CCR1972155RESOLUTION #155-72
APPROVAL OF FINAL PLAT OF DURHAM
MEADOWS SUBDIVISION
WHEREAS, the City of Muskego has received the final plat of
Durham Meadows Subdivision, and
WHEREAS, it is in conformity to the preliminary plat which
was approved by the Plan Commission, and
WHEREAS, the Plan Commission has recommended approval of the
final plat of Durham Meadows Subdivision, subject to norma1
approvals by any objecting agency of the State,
THEREFORE, BE IT RESOLVED that the Common Council of the City
of Muskego does hereby approve of the final plat of Durham
Meadows subject to the approval of all State objecting agencies.
BE IT FVRTHER RESOLVED that the Mayor and Clerk are authorized
to sign the plat in the name of the City after the record owner
and other persons have entered into the Subdivision Agreement
with the City of Muskego.
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ATTEST:
a OPEN SPACE ACRELh~iEbiI
For Durham Meadows
THIS AGREEMENT, made this /f day of August, 1972, by and between
JACK L. LaBONTE, as owner of the property hereinafter described (the “Owner”) and
the CITY OF MUSKECO, Waukesha County, Wisconsin, a municipal corporation (the
“City”),
WITNESSETH:
WHEREAS, Owner holds fee title to the subdivision locatcd in the City known as
“Durham Meadows,” including the plattcd Outlot which is subjcct to this Agreement,
and, as a condition to the approval of the final plat of said subdivision, the City has
required that Owner execute and deliver this instrument and record it concurrently with
the recording of said plat; and
WHEREAS, promptly after the recording of said plat Owner intends to convey
said Outlot to the Durham Meadows Homes Association, Inc., for the common benefit of
owners of platted building sites in said subdivision, and Owner and the City desire that
said Outlot be subject to the provisions and restrictions of this Agreement at the time of
such conveyance.
NOW, THEREFORE, Owner hereby grants, assigns and sets over to the City the
rights hereinafter described, and hereby declares that the property hereinafter described
shall be used, held, transferred, sold and conveyed subject to the conditions, restrictions,
coveiliiliis aorl easeiliailis hereinafter set forih:
1. Property Covercd. The property subject to this Agreement (herein called the
“premises”) shall consist of Outlot 1, Block 2, of Durham Meadows, a subdivision of part
of the SW%, Section 2, Town 5 North, Range 20 East, in the City of Muskego, Waukesha
County, Wisconsin.
2. Uses Permitted. The premises shall be used only for (a) esthetic, recreational
and cultural enjoyment, and the convenience of residents of Durham Meadows, including
their occasional guests; (b) drainage courses; (c) installation as inconspicuously as possible
of sewer, water, gas, electrical, telephone and other utility lines, facilities and equipment,
television antennae and related facilities to serve or aid in the maintenance or operation
of Durham Meadows; and (d) any other recreational use which does not materially
detract from the value of the surrounding territory by reason of such use of the
restricted open space in licu of the other uses herein permitted.
3. New Construction. This Agreement shall not preclude the construction or
location upon the premiscs of any building, structure, sign, fence, equipment, apparutus
or other improvement nccessnry or appropriate to the uscs permitted upon thc premises,
but no such improvement, other than underground utility lines and installations, shall be
constructed or installed except upon the prior approval of the City.
e 4. Failure ;G XaiiitGa; CGilVE~ZlCE for PnXc Park. If ;t any time thc Durham
Meadows Homes Association, Inc.. its corporate successors or its successors in title to the
premises shall fail to maintain the premises in a clean, orderly manner and so as to avoid
the premises bccoming a public nuisance or hazard to frequenters, and such condition
shall continue unremedied for more than ninety days after delivery by the City to the
. then owner of the premises, of written notice specifying the condition to be remedied,
then the Common Council of the City, by duly adopted resolution, may direct and
require that the then owner of the premises convey the same to the City, to Waukesha
County or to any other governlnental body or district having jurisdiction over the area in
which the premises are located, for public park purposes. Any deed for such required
conveyance shall provide, for the benefit of owners of all lots in Durham Meadows, that
the premises shall be used only for public park purposes and such other incidental uses as
are specified in clauses (b) and (c) of Section 2 hereof. Upon the execution and delivery
of such .conveyance, this Agreement shall be of no further force or effect.
5. Ri$ts Reserved to Owner. Nothing herein contined shall be deemed to grant
or convey to any person any legal estate in the premises, nor any easement for travel
over, or license or other ri~t in and to such lands, except that the City, its agents and
employees, shall have the right to enter upon the premises solely for the purpose of
inspection and enforcement of the terms hereof.
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6. Modification and Enforcement. This Agreement may be altered, amended or
terminated in whole or in part by written instrument executed by or on behalf of the
then owner of the premises and the City, pursuant to authorization of its Common
Council. The City, by its acceptance hereof, agrees that the exclusive right to enforce this
Agreement is vested and shall remain solely and exclusively in the City.
7:Term. This Ageement shall run with the land and shall be binding on all
persons claiming under Owner for a period of ten years irom tne date hereof, after which
time it shall automatically stand renewed for a further psiod of ten years, unless and
until there has been recorded an instrument signed, authorized and executed as provided
in Section 6 hereof.
8. Definitions. As used herein the term “Owner” shall mean the undersigned
Owner and all persons claiming any estate or interest in the premises by or through him,
and the term Wty” shall mean the City of Muskego, Waukesha County, Wisconsin, or
any other municipal corporation which succeeds to substantially the same zoning powers
over the premises as are now possessed by said municipality
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IN WITNESS WHEREOF, the Owner has hereunto set his hand and seal and the
City IMS caused its proper officers thereunto duly authorized to execute this Agreement
to evidcnce its acceptance of the rights herein conferred, all as of date first above
- written.
:ses a$ to. Jack L. LaBonte JACK L. LaBI
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a ’,
Witncsscs as to Jcronlc J. FOR THE COMMON COUNCIL
I m
Bette J. Bowyer,
. . . . . . . . .
STATE OF WISCONSIN )
) ss
MILWAUKEE COUNTY )
Personally came before me this IC’% day of August, 1972, the above-named
lack L. LaBonte, to me known to be the person who executed the foregoing instrument
and who acknowledged that he executed thc same as his own free act and deed.
?34awJQ .
. ..................................
Notary Public, Milwaukee County, Wis. ,
My Commission 7 13 ‘“75.
STATE OF WISCONSIN )
) ss
WAUKESHA COUNTY )
Personally came before me this /f 1 day of August, 1972, the above-named
Jerome J. Gottfricd, Mayor, and Bcttc J. Bowyer, City Clerk of the City of Muskego, to
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I me known to be the pcrsons who executed the foregoing instrument, and to me known
to bc SIICII Mayor and City Clerk of said City of Muskego, and acknowledged that they
excculcd the foregoing instrument as such officcrs as the decd of said City, by its
authorily.
This instrumcnt was prcpared by
Ncal E. hl;discn
Quarks, Ilcrriott, Clcmons, Tcschncr & Noclke
780 North Watcr Strcct ..
I Milwaukcc, Wisconsin 53202
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SUDDIVISLON AGREEMENT
For Durham Meadows
THIS AGREEMENT, made this day of August, 1972, between the CITY OF
MUSKEGO, Waukesha County, Wisconsin, a municipal corporation (the “City”), and
JACK L. LaBONTE, as Owner of certain lands situated in the City described in a filial
plat approved by the Common Council of thc City on July 25 , 1972 for a’residential
subdivision to be known as “Durham Meadows” (the “Subdivision”);
WHEREAS, Owner believes that the attractiveness and marketability of lots in the
Subdivision depend upon a careful coordination of the quality and price of the services
to be rendered to the residents thereof; and
0 WHEREAS, pursuant to Section 236.13 (2) of the Wisconsin Statutes and the
Subdivision and Platting Ordinance of the City, the City has determined, as a condition
to its approval of the final plat of the Subdivision, that the subdivider shall make and
install, or have made and have installed, the public improvements described in Section 2
hereof; and
WHEREAS, the City believes that the orderly, planned developmcnt of the lands
-included in the Subdivision with installation of the improvements listed in Section 3- of
this Agreement best promote the health, safety and general welfare of the community,
but the policies and general public works budget of the City do not include provision for
---,r---rt p., as.. . f?: sx!: LT~:cJ~.~E~~~?~:z cut cf g~nplra1 funds sf thz City; 2nd the City is
therefore willing to proceed with the installation of certain of such improvements as
public work, provided that the cost thereof is defrayed through special assessments upon
the lots in the Subdivision benefited thereby, and the City ,is willing to make such special
assessments payable in annual installments, provided that funds will be available through
the issuance of Special Assessment B Bonds pursuant to Section 66.54 (IO) of the
Wisconsin Statutes to cover the cost of such public work.
a NOW, THEREFORE, the City and Owner agree as follows:
1. Prior to or simultaneously with the recordation of the plat of the Subdivision,
Owner shall execute and record an Open Space Agreement and Declaration of
Restrictions, and shall cause to be organized as a nonstock Wisconsin corporation Durham
Meadows Homes Association, hc. in accordance with Articles of Incorporation and
Bylaws, all of wrhich instruments shall be in the form previously submitted to the City.
2. Owner, at his expense, shall cause engineering plans and specifications to bc
prepared by Metropolitan Survey Service and furnished to the City, for the installation
and construction of a community well, water mains, sanitary sewer mains. sewer and
water laterals, surface water drainage facilities, and the grading, installation of road base
and paving of streets to serve aU of the lots in the Subdivision. a
3. Upon approval by the City of such engineering plans and specifications, as
submitted or thcreafter revised to meet requirements of the City:
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(a) Developer, at Ius sole expcnsc, shall cause such water facilities to be
installed in accordance wilh sui 11 plans and specifications; and
(b) As to all of the other public improvements described in pnragnph 2
above (the “Public Work”), the City shall advertise, take bids and award a gcncral
contract for the construction and installation of such Public Work in accordancc
with its standard engineering and public works practices and the applicable
statutes of the State of Wisconsin.
4. The City agrees that the cost of the Public Work shall be financed by a levy of
special assessments against the platted building sites in the Subdivision, and agrees to
issue Special Assessment B Bonds based upon such assessments, either to the general
contractor in payment for the Public Work, or to a commercial bank pursuant to a
written commitment for the purchase thereof furnished by Owner, as the City may elect.
Owner agrees to reimburse the City for its out-of-pocket expenses incurred in connection
with such levy of special assessments and issuance of I3 Bonds, including the cost of
publication of legal notices, fees and disbursements of its legal counsel and any other
out-of-pocket expenses reasonably incurred by it, but not including any allocation for
time of its salaried personnel. In addition, the Owner agrees to pay to the City as
reimbursement for its administrative costs in handling the issuance of B Bonds, the
maintenance of a sinking fund therefor, and handling the payments and prepayments
upon such B Bonds the sum of $5.00 for each bond, payable when the bond is issued. e
5. To the extent the same are not included in the costs payable by the general
contractor for the Public Work, the City shall bill to Owner, who shall promptly pay, all
cost incurred by the City for inspection of the construction of the Improverncnts.
6. The following special provisions shall apply to the wet1,water mains and water
laterals to be installed by Omer pursilant to paragapF, 2 abox (the “Watcr Faci!itics”):
(a) If and to the extent necessary, the City shall grant a franchise to
Owner, or to Durham Meadows Homes Association, Inc., as his successor in title
to the Water Facilities, or to a trust which shall hold legal title to said facilities
for the benefit of all owners of lots within the Subdivision, to operate a private
utility to serve the Subdivision, provided, however, that the rates and service
charges of such utility shall be formulated so as not to recoup, or produce any
return upon, the initial capital cost of installing the Water Facilities.
(b) The City shall have an indefinite option to require transfer of the
Water Facilities without consideration from Owner or its successors in title
thereto as of the end of any calendar month, upon at least thirty days’ prior
written notice to the public owner of any municipal, intermunicipal, or
metropolitan water system which may hereafter be established by the City of
Muskego, either alone or in cooperation with other municipalities or any statutory
water district, provided, however, that such option shall terminate if, prior to its
exercise, and with the consent. of the City of Muskego, ownership of said Water
Facilities shall have been transferred to a privately owned public utility, the
proceeds from such sale having been divided among all of thc then lot owners.
(c) The City grants to Owner, and to his successors in title to the Water
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Facilities, a perpetual right and easement under all dedicated public streets in the
Subdivision for thc installation, maintenance and repair of the Watcr Facilities.
Owner, or his successors in title to the Water Facilities, in connection with any
such maintenance and repair work, shall erect suitable, lighted barricades; shall
repair, restore and rebuild as necessary all strects and othcr public improvements
located in dcdicatcd streets which may be opened, damaged or removed in
performing such work; and shall indemnify the City and hold it harmless against
all loss, damage, claims and expense to or by any third party as a result of any
such work performcd within the right-of-way of a public street.
(d) The City at all times shall have the right to draw water from said
system through the fire hydrants provided therefor for fire-fighting purposes in
connection with the lots served by the water system without charge to such
municipality.
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7. The following special provisions shall apply:
(a) All laterals shall be installed before street surfacing is commenced.
(b) Any undersound work to be performed in public streets for the
Water Facilities or by public utilities shall be completed before street surfacing.
(c) Easements shall be provided by Owner Cor the use of the Wisconsin
Electric Power Company and the Wisconsin Telephone Company at the rear lot
lines Cor the provision of services.
(d) The Public Work and Water Facilities shall be installed in strict
accordance with the requirements and specifications of the City of Muskego, and
the City Engineer or his authorized representative, or as directed by said City
Engineer; and shall be under and subject to continuous inspection by the City
Engineer or his representatives.
(0 The Owner shall pay a fee of $.20 per lineal foot of open drainage
swales, such fees to be payable with respect to each such drainage swale within 30
days after the general contractor has been paid by the City for the seeding of that
drainage swale.
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(S) Owner shall not be relieved or discharged of his obligations under this
Agement for installation of any improvements which are not bcing performed as
public work until final inspcction and approval of all Improvements has been
given by the City Engineer in writing.
8. The Owner acknowledges that the Conmon Council of the City of Muskego
on November 18, 197 I, by Resolution No. 220-7 I, resolved to establish guidelines for
considering proposed developments, including a guideline to the effect that:
“All developments, except thosc on city-owned property, will be limited
to 65% of the permitted density as established by the Zoning Ordinance.”
The Owner further acknowledges that the City has applied this guideline to preclude
present development of Lot 7 in Block I of Durham Meadows Subdivision. The Owner
reserves the right to seek reconsideration of tlus determination at any time after
November 18, 1973. The City reaffirms that it will diligently investigate the
possibilities of expanding the capacity of its sewerage treatment facilities and take
whatever action is necessary, within good planning concepts and economic feasibility,
to provide adequate sewerage treatment facilities.
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9. This Agreement shall be binding upon and inure to the benefit of the heirs,
personal representatives and assigns of Owner and the City and its successors.
IN WITNESS WHEREOF, the duly authorized officials of the City of Muskego
and tk Owncr have hereunto set their hands.
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Og&d& ... ..............
Jack L. IaBonte
Bette J. Bowyer, dxty Clkrk