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CCR2011004-ResOfNecessity-Borst COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #004-2011 RESOLUTION OF NECESSITY (Borst) WHEREAS, Nancy Borst is a willing seller of lands to the City at the earliest possible date (Tax Key Nos. 2185.999, 2185.998, 2190.996.004, and 2190.995), and WHEREAS, The Borst land contains approximately 134 undeveloped acres of significant environmental features of oak savanna, oak woodlands, wetlands, and rolling glacial topography, and WHEREAS, Spring seeps and wetlands on the land comprise headwaters to an unnamed tributary to Jewel Creek that is important for the ecological health of Little Muskego Lake, and WHEREAS, The land contains areas identified as conservation and acquisition priorities in the adopted Parks & Conservation Plan and 2020 Comprehensive Plan, and WHEREAS, Goals and objectives of the 2020 Comprehensive Plan include lake protection, and preservation of significant natural features and rural character, and WHEREAS, 2020 Comprehensive Plan recommends fee simple acquisition as a tool to conserve such priority lands, and WHEREAS, the City has requested and received a “Letter of Retroactivity” from the Wisconsin DNR, pursuant to which the City may purchase the Borst land and receive post-purchase reimbursement from the DNR for up to 50% of the fair market value of the property from the Knowles-Nelson Stewardship Fund, and Whereas, The City of Muskego has a strong interest in purchasing all or portions of the land depicted on Exhibit A land for conservation purposes, including securing a convenient location for the disposal of aquatic vegetation harvested from Little Muskego Lake, and WHEREAS, Attached Exhibit A is an approximate depiction of the land Ms. Borst is willing to sell to the City, and WHEREAS, Attached Exhibit B depicts a memorandum of understanding stating the due diligence that both parties will pursue during this process. NOW, THEREFORE, THAT THE COMMON COUNCIL, WAUKESHA COUNTY, WISCONSIN, HEREBY RESOLVES AS FOLLOWS: 1. That this Resolution is a resolution of necessity in accordance with 32.06(1) and 32.07(2), Wisconsin Statutes; 2. That it is hereby determined that it is necessary for the City of Muskego to acquire fee simple title for the purchase of land for conservation purposes; 3. That it is also necessary, in the furtherance of the above-stated public purpose, for the City of Muskego to acquire fee simple title to the following described real estate: See attached legal descriptions and map marked Exhibit A. 4. That the City of Muskego will acquire, by condemnation in accordance with Chapter 32, Wisconsin Statutes, if necessary, the above-described interest in the above- Reso. #004-2011 Page 2 described real estate from the record owners thereof, and from any and all other persons or entities who may have a record interest in said real estate. BE IT FURTHER RESOLVED, That it is not the intention of the City of Muskego to utilize condemnation for the purchase of the Borst properties. The resolution of necessity is a mechanism to start the purchase process only. If a willing seller/willing buyer purchase agreement cannot be made between the parties initially, the City of Muskego will not pursue the ultimate condemnation process, as this procedure is not the method approved by the Common Council for this property unless the Council takes further action to approve condemnation. BE IT FURTHER RESOLVED, That the Council will meet to approve an offer to purchase and to approve the funds for the purchase before an offer to purchase is deemed valid. TH DATED THIS 25 DAY OF JANUARY, 2011. SPONSORED BY: Mayor John R. Johnson Deferred: 01/11/2011 This is to certify that this is a true and accurate copy of Resolution #004-2011 which was adopted by the Common Council of Muskego. _____________________________ Clerk-Treasurer Reso. #004-2011 Page 3 EXHIBIT A Reso. #004-2011 Page 4 EXHIBIT B Memorandum of Understanding Between Nancy Borst and The City of Muskego Now, Therefore, It is understood and agreed, by and between the City of Muskego and Nancy Borst that, 1. The City will continue to urgently advance its efforts to secure approval and financing to purchase some or all of the Borst land as depicted on Exhibit A, including securing a full narrative appraisal of the fair market value of the land, engaging in good faith negotiations to agree upon a purchase price, identifying and or securing financing for said purchase (including submitting an application to the Knowles-Nelson Stewardship Fund), conducting due diligence, and working to find solutions to related issues including assuring legal access to adjacent property owned by Ms. Borst. 2. With the understanding that Ms. Borst will remove the land depicted on Exhibit A from the market in order to allow the City to secure final approval of the proposed purchase (see Paragraph 5 herein), the City will require that a full narrative appraisal be completed with good faith effort by March 1, 2011, at City expense, will make a good faith effort to complete negotiations for the purchase of the property by April 1, 2011, and will seek to close on the transaction, if negotiations are successful, by June 1, 2011. 3. It is understood by the parties that the City may purchase parcel A (+/- 74 acres), or Parcels A & B (+/- 108.5 acres), and will secure an appraisal of both parcel A and combined Parcels A & B. 4. It is understood by the parties that time is of the essence and that a good faith effort will be made to conclude the purchase of the land by the city by the date set forth herein. 5. The parties agree that the City will require an access easement to enable access to the land and to the adjacent Ridges property. The access shown on Exhibit A is for illustrative purposes only; the precise location of this access will be agreed upon and the parties will negotiate a price for the access. 6. Ms. Borst will remove from the market for sale those portions of the land that are now on the market, until April 15, 2011, to permit the City to complete the work necessary to secure final approval to purchase the land. This date may be changed for good cause and by agreement of the parties, which good cause may include but is not limited to consensus that the negotiations for sale to the city are moving forward satisfactorily and agreement seems likely. 7. It is the intent of the City to purchase, and the intent of Ms. Borst to sell, the land contingent upon agreement on a purchase price, agreement on boundaries, acquisition of clear title, access to the adjacent land, and Ms. Borst’s ability to deliver title acceptable to the city. 8. The City agrees to advance and promote its efforts with all deliberate speed, recognizing that it is vital to Ms. Borst that the purchase close no later than June 1, 2011, and to hold special meetings of its review committees and governing bodies as necessary to meet this date. 9. The parties understand that pursuant to Wisconsin Statutes 32.035 an agricultural impact statement may be required and pursuant to Wisconsin Statutes 32.19 and 32.25 a relocation plan and benefits may be required and it may be required that they are approved by the Wisconsin Department of Commerce. 10. The parties recognize that nothing contained herein is legally binding on either one of them and this memorandum of understanding sets forth the present intentions of the parties.