, and will not

interfere with Plaintiffs in obtaining any other governmental approvals required for the

Development. Notwithstanding the above, Defendant and its consultants shall be entitled to

make reasonable, good faith, pertinent comments and participate in the review process with

regard to the private wastewater, water supply, stormwater facilities and road improvements

proposed by Plaintiffs to the governmental agencies charged with approving such facilities in

accordance with paragraphs 5, 6, 7 and 8 hereof.

Section 13. Lighting. The Development will utilize low impact Consumers Energy

lighting of such design and height as to minimize the splashing and glare of light into the sky.

Such street lighting shall be installed at the expense of the Plaintiffs and shall have its cost of

operation paid by unit owners. Any other lighting within the Development will comply with the

Township's outdoor lighting ordinance. Plaintiffs will submit a proposed lighting plan to the

Township Board for review and approval, which approval shall be within the reasonable

discretion of the Township Board. The Township will establish a street lighting special

assessment district which will assess the unit owners for the continuing operational costs of street

lighting. Plaintiffs will pay the Township for the Township's reasonable costs of establishing a

street lighting special assessment district.

Section 14. Trespass. The Master Deed or Condominium Bylaws shall contain a

provision which admonishes unit owners to respect the property rights of others with regard to

property which is not a part of the Development.

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Section 15. Open Space Area.

(a) Within those areas designated as open space (including areas designated as

green space, natural area or park and recreation area) on the Plan, no buildings, structures

or other improvements shall be constructed, nor shall trees or vegetation be removed,

except to construct the natural walking or non-motorized riding paths, trail

improvements, gazebos, playground areas, structures to support recreational activities,

roads, utility services and stormwater drainage or grading measures necessary for the use

of or for the gaining of access to natural areas within the Development, as shown on the

Plan; provided, however, that small-scale structures, solely for the enclosing of utility

system equipment and for the storage of maintenance equipment for recreation areas may

be pennitted, if such enclosing structures are necessary for the feasible operation of

utility systems or for the maintenance of recreation areas and for no other purposes. Any

change to the sanitary sewer and water system isolation areas required by the Depatiment

of Environmental Quality or other agency having jurisdiction shall be submitted to the

Township Board for review and approval which approval shall be within the reasonable

discretion of the Township Board. The Condominium Master Deed and Bylaws shall

contain provisions preserving these areas as open space in perpetuity, and requiring that

the walking path be maintained in a usable condition.

(b) Playground areas, as shown on the Plan, shall include customary

playground equipment, picnic tables and similar equipment as shown on the Plan.

(c) The sanitary sewer and water system isolation areas shall be as shown on

the Plan or as may be required by the Department of Enviromnental Quality or other

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agency having jurisdiction. The Condominium Master Deed and Bylaws shall contain

provisions matching the restrictions imposed by the DEQ and other appropriate

restrictions upon those units which lie partially in the isolation areas.

(d) Provisions for the perpetual maintenance of the open space and other

natural areas within the Development shall be included in the Master Deed and Bylaws or

in separate restrictive covenants. Such instruments shall be subject to the approval of the

Township Attorney prior to recording.

(e) Inasmuch as the open space area, as shown in the Plan, is an essential part

of the Development as authorized by this Judgment, the open space area or any part

thereof, except for the 8-12 acre parcel refened to in Section 1, shall not be conveyed,

leased or otherwise transferred, assigned or encumbered separately from the balance of

the Development, and the ownership thereof shall continue to be vested in the Developer

or the Condominium Association, following the transfer of the general and limited

common elements and other aspects of the Development to the Association. Any such

conveyance, transfer or encumbrance of the open space area shall be a violation of this

Judgment, but the provisions of this subparagraph shall not prohibit agreements between

the Plaintiffs and/or the condominium association , with others, for the mutual use of

open space area within the Development for outdoor recreational purposes only. The

condominium documents establishing the open space area, and providing for the

pennitted uses therein, shall include provisions prohibiting the conveyance or other

transfer ofthe open space area as specified in this subparagraph. Such provisions shall be

subject to approval by the Township Attorney, before the recording of the condominium

documents.

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Section 16. Sidewalks. Sidewalks shall be installed as indicated on the Pedestrian

Circulation Plan, which shall be considered to be part of the Plan. The sidewalks shall be shown

on the street construction plans. A midblock sidewalk to the park and recreation areas, as shown

on the Plan, shall be provided. Sidewalks shall be constructed by each unit owner prior to

issuance of a certificate of occupancy for the dwelling constructed on each unit; provided,

however, that if because of inclement weather, a sidewalk cannot be constructed at the time the

dwelling is ready for a certificate of occupancy to be issued, then the certificate may nevetiheless

be issued, but the sidewalk shall be installed and completed as soon as weather permits, but in

any event not later than six months after issuance of the certificate of occupancy. The

Condominium Master Deed or Bylaws shall contain provisions requiring such sidewalk

construction by the unit owner.

Section 17. Sales Offices. Up to three single-family dwellings with garages finished

as sales offices may be used as temporary sales offices by the Plaintiffs for providing

information and soliciting sales of properties within the Development. Each such sales office

shall be located in a model home. Such offices may be located and relocated at the Developer's

discretion, except that only three such offices shall be in use at any time and no more than three

model homes (including any model homes authorized by Section 2(b) of this Judgment) shall

exist at any time. A dwelling in which the office is located shall in all respects have the

appearance of a single family dwelling, except that a sign of not more than 12 square feet

identifying the development and sales office may be placed on the propetiy, and removed when

the property is no longer being used for a sales office.

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Section 18. Approval of Site Condominium; Master Deed and Bylaws. The

Township Board hereby approves the Edgerton Site Condominium and the Plan for the

Development, subject to the tenns and conditions of this Judgment.

As to any requirements required herein to be included in the Master Deed and/or

Condominium Bylaws, such instruments shall specifically list such requirements and shall

provide that the same shall not thereafter be amended or deleted without the written approval of

the Township Board. Such provisions shall be reviewed by the Township Attomey before

recording, so as to verify their compliance with this subparagraph and this Judgment.

There shall be no provisions of the Master Deed or Condominium Bylaws which are

contrary to or at variance with the provisions of this Judgment or which would in any way hinder

the enforcement of this Judgment. To the extent that any such Master Deed or Condominium

Bylaw provisions may be contrary to or at variance with any of the provisions of this Judgment,

the same shall be applicable only to the extent permitted by the terms hereof.

Section 19. Final Review. Prior to commencement of construction of the

Development, or any part thereof, Plaintiffs shall submit all applicable plans and documents to

the Township Board for a final review to detennine compliance with this Judgment. In addition

to all information necessary to show compliance with the terms of this judgment and applicable

laws, rules, regulations and Township ordinances, the plans and documents shall include the

location of proposed water and sewer lines, stop signs and other traffic signs in the Development,

preliminary architectural sketches and/or a general statement as to the type of construction and

materials to be used in the proposed buildings or structures, the height and area of buildings and

structures, and a schedule of development and project staging.

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Section 20. Consultant Review Fees. Plaintiffs agree to reimburse the Defendant

within thirty (30) days of invoice, for the Defendant's actual fees and costs for services rendered

by the Defendant's engineer, attorney or planning consultant relative to the review of plans and

documents submitted for review under the tem1s of this Judgment. The Defendant shall cause

such charges to be reasonable and in amounts per hour equal to the nom1al billing rates normally

charged to the Defendant for the Defendant's work. Requests for payment or reimbursement

shall include itemized billings.

Section 21. Underlying Zoning. Except as modified herein, or pursuant to Section

19 above, the requirements of the R-A zoning district or any successor underlying dist1ict shall

apply to the Development.

Section 22. Enforcement. The Township may enforce the prov1s10ns of this

Judgment and applicable provisions of the Township Zoning Ordinance, Building Code and

other ordinances, laws and regulations to the extent and in the manner provided by law. In the

event the Plaintiffs shall fail to carry out, either at all or on a timely basis, any provisions or

requirement of this Judgment, other applicable law, ordinance or regulation, or any permit issued

for the Development, the Township may through its Building Inspector or other Township

agency issue and post a stop work order at the site of any improper or noncomplying part of the

Development, directing that all further construction of such part of the Development be ceased

forthwith, pending the compliance with any applicable provision of this Judgment, other

applicable law, ordinance or regulation or issued permit. Upon the issuance of such stop work

order, the Plaintiffs shall comply fully therewith without delay. Upon the correction and

restoration of any matters as to which the stop work order was issued, the Township shall

promptly rescind and remove the stop work order, whereupon the Plaintiffs may again proceed

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with the construction or other petmissible activity as to the Development. The issuance and

posting of any stop work order shall not be an exclusive remedy, but may be undertaken by the

Township in addition to all other lawful means of enforcement. Should any other governmental

body or agency issuing a permit for the Development notify Plaintiffs that a violation of the

petmit has occurred, Plaintiffs shall immediately notify the Township Supervisor of this event.

Any violation of a permit issued by any other governmental body shall be deemed a violation of

this Judgment. Should Plaintiffs' activities result in any serious adverse effect as is prohibited by

Sections 6(c), 7(a), 9, and 10, the Township is entitled to seek an order from this Comi for the

correction and restoration of such matters and the Township will be entitled to recover its

reasonable attorney fees and expert fees as are incurred with regard to such action.

Section 23. Modification of Judgment. In the event that the provisions of this

Judgment require modification to meet the lawful requirements of any other governmental

agency, Defendant will not unreasonably withhold consent to such modification, and an

amendment to this Judgment may be entered incorporating any such modification.

Section 24. Cooperation. The parties will deal with one another in good faith, and in

a timely matmer, and will neither take nor omit any action, by themselves or in concert with

others, which will interfere with carrying out the terms of this Judgment.

Section 25. Other Documents. The parties agree to execute in a timely manner, any

and all documents and/or enter into agreements as are necessary or convenient to carry out the

intent of this Judgment.

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Section 26. Written Changes. The terms of this Judgment may be amended,

changed, or modified, only by written agreement, unless otherwise specified herein. No waiver

of any provision of this Judgment shall be valid unless in writing.

Section 27. Binding Effect. This Judgment shall be binding upon, and shall inure to

the benefit of the parties hereto and their heirs, personal representatives, successors and assigns.

Section 28. Covenants. This Judgment is declared to be in recordable form and the

covenants contained herein are declared to be covenants running with the land and the Kent

County Register of Deeds is hereby ordered to record a true copy of this Judgment.

Section 29. Dismissal. Plaintiffs' claims, including those for damages, attorney fees

and costs, are hereby dismissed with prejudice; provided, however, that the Court will retain

continuing jurisdiction of this matter to ensure compliance with this Judgment.

Section 30. Attorneys Fees and Release. Neither party shall pay to the other any

costs or attorneys' fees attributable to this case and this Judgment shall constitute a mutual

release of all such claims by all parties in this case.

Section 31. Authorization. The persons executing this Judgment have represented to the

Court and the other parties that they have full and complete authority to consent to the terms of

this Judgment on behalf of their respective parties.

U.S. District Court Judge

21 By __ ~~~~~~~--~

Deputy C!er · U . S . District Courr

Western Oist. of Michigan

Date MAR ? 6 ;QQ(

(

APPz==ANCE: Teresa S. Decker (P32114) Randall W. Kraker (P27776) Varnum, Riddering, Schmidt & Howlett, LLP Attorneys for Plaintiffs

::ODMA\PCDOCS\GRR\654656\6 22

. ~HE R 6 I ? L~ P6 I 3 9 4

Wifi?am A. Horn (P33855) Mika, Meyers, Beckett & Jones, PLC Attorneys for Defendant

EXHIBIT A

Description: That part of Section 27, T9N. R11W, Alscrna ToV\'("Jship, Kent County, Michigan. described as:

Commencii"!Q at the NE comer of said sectloh 27; thence N89°33'17•w 1331.37 feet along the North line, NE 1/4 to the NW OO!'llet, E 112. NS 1/4; thence S00°44'08JW 600.24 feet alotig the West line, E 112, NE 1/4 to the PLACE OF BEGINNING of thiS de50I!Pti

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EXHIBIT ---=t=---OUTLINE OF WELL PROTECTION AGREEMENT PROCESS

1. Plaintiffs will enter into agreements as requested by any landowner with an existing domestic water well that is located within 1320 feet of Plaintiffs' water wells or an existing domestic water well located on property described in Exhibit I attached hereto, under which Plaintiffs will agree that if Plaintiffs' wells have any serious adverse effect on the landowner's existing domestic water wells, Plaintiffs will provide a comparable replacement well at Plaintiffs' expense.

2. Plaintiffs will mail notice to all property owners with existing domestic water wells located on property described in Paragraph 1 above regarding availability of well protection agreements.

3. A person desiring a well protection agreement should contact Plaintiffs to request the agreement, and provide verified information regarding the location, depth, size, age, condition, etc. of any well for which a well protection agreement is requested.

4. Plaintiffs may wish to verify the existing condition and capacity of any well for which a well protection agreement is requested. The well protection agreement will provide Plaintiffs with access for this purpose.

5. The well protection agreement will provide that Plaintiffs may have monitoring equipment on the property, to assist in determining whether Plaintiffs' operation is having an adverse effect on existing wells on the propetiy.

6. Under the well protection agreement, if the landowner believes that Plaintiffs' operations are having an adverse effect on the landowner's well, the landowner is to notify Plaintiffs and cooperate with Plaintiffs in investigating the situation.

7. The parties to the well protection agreement will agree that should there be a dispute regarding whether Plaintiffs caused any serious adverse effect on a well, the patiies will seek a determination from the MDEQ division which issued Plaintiffs a pennit for their water supply system.

8. Plaintiffs will deposit a $10,000 letter of credit in escrow with the Township to ensure funds are available to provide replacement wells. Whenever there is a draw upon the letter of credit, a new letter of credit for $10,000 shall be deposited with the Township. It is intended that Plaintiffs shall continuously maintain a $10,000 source of funds available to provide replacement wells.

9. The agreements shall expire 7 years after 90% of the units within the Development are occupied. Plaintiffs will notify the Township when 90% of the units within the Development have received a Cetiificate of Occupancy

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MAY 0 3 2002

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION .. '( -? -,~:; I'?· J.., '3 - I ' L. • \

EASTBROOK DEVELOPMENT COMPANY, and M.A.M. INVESTMENTS, LLC,

Plaintiffs,

v.

ALGOMA TOWNSHIP,

Defendant. _____________________________ !

Teresa S. Decker (P32114) Randall W. Kraker (P27776) Varnum, Riddering, Schmidt & Howlett LLP Attorneys for Plaintiffs 333 Bridge St., N.W. P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000

----------------------------~/

.. ·-. . i .) ,,2;.-~::~i\

CivilActionNo.4:01CV108 ~·p~ HON. DAVID W. McKEAGUE

STIPULATION FOR CORRECTION OF TERM IN CONSENT JUDGMENT

Michael S. Bogren (P34835) Plunkett&Cooney,P.C. Co-Counsel for Defendant 535 South Burdick, Suite 256 Kalamazoo, MI 49007 (616) 382-5935

William A. Horn (P33855) Mika, Meyers, Beckett & Jones, PLC Co-Counsel for Defendant 900 Monroe Ave., N.W. Grand Rapids, MI 49503 (616) 632-8000

On March 26, 2002, the Court entered a Consent Judgment in this matter pursuant to the

stipulation and approval of the parties. Upon further review of the Consent Judgment as entered by

the Court, the parties have agreed to co1Tect the heading in Section 3 of the Consent Judgment.

During the negotiation of the terms and provisions of the Consent Judgment, the substance of

Section 3 changed and the heading was not changed to accurately reflect the substance of Section

3.

The parties therefore request that the Court enter an order authorizing the replacement of

existing page 3 of the Consent Judgment entered on March 26, 2002 with the attached page 3 which

reflects a change only to the heading of Section 3.

Dated: ~J. G; , 2002

Dated:_\.\;_\\--~-'~--' 2002 \

H:\W AH\CLN\Aigoma\Eastbrook\CJ.Correct.Stip.wpd

VARNUM, RIDDERlNG, SCHMIDT & HOWLETT Attorneys for Plaintiff

By:~~ Randall W. Kraker (P27776) 333 Bridge St., N.W. P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000

MIKA, MEYERS, BECKETT & JONES PLC Attorneys for Defendant

By:W.&S2~~

2

William A. Horn (P33855) 900 Monroe Ave., N.W. Grand Rapids, MI 49503 (616) 632-8000

Section 2. Phasing.

(a) The Development may be constructed in phases. Changes in sales or

market conditions will dictate the phasing and changes in phasing are permitted. Prior to

commencing construction of a phase, Plaintiffs shall indicate to the Township Board the

parameters of that phase.

(b) Prior to ·the issuance of a building permit for a unit in a development

phase, the streets, water and sewer systems and the construction of common

improvements in that phase shall be completed and approved, or a performance guarantee

which complies with township ordinance shall be furnished by the Plaintiffs. However,

prior to the issuance of a certificate of occupancy for a unit, the water and sanitary sewer

systems shall be completed and approved and shall be extended to that unit and

connected. A performance guarantee may not be provided in lieu of such completion and

approval of the water and sewer systems; provided, however, that up to three model

homes may be completed, solely for the purpose of dealing with potential home buyers,

and not for the purpose of the sale of such model homes, without the providing of a

performance guarantee, but such guarantee shall be provided in all other circumstances,

as noted above, including the sale of any such model home.

Section 3. Fire Facilities. Plaintiffs will donate the sum of $50,000 to Defendant

within ninety (90) days of the date of the initial building permit for the construction of a single

family home on the Property. Such funds will be used by Defendant only for fire protection

within the Township, which may include the Township's donation of these funds to the Algoma

Township Fire Capital Fund.

3

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EASTBROOK DEVELOPMENT COMPANY, and M.A.M. INVESTMENTS, LLC,

Plaintiffs,

v.

ALGOMA TOWNSHIP,

Defendant. _____________________________ /

Teresa S. Decker (P32114) Randall W. Kraker (P27776) V am urn, Riddering, Schmidt & Howlett LLP Attorneys for Plaintiffs 333 Bridge St., N.W. P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000

----------------------------~/

Civil Action No. 4:01CV108

HON. DAVID W. McKEAGUE

ORDER FOR CORRECTION OF TERM IN CONSENT JUDGMENT

Michael S. Bogren (P34835) Plunkett & Cooney, P.C. Co-Counsel for Defendant 535 South Burdick, Suite 256 Kalamazoo, MI 49007 (616) 382-5935

William A. Hom (P33855) Mika, Meyers, Beckett & Jones, PLC Co-Counsel for Defendant 900 Monroe Ave., N.W. Grand Rapids, MI 49503 (616) 632-8000

This matter having come before the Court upon the Stipulation of the parties seeking to

COlTect the heading of Section 3 on page 3 of the Consent Judgment entered on March 26,2002, the

Court hereby directs the Clerk to replace existing page 3 of said Consent Judgment with the

substitute page attached to the Stipulation of the parties regarding this matter.

Certified as a True C.('py nald C. WeGt

(

(

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EASTBROOK DEVELOPMENT COMPANY, Case No. 4:01-CV-108

.-,,

and M.A.M. INVESTMENTS, LLC, HON. DAVID W. McKEAGUE

Plaintiffs,

v

ALGOMA TOWNSHIP,

Defendant. _________________________________ /

Teresa S. Decker (P-32114) Randall W. Kraker (P-27776) Varnum, Riddering, Schmidt & HowlettLLP Attorneys for Plaintiffs 333 Bridge Street, N.W. P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000

Michael S. Bogren (P-34835) Plunkett & Cooney, P.C. Attorneys for Defendant 535 South Burdick, Suite 256 Kalamazoo, MI 49007 (616) 382-5935

--------------------------------~/

CONSENT JUDGMENT

William A. Horn (P-33855) Mika, Meyers, Beckett & Jones, PLC Co-Counsel for Defendant 900 Monroe Avenue, N.W. Grand Rapids, MI 49503 (616) 632-8000

At a session of said Court held in the City of Lansing, Michigan this _ day of , 2002.

PRESENT: HONORABLE DAVID W. McKEAGUE U.S. District Court Judge

l . ' . " .

Based upon the stipulation of the parties as evidenced by the signatures of their counsel

below, and the determination of the Court that this Judgment represents a reasonable resolution

of the pending dispute between the parties, IT IS ORDERED AND ADWGED as follows:

Section 1. Development of Project. The property which Plaintiffs propose to

develop, the legal description of which is contained in Exhibit A to this Judgment (the

"Property"), may be developed as a single family detached residential housing community

Planned Unit Development (hereafter "the Development") in accordance with the terms of this

Judgment and in substantial conformity with the preliminary design plan and preliminary

pedestrian plan both having a revision date of February 6, 2002 attached hereto as Exhibit B

("the Plan"), except insofar as the Plan may be modified during the process of final site

development plan approval by the Township Board in accordance with Section 19 of this

Consent Judgn1ent. After obtaining approval from the Township Board, Plaintiffs may modify

the Plan to redesign the driveway into the Development from Edgerton A venue so as to create a

unified site of approximately 8-12 acres adjacent to Edgerton Avenue, which site may be

transferr-ed, after obtaining approval from the Township Board, to a public school district for use

as a public school. If a public school district is not interested in such transfer, then the site may

be transferred, after obtaining approval from the Township Board, to another public or non-profit

entity for a use which preserves open space and provides a public benefit. Such approvals shall

be within the reasonable discretion of the Township Board. Any redesign of the driveway into

the Development shall provide for a 16-foot emergency access route fiom the Development to

Edgerton A venue.

2

Section 2. Phasing.

(a) The Development may be constructed in phases. Changes in sales or

market conditions will dictate the phasing and changes in phasing are permitted. Prior to

commencing construction of a phase, Plaintiffs shall indicate to the Township Board the

parameters of that phase.

(b) Prior to the issuance of a building pennit for a unit in a development

phase, the streets, water and sewer systems and the construction of common

improvements in that phase shall be completed and approved, or a performance guarantee

which complies with township ordinance shall be furnished by the Plaintiffs. However,

prior to the issuance of a celiificate of occupancy for a unit, the water and sanitary sewer

systems shall be completed and approved and shall be extended to that unit and

connected. A performance guarantee may not be provided in lieu of such completion and

approval of the water and sewer systems; provided, however, that up to three model

homes may be completed, solely for the purpose of dealing with potential home buyers,

and not for the purpose of the sale of such model homes, without the providing of a

performance guarantee, but such guarantee shall be provided in all other circumstances,

as noted above, including the sale of any such model home.

Section 3. Development of Park and Recreational Facilities. Plaintiffs will donate

the sum of $50,000 to Defendant within ninety (90) days of the date of the initial building permit

for the construction of a single family home on the Propeliy. Such funds will be used by

Defendant only for fire protection within the Township, which may include the Township's

donation of these funds to the Algoma Township Fire Capital Fund.

3

Section 4.

following features:

Design Characteristics. The Development shall incorporate the

(a) The Development shall be constructed as a site condominium and

have not more than 230 residential units of one single family detached dwelling each.

Each unit shall have the area shown on the Plan and shall be located as shown on the

Plan. The minimum unit width shall be as shown on the Plan. The minimum setbacks

shall be as follows:

Front yard- 30 feet

Side Yard (not along street right-of-way)- 10 feet

Side Yard (along street right-of-way)- 25 feet

Rear yard- 30 feet

Lots fronting on cul-de-sacs shall have a front yard setback of 30 feet from

street right-of-way and shall have a width of not less than 80 feet, as measured at the 30-

foot front yard setback line, except that the two most southerly lots abutting the cul-de-

sac that is immediately west of the water system parcel abutting Edgerton Avenue (such

cul-de-sac being the most southeasterly cul-de-sac in the Development) may each have a

minimum lot width of 70 feet, as measured at the 30-foot front yard setback line. That

part of a lot fronting on a cul-de-sac that has less than the required minimum width may

be included when measuring the depth of the front yard setback.

4

(b) Intemal traffic circulation throughout the Development shall be by means

of private streets to be constructed by Plaintiffs and located as shown on the Plan. The

private streets shall comply with all Township requirements for private streets, except as

modified by this Judgment. The right-of-way shall have a width of 66 feet, the travel

width of the streets shall be 24 feet (26 feet if stom1 water drainage is included with

valley gutters), and each street shall be paved with bituminous pavement and a sufficient

aggregate base. The street grade shall not exceed 8%, except that a 10% grade may be

allowed on two locations on the site located in the southwest quadrant of the

Development to allow the preservation of existing slopes and mature trees. The private

streets shown on the Plan may extend for the distances from Edgerton Avenue as shown

on the Plan, in view of the topography of the land, the location of the wetland areas and

for other reasons arising because of the nature of the land and its physical constraints. An

easement shall be provided for a future street connection immediately to the south, in the

southwesterly portion of the Development, as shown on the Plan.

(c) The private streets shall be maintained, repaired, replaced and

snowplowed so as to afford continuous access and unimpeded passage for vehicles

(including emergency vehicles) under all weather conditions. The Master Deed and

Condominium Bylaws shall have provisions requiring maintenance of the streets in

accordance with this Judgment and the other provisions of the Township ordinances

pertaining to public streets.

(d) The private streets shall have names approved by the Kent County Road

Commission.

5

(e) All utility service within the Development shall be by means of

underground facilities. The Master Deed shall reserve easements for future private and

public utility service, including water and sewer, within the private road right-of-way and

within 10 feet on both sides thereof.

(f) All dwellings shall be built upon a full basement and foundation.

Dwellings shall have minimum building floor areas as follows:

(i) Each ranch-style dwelling shall have a mm1mum floor area of

1,350 square feet on one level, excluding any attached garage.

(ii) Each split-level dwelling shall have a minimum floor area of 1,250

square feet on the main level and the upper levels.

(iii) Each two-story dwelling shall have a minimum floor area of 1,400

square feet, with not less than 740 square feet on the first floor.

(g) One sign identifying the Development may be located at the entrance to

the Development off Edgerton Avenue. The sign may be illuminated and shall not be

larger than 36 square feet and shall not be higher than 6 feet. Such sign shall, however,

be subject to the further approval by the Township Building Inspector as to placement

and other features thereof in accordance with the Township sign ordinance. Additionally,

one temporary sign pertaining to the sale of the premises upon which it is placed may be

allowed provided it does not exceed 32 square feet in total area.

(h) All dwellings in the Development shall be numbered in reasonable

numerical order, so as to promote ease of locating dwellings within the Development.

6

(i) All matters required by law as being subject to Michigan Department of

Environmental Quality (DEQ) approval shall be submitted to the DEQ and all required

petmits or approvals shall be obtained, including approvals pertaining to any changes in

or impacts on the wetland areas which may require permitting or other authorization

under state law or regulations.

Section 5. Private Wastewater Facility.

(a) Plaintiffs will construct at their expense, in accordance with applicable

standards of the Michigan Department of Environmental Quality, a community

wastewater treatment facility with adequate capacity to serve the Development. Such

facility shall exceed minimal standards and shall be designed, constructed, operated and

maintained in accordance with applicable local, state and federal laws and regulations

and to minimize any discharges of contaminants to the environment. Plaintiffs will

provide to Defendant such design and construction plans as are submitted to the

Michigan Department of Environmental Quality with regard to the wastewater treatment

facility, and such plans will be submitted to the Township Engineer for review and

comment. The Township may provide such comments to the regulatory agency as it, in

good faith, believes are appropriate. There shall be no direct discharge from the

wastewater treatment facility into the Rogue River.

(b) Plaintiffs and the Township may enter into an agreement whereby the

Township agrees to assure the proper operation of the system, should the private parties

responsible for the same fail to do so; provided, however, that such agreement shall

assure, as reasonably detennined by the Township Board, that the Township shall bear no

7

cost associated with respect to such undetiaking. Prior to entering into any such

agreement, the Township Board shall be satisfied, in its reasonable discretion, with the

proposed community wastewater treatment facility and proposed discharge method and

levels, that such undertaking is not contrary to the public interest, and that an agreement

satisfactory to the Township Board has been reached with the Plaintiffs with respect to

such undetiaking.

(c) The Master Deed and Condominium Bylaws shall contain provisions for

proper continued operation of the system, and such other conditions as are separately

required by the Township Board with respect to any undertaking to agree to assume

operation and responsibility for the system. Such provisions shall include, among other

matters, provisions constituting a petition and authorization for the Township to levy

special assessments on benefited units for repair, maintenance and replacement of the

system, should the Township or another governmental entity undetiake responsibility for

the system where permitted or required by law. Any such undertaking of ownership

and/or operational responsibility for the system shall be carried out only in such a mmmer

that no cost to the Township results, and accordingly, any agreement between the

Township and the Plaintiffs on the matter shall include, among other provisions, such

letter of credit or performance bond provisions that shall be sufficient to assure that the

Township shall bear no cost associated with the operation, repair or replacement of the

system or any part thereof. The Township Board shall be satisfied, in its reasonable

discretion, with the terms and provisions of any such proposed letter of credit or

performance bond.

8

Section 6. Water Supply Facility.

(a) Plaintiffs will construct at their expense, in accordance with applicable

standards of the Michigan Department of Environmental Quality, a private water supply

facility with adequate capacity to serve the Development. Such facility shall be designed,

constructed, operated and maintained in accordance with applicable local, state and

federal laws and regulations. Plaintiffs will provide to Defendant such design and

construction plans as are submitted to the Michigan Department of Environmental

Quality with regard to its private water supply facility, and such plans will be submitted

to the Township Engineer for review and comment. The Township may provide such

comments to the regulatory agency as it, in good faith, believes are appropriate. As a part

of establishment of the privately-owned public water supply system, Plaintiffs shall enter

into an agreement with the Township specifying the terms under which the Township

may elect to assume ownership and operation of the system, should the same be

necessary in the reasonable judgment of the Township Board. Such agreement shall be

satisfactory in form and content to the Township Board. The Township Board is not

required to approve the proposed water supply system or enter into such an agreement

until the Board is satisfied in its reasonable discretion with regard to all matters

pertaining to the legal establishment and operation of the system. Plaintiffs will execute

reasonable well protection agreements with Defendant with regard to existing water wells

on adjacent property in accordance with the outlined well protection agreement process

attached as Exhibit C to this Consent Judgment. The water supply system shall be

designed to facilitate connection to a public water system.

9

(b) The Master Deed or Condominium Bylaws shall contain provisions for

operation of the system, and provisions constituting a petition and authorization for the

Township to levy special assessments on benefited units for repair, maintenance, and

replacement of the system should the Township or another governmental entity ever take

responsibility for the system. Any such undertaking of ownership and/or operational

responsibility for the system shall be carried out only in such a manner that no cost to the

Township results, and accordingly, any agreement between the Township and the

Plaintiffs on the matter shall include, among other provisions, such letter of credit or

perfmmance bond provisions that shall be sufficient to assure that the Township shall

bear no cost associated with the operation, repair or replacement of the system or any part

thereof. The Township Board shall be satisfied, in its reasonable discretion, with the

tenns and provisions of any such proposed letter of credit or perfmmance bond.

(c) All aspects of the water supply system, including the installation and

operation of the water supply wells, shall have no serious adverse effect upon adjacent or

nearby lands, nor shall the drilling and operation of the water supply wells used in the

water system have any serious adverse effects on existing water wells in the vicinity or

the availability of water supply for such existing wells. Any such serious adverse effects

shall be a violation of this Judgment.

(d) The water supply system shall include the installation and maintenance of

valves and other necessary appurtenances of the water system that will enable the

Township fire depatiment to conveniently cmmect its equipment to the water system for

purposes of fire suppression within the Development. The location and nature of such

fire protection measures, and the number and location of connection points, shall be

10

subject to the approval of the Township Fire Chief, which approval shall not be

unreasonably withheld.

Section 7. Stormwater Drainage Facility.

(a) Plaintiffs will construct at their expense, in accordance with applicable

standards of the Michigan Department of Environmental Quality and that version of the

Kent County Drain Commission Stormwater Management Task Force Model Stormwater

Ordinance now being considered by the Township and as finally adopted by and then in

effect in the Township, stormwater drainage, detention and treatment facilities with

adequate capacity to serve the Development. Subject to continued compliance with

Michigan Department of Environmental Quality standards, the parties hereto may by

mutual agreement modify the provisions of the above described Model Ordinance if such

modification would better serve the goals of this paragraph. Such facilities shall be

constmcted, designed, operated and maintained in accordance with applicable local, state

and federal laws and regulations. The stormwater drainage plan and system shall be

subject to the approval of the Township Engineer, which approval shall be within the

reasonable discretion of the Township Engineer. The facilities shall have no serious

adverse effect upon adjacent or nearby wetlands, lands or surface waters, or upon

wetlands, lands or surface waters within the Development, by reason of erosion,

pollution, flooding, or otherwise. Any such serious adverse effect shall be a violation of

this Judgment. Plaintiffs will provide to Defendant such design and constmction plans as

are submitted to the Kent County Drain Commission with regard to its stormwater

drainage, detention and treatment facilities, and such plans will be submitted to the

Township Engineer for review and comment. The Township may provide such

11

comments to the regulatory agency as it, in good faith, believes are appropriate. The

response of the Kent County Drain Commission to the application, including any review

letter or other comment or infom1ation provided by the Drain Commissioner shall be

promptly submitted to the Township for its review. Any response on the part of the

Drain Commissioner shall be submitted by the Township to the Township Engineer for

review and comment. As a result, the Township Engineer may make further reasonable

requirements with respect to the stonnwater drainage system, and in that event, the

Plaintiffs shall comply with the same.

(b) The Condominium Master Deed and Bylaws shall required that all

facilities for stom1 water management be regularly maintained in properly functioning

condition.

(c) So as to help avoid the adverse effects of undue amounts of nutrients

which may affect the groundwater and other aspects of the lands, the site condominium

documents shall specify that only non-phosphorus fertilizers may be used on any lands

within the Development.

Section 8. Intersection Improvements. Plaintiffs will commission and pay for a

traffic study by Wade/Trim, traffic engineers, which will assess the impact of the Development

on the intersection of 11 Mile Road and Algoma Avenue. The traffic study shall be completed

and a copy provided to the Township prior to the start of any construction activities on the

property. If the traffic study indicates that improvements (which may include a traffic signal) are

required due to the Development and such improvements are constructed by the Kent County

Road Commission, Plaintiffs will pay 50% of the Township's share of the cost of such

12

improvements. If the Township will not bear any cost of such improvements, Plaintiffs will pay

25% of the cost of such improvements to the governmental entity undertaking the improvements.

Section 9. Soil Erosion and Sedimentation Control; Site Grading. In the

construction and use of the Development, Plaintiffs shall comply in all respects with any

required soil erosion and sedimentation permit. A copy thereof shall be submitted to the

Township. Soil erosion protection and stabilization techniques and procedures shall be provided

continuously during all phases of the construction, until lawns and other landscaped areas are

established. All aspects of site construction and grading shall have no serious adverse effect

upon the Rogue River, any wetlands or adjacent or nearby lands. Any such serious adverse

effect shall be a violation of this Judgment.

Section 10. 'Vetlands. Any portion of the Development which are wetlands or which

have been designated as wetlands under applicable Michigan law shall not be filled, dredged or

developed to any extent without the approval of the Department of Environmental Quality, by

means of such pem1its as may be required by law. The design, layout and construction of the

Development shall be canied out only in such a mam1er as to have no serious adverse effect on

the quality and the waters of any wetland areas. Any such serious adverse effect shall be a

violation of this Judgment.

Section 11. Indemnification Agreement. Plaintiffs will enter into an agreement to

hold harmless and release Defendant from any potential liability related to design, construction,

operation and maintenance of wastewater, drinking water, stormwater facilities, and soil erosion

and sedimentation protection and stabilization techniques or procedures to be constructed by

Plaintiffs pursuant to this Judgment.

13

Section 12. Approvals. In a timely fashion, Defendant will provide such reviews and

will issue any and all permits necessary for the construction and occupancy of the Development

which are within its authority to issue and to which Plaintiffs are reasonably entitled, and will not

interfere with Plaintiffs in obtaining any other governmental approvals required for the

Development. Notwithstanding the above, Defendant and its consultants shall be entitled to

make reasonable, good faith, pertinent comments and participate in the review process with

regard to the private wastewater, water supply, stormwater facilities and road improvements

proposed by Plaintiffs to the govemmental agencies charged with approving such facilities in

accordance with paragraphs 5, 6, 7 and 8 hereof.

Section 13. Lighting. The Development will utilize low impact Consumers Energy

lighting of such design and height as to minimize the splashing and glare of light into the sky.

Such street lighting shall be installed at the expense of the Plaintiffs and shall have its cost of

operation paid by unit owners. Any other lighting within the Development will comply with the

Township's outdoor lighting ordinance. Plaintiffs will submit a proposed lighting plan to the

Township Board for review and approval, which approval shall be within the reasonable

discretion of the Township Board. The Township will establish a street lighting special

assessment district which will assess the unit owners for the continuing operational costs of street

lighting. Plaintiffs will pay the Township for the Township's reasonable costs of establishing a

street lighting special assessment district.

Section 14. Trespass. The Master Deed or Condominium Bylaws shall contain a

provision which admonishes unit owners to respect the property rights of others with regard to

property which is not a part of the Development.

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Section 15. Open Space Area.

(a) Within those areas designated as open space (including areas designated as

green space, natural area or park and recreation area) on the Plan, no buildings, structures

or other improvements shall be constructed, nor shall trees or vegetation be removed,

except to construct the natural walking or non-motorized riding paths, trail

improvements, gazebos, playground areas, structures to support recreational activities,

roads, utility services and stom1water drainage or grading measures necessary for the use

of or for the gaining of access to natural areas within the Development, as shown on the

Plan; provided, however, that small-scale structures, solely for the enclosing of utility

system equipment and for the storage of maintenance equipment for recreation areas may

be permitted, if such enclosing structures are necessary for the feasible operation of

utility systems or for the maintenance of recreation areas and for no other purposes. Any

change to the sanitary sewer and water system isolation areas required by the Depmiment

of Environmental Quality or other agency having jurisdiction shall be submitted to the

Township Board for review and approval which approval shall be within the reasonable

discretion of the Township Board. The Condominium Master Deed and Bylaws shall

contain provisions preserving these areas as open space in perpetuity, and requiring that

the walking path be maintained in a usable condition.

(b) Playground areas, as shown on the Plan, shall include customary

playground equipment, picnic tables and similar equipment as shown on the Plan.

(c) The sanitary sewer and water system isolation areas shall be as shown on

the Plan or as may be required by the Department of Environmental Quality or other

15

agency having jurisdiction. The Condominium Master Deed and Bylaws shall contain

provisions matching the restrictions imposed by the DEQ and other appropriate

restrictions upon those units which lie partially in the isolation areas.

(d) Provisions for the perpetual maintenance of the open space and other

natural areas within the Development shall be included in the Master Deed and Bylaws or

in separate restrictive covenants. Such instruments shall be subject to the approval of the

Township Attorney prior to recording.

(e) Inasmuch as the open space area, as shown in the Plan, is an essential part

of the Development as authorized by this Judgment, the open space area or any part

thereof, except for the 8-12 acre parcel refened to in Section 1, shall not be conveyed,

leased or otherwise transfened, assigned or encumbered separately from the balance of

the Development, and the ownership thereof shall continue to be vested in the Developer

or the Condominium Association, following the transfer of the general and limited

common elements and other aspects of the Development to the Association. Any such

conveyance, transfer or encumbrance of the open space area shall be a violation of this

Judgment, but the provisions of this subparagraph shall not prohibit agreements between

the Plaintiffs and/or the condominium association , with others, for the mutual use of

open space area within the Development for outdoor recreational purposes only. The

condominium documents establishing the open space area, and providing for the

pern1itted uses therein, shall include provisions prohibiting the conveyance or other

transfer of the open space area as specified in this subparagraph. Such provisions shall be

subject to approval by the Township Attorney, before the recording of the condominium

documents.

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Section 16. Sidewalks. Sidewalks shall be installed as indicated on the Pedestrian

Circulation Plan, which shall be considered to be part of the Plan. The sidewalks shall be shown

on the street construction plans. A midblock sidewalk to the park and recreation areas, as shown

on the Plan, shall be provided. Sidewalks shall be constructed by each unit owner prior to

issuance of a certificate of occupancy for the dwelling constructed on each unit; provided,

however, that if because of inclement weather, a sidewalk cannot be constructed at the time the

dwelling is ready for a certificate of occupancy to be issued, then the certificate may neve1iheless

be issued, but the sidewalk shall be installed and completed as soon as weather permits, but in

any event not later than six months after issuance of the certificate of occupancy. The

Condominium Master Deed or Bylaws shall contain provisions requiring such sidewalk

construction by the unit owner.

Section 17. Sales Offices. Up to three single-family dwellings with garages finished

as sales offices may be used as temporary sales offices by the Plaintiffs for providing

information and soliciting sales of properties within the Development. Each such sales office

shall be located in a model home. Such offices may be located and relocated at the Developer's

discretion, except that only three such offices shall be in use at any time and no more than three

model homes (including any model homes authorized by Section 2(b) of this Judgment) shall

exist at any time. A dwelling in which the office is located shall in all respects have the

appearance of a single family dwelling, except that a sign of not more than 12 square feet

identifying the development and sales office may be placed on the prope1iy, and removed when

the property is no longer being used for a sales office.

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Section 18. Approval of Site Condominium; Master Deed and Bylaws. The

Township Board hereby approves the Edgerton Site Condominium and the Plan for the

Development, subject to the terms and conditions of this Judgment.

As to any requirements required herein to be included in the Master Deed and/or

Condominium Bylaws, such instruments shall specifically list such requirements and shall

provide that the same shall not thereafter be amended or deleted without the written approval of

the Township Board. Such provisions shall be reviewed by the Township Attorney before

recording, so as to verify their compliance with this subparagraph and this Judgment.

There shall be no provisions of the Master Deed or Condominium Bylaws which are

contrary to or at variance with the provisions of this Judgment or which would in any way hinder

the enforcement of this Judgment. To the extent that any such Master Deed or Condominium

Bylaw provisions may be contrary to or at variance with any of the provisions of this Judgment,

the same shall be applicable only to the extent pennitted by the tem1s hereof.

Section 19. Final Review. Prior to commencement of construction of the

Development, or any part thereof, Plaintiffs shall submit all applicable plans and documents to

the Township Board for a final review to determine compliance with this Judgment. In addition

to all information necessary to show compliance with the terms of this judgment and applicable

laws, rules, regulations and Township ordinances, the plans and documents shall include the

location of proposed water and sewer lines, stop signs and other traffic signs in the Development,

preliminary architectural sketches and/or a general statement as to the type of construction and

materials to be used in the proposed buildings or structures, the height and area of buildings and

structures, and a schedule of development and project staging.

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Section 20. Consultant Review Fees. Plaintiffs agree to reimburse the Defendant

within thirty (30) days of invoice, for the Defendant's actual fees and costs for services rendered

by the Defendant's engineer, attorney or planning consultant relative to the review of plans and

documents submitted for review under the terms of this Judgment. The Defendant shall cause

such charges to be reasonable and in amounts per hour equal to the normal billing rates normally

charged to the Defendant for the Defendant's work. Requests for payment or reimbursement

shall include itemized billings.

Section 21. Underlying Zoning. Except as modified herein, or pursuant to Section

19 above, the requirements of the R-A zoning district or any successor underlying district shall

apply to the Development.

Section 22. Enforcement. The Township may enforce the prov1s10ns of this

Judgment and applicable provisions of the Township Zoning Ordinance, Building Code and

other ordinances, laws and regulations to the extent and in the manner provided by law. In the

event the Plaintiffs shall fail to cany out, either at all or on a timely basis, any provisions or

requirement of this Judgment, other applicable law, ordinance or regulation, or any permit issued

for the Development, the Township may through its Building Inspector or other Township

agency issue and post a stop work order at the site of any improper or noncomplying part of the

Development, directing that all further construction of such part of the Development be ceased

forthwith, pending the compliance with any applicable provision of this Judgment, other

applicable law, ordinance or regulation or issued pem1it. Upon the issuance of such stop work

order, the Plaintiffs shall comply fully therewith without delay. Upon the conection and

restoration of any matters as to which the stop work order was issued, the Township shall

promptly rescind and remove the stop work order, whereupon the Plaintiffs may again proceed

19

with the construction or other permissible activity as to the Development. The issuance and

posting of any stop work order shall not be an exclusive remedy, but may be undertaken by the

Township in addition to all other lawful means of enforcement. Should any other governmental

body or agency issuing a permit for the Development notify Plaintiffs that a violation of the

permit has occurred, Plaintiffs shall immediately notify the Township Supervisor of this event.

Any violation of a pe1mit issued by any other governmental body shall be deemed a violation of

this Judgment. Should Plaintiffs' activities result in any serious adverse effect as is prohibited by

Sections 6(c), 7(a), 9, and 10, the Township is entitled to seek an order from this Court for the

conection and restoration of such matters and the Township will be entitled to recover its

reasonable attorney fees and expert fees as are incurred with regard to such action.

Section 23. Modification of Judgment. In the event that the provlSlons of this

Judgment require modification to meet the lawful requirements of any other governmental

agency, Defendant will not unreasonably withhold consent to such modification, and an

amendment to this Judgment may be entered incorporating any such modification.

Section 24. Cooperation. The parties will deal with one another in good faith, and in

a timely manner, and will neither take nor omit any action, by themselves or in concert with

others, which will interfere with carrying out the terms of this Judgment.

Section 25. Other Documents. The parties agree to execute in a timely manner, any

and all documents and/or enter into agreements as are necessary or convenient to carry out the

intent of this Judgment.

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Section 26. Written Changes. The terms of this Judgment may be amended,

changed, or modified, only by written agreement, unless otherwise specified herein. No waiver

of any provision of this Judgment shall be valid unless in writing.

Section 27. Binding Effect. This Judgment shall be binding upon, and shall inure to

the benefit of the parties hereto and their heirs, personal representatives, successors and assigns.

Section 28. Covenants. This Judgment is declared to be in recordable form and the

covenants contained herein are declared to be covenants running with the land and the Kent

County Register of Deeds is hereby ordered to record a true copy of this Judgmen