CCR2002014AMENDED
COMMON COUNCIL -CITY OF MUSKEG0
RESOLUTION #14-2002
APPROVAL OF PRE-DEVELOPMENT AGREEMENT
Big Muskego Estates
WHEREAS, A Pre-Development Agreement between Towne Realty, Inc. and the City
of Muskego has been received for the Big Muskego Estates development; and
WHEREAS, The Finance Committee has reviewed the Agreement and has
recommended approval.
NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of
Muskego, upon the recommendation of the Finance Committee, does hereby approve
the Pre-Development Agreement, as amended, subject to approval of the City Attorney
and City Engineer
BE IT FURTHER RESOLVED That this approval is subject to passage of Resolution
#15-2002 and passage and publication of Ordinance #1090.
BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are hereby
0 authorized to sign the necessary document in the name of the City
DATED THIS 22nd DAY OF JANUARY ,2002
SPONSORED BY:
FINANCE COMMITTEE
Ald. Mark A. Slocomb
Ald. David J. Sanders
Ald. Nancy C. Salentine
This is to certify that this is a true and accurate copy of Resolution #14-2002 which was
adopted by the Common Council of the City of Muskego.
1/02 jmb
\./Lf&//y m&
Cldk-Treasurer i/
FILE No,.682 01/18 '02 All 09::20 ID:ARENZ,tlOLTER.flACY FAX :262 548 9211 PAGE 1
DALE W. 4RENZ
IOHN P. RACY.
H. STANLEV RIFFLE,
WNALD E MOIER, m
COlJRl COMMIESIONFR
COUNT CDMHISSIONER
ARENZ, MOLTER, MACY & RIFFLE, S.C.
P.O. eox 1348
LAW OFFICES OF
720 N. EAST AVENUE
WAUKESHA, WISCONSIN 53187-1348
I'ELEPHDNC 648.,1340
AREACOUtZ61
FACSIMILE Sm9X I
RICK 0. TRlNUL
tlUC 1 URSQN IUUE A. AQVAVl4
DV&N E. BARBEAll GRETCIIEN V. STEVENS
-
Mr Brian Turk
Director of Planning
CITY OF MUSKEG0
P.O. Box 749
January 18, 2002
Via Fax
Fax #679-5614
Total Pages: 2
0 Muskego, WI 531 50-0749
Re: Towne Realtv DevelQpment
Dear Brian:
I have made a general review of your January 15, 2002 fax of the proposed revised
Pre-Development Agreement only as to changes suggested in my correspondence
'to you dated January 10, 2002. I have the following comments:
1. Attached please find the only page on which I propose any changes.
A. In Project Area 1 where I have crossed out the word "including"
B. Also in the last paragraph on the bottom of that page, I believe the
C. Also on the attached page, you keep referring to a deed restriction.
replace it with "and with".
words "approved by the City" were left off at the end OF the sentence.
However, the document you sent me is entitled, "Deed of
Conservation Easement." We should be consistent.
If you have any questions, please call.
0 Sincerely,
DSMIpw
cc: Mayor David L. De Angelis (Via Fax #679-5630. 2 Pages)
Ms. Jean Marenda, Clerk (Via Fax #679-4106. 2 Pages)
PAGE 2
Pm.mvo rnmt A#mwImn DRAFT 1Ll
and
WHEREAS, Subdlvlder propoeeo to proceed wlth the development under the aueplcea Of RS-2 I OPD and SubdMder and Clty deslre to formallre their underetandlng of the proJect soope and Intent prior to
preparatlon of a Prellmlnary Plat and constructlon plana for the development of the property and entering
into a Developers Agreement.
NOW, THEREFORE, In conslderatlon of the covenant9 hereln contalned, the padee hereto agree a6
follows:
Concurrent wlth the approval of thls Pre-Development Agreement the Common Councll shtlll approve d
rezonlng of the Property to RS-2 I OPD Suburban Realdance Dlstrlct wlth Planned Development Overlay
Dlatrlot. The underlylnO RS-2 Zonlng Dlatrict snU overlaylng OPD District shall encompase the entlre Property deecribd by thle agreement. The rezonlng Is condltloned upon Developer complylng wlth ali other requlremente of 811 applicable governmental law, ordlnancee (lncludlng but not llmlted to OPD
zonlng dlstdct ordlnancae), and reguletlon~ belng met and the approval ol the Bulldlng and Englneerlng
Director and Plannlng Dlrector.
The lend area eubjed to thla Agreement ehall be dlvlded Into three speolflc project arm 86 desctfbed
hereln. ana llluetrated on Map 2 found in thle Sedon:
wn Oeneral conformance wlth the Sketch Prellrnlnary Plat approved by Common Council
r : All lands eoet of Durham Drlve, to be developed for seMlred slngle famlly resldential
Resolullon #202-01 and the Prellmlnary Plat of Blg Muskego Ewetes approwd by the Common Councll
by Resolutlon R 4-13. Sald development wlll conlorm to the tollowlng reguirernsnts: Maximum 54
reeldentld parcela, mlnlmum residentlal parcel size of 20,000 equare feet, minimum average realdmtlal
ordlnanoea, and reguletiona have been met I
paroel wldth of 110 feet and provldad all ot nts of all eppllcable governmental laws, proval of the Bulldlng and Englneering
Dlrector end Plannlng DLrector. The rezonlng la condltloned upon Developer oomplylng wlth all other
dlstria ordlnance6), and regulations belng met and the approval 01 the Bulldlng and Englneering Dlrector requinmente of all appllcable governmental lawe, ordlnenoee (Includlng but not llrnlted 10 OPD zoning
and Planning Dlrector.
w: Land8 abunlng ths westerly rlght 01 way of bumam Drlve shall be divided to provlde for a stormwater management outtot to eewe Project Area 1, and will provlde a separate parcel for the
continued use and habltatlon of the exletlng resldence and outbulldlngs. Speclfk parcels slma are to be detefmlned at a later date In conJunctlon with the development of ProJect Area I.
-3: Lands to be preserved for common open apace and stormwater management In perpetulty. Sfdd lande wlll be deed restricted from development concurrent with the exmullon of lhle
Bhall run wlth the land and be blndlng upon all future ducceeaom and asslgne. Clty and Subdlvider
PreDevelopment Agreement and approval of rctzonlng a6 deecrlbed in Section 1, Said deed reslrlctlon
acknowledge that k le Subdlvldem Intent lo transfer ownerahlp of Project Area 3 to the WDNR. In the absence of sold transfer, Project Area 3 ahdl remmJn the ownershlp and melntenance rmponelblllty of &-I
Incorporated asaoolatlon of the owners of parcels In ProJeat ha 1, or a conservancy trust 88 may be 1
TOWNE REALTY - CITY OF MUSKEG0
PRE-DEVELOPMENT AGREEMENT
This Agreement, made this day of , 2002 by and between Towne Realty, Inc. (the
"subdivider") and the City of Muskego, a municipal corporation of the State of Wisconsin, located in
Waukesha County, (the "City").
WITNESSETH
WHEREAS, Subdivider is the owner of certain lands (the "Property") described as:
A part of the Southeast one quarter and Southwest one quarter of Section 13, T5N R20
E, City of Muskego, Waukesha County, Wisconsin, commencing at the northwest corner
of the southeast quarter of Section 13, and the beginning of the property to be described;
thence N87' 18'00 E 827.64 feet; thence S 01 11'16" E 1,789.28 feet; thence S 89' 01'
34 W 296.89 feet to a point on the centerline of Durham Drive; thence N 38' 45' 12 W
444.48 feet along said centerline; thence S 36 ' 03' 13" 37.85 feet to a found iron pipe;
thence S 36 03' 13 W 439.64 feet; thence S 88' 07' 00" W approximately 2,854 feet to
a point on the shoreline of Big Muskego Lake; thence northerly along said shoreline
approximately 450 feet; thence N 87' 34' 56 E approximately 1,272 feet; thence N 89
46' 36" E 30.79 feet; thence N 77' 57' 47" E 178.17 feet; thence N 07' 24' 05 W 961.00
feet; thence N 03 12' 59" W 290.46 feet to a point on the south right-of-way line of Holz
Drive; thence N 87 ' 27' 18" E 454.88 feet along said right-of-way line to a point on the
center line of Durham Drive; thence S 43 04' 00" E 59.28 feet along the centerline of
Durham Drive; thence N 46' 56' 00 E 83.68 feet; thence N 02 32' 43 W 50.69 feet to a
point on the north line of the Southwest quarter of said Section 13; thence N 87' 27' 18"
E 799.39 feet to the northwest corner of the southeast quarter of Section 13 and the point
of beginning of this description. Said lands contains approximately 92.2137 acres. e
And as illustrated on Map 1 found in Section II of this Agreement, and
WHEREAS, Subdivider has prepared a Yield Plan depicting the development of the entire property for
single family residential development encompassing 54 sewered residential lots being a minimum of
40,000 square feet in area, and said Yield Plan conforms to the adopted 2010 Comprehensive Plan's
net density objectives, and the Yield Plan was approved in concept by the Common Council by
Resolution #202-01, and
WHEREAS, That portion of said lands located west of Durham Drive is located within the project
boundaries of the Wisconsin Department of Natural Resources (WDNR) Big Muskego Lake Wildlife
Area, and the City desires to see said lands remain in common open space, and
WHEREAS, Subdivider has prepared a Sketch Preliminary Plat pursuant to Chapter 18 of the Municipal
Code, under the auspices of an RS-2 / OPD Suburban Residence District with Planned Development
Zoning District, and said OPD contains 54 parcels being a minimum of 20,000 square feet in area, and
said Sketch Preliminary Plat conforms to the adopted 2010 Comprehensive Plan's net density
objectives, conforms to the open space preservation objectives of the WDNR Big Muskego Lake Wildlife
Area, and the Sketch Preliminary Plat was approved in concept by the Common Council by Resolution
#202-01, and
WHEREAS, Section 236.13 of the Wisconsin Statutes provides that as a condition of plat approval, the
governing body of the City may require that the Subdivider enter into certain agreements and make and
Install certain public improvements reasonably necessary for the Subdivision and further, may require
dedication of public streets, alleys or other ways within the Subdivision, to be conditioned upon the
construction of said improvements according to municipal specifications without cost to said municipality;
Page 2
Pre-Development Agreemenl
DRAFT 1112612001
and
WHEREAS, Subdivider proposes to proceed with the development under the auspices of RS-2 I OPD
and Subdivider and City desire to formalize their understanding of the project scope and intent prior to
preparation of a Preliminary Plat and construction plans for the development of the property and entering
into a Developers Aqreement.
NOW, THEREFORE, in consideration of the covenants herein contained, the parties hereto agree as
follows:
SECTION I : ZONING DISTRICT BOUNDARIES
Concurrent with the approval of this Pre-Development Agreement the Common Council shall approve a
rezoning of the Property to RS-2 I OPD Suburban Residence District with Planned Development Overlay
District. The underlying RS-2 Zoning District and overlaying OPD District shall encompass the entire
Property described by this agreement. The rezoninq is conditioned upon Developer complvinq with all
other requirements of all applicable qovernmental laws. ordinances (includinq but not limited to OPD
zoninq district ordinances), and requlations beinq met and the approval of the Buildinq and Enqineerinq
Director and Planninq Director.
SECTION II : DEVELOPMENT CONFIGURATION
The land area subject to this Agreement shall be divided into three specific project areas as described
herein, and illustrated on Map 2 found in this Section:
Proiect Area 1. All lands east of Durham Drive, to be developed for sewered single family residential
development in general conformance with the Sketch Preliminary Plat approved by Common Council
Resolution #202-012 and the Preliminaw Plat of Biq Muskeqo Estates approved by the Common Council
by Resolution # -02. Said development will conform to the following requirements: Maximum 54 I
residential parcels, minimum residential parcel size of 20,000 square feet, minimum average residential
parcel width of 110 feet and provided all other requirements of all applicable qovernmental laws, 1
ordinances, and requlations have been met includinq the approval of the Buildinq and Enqineerinq
Director and Planninq Director. The rezoninq is conditioned upon Developer complvina with all other
requirements of all applicable qovernmental laws, ordinances (includinq but not limited to OPD zoninq
district ordinances). and requlations beinq met and the apDroval of the Buildinq and Enqineerinq Director
and Planninq Director.
Proiect Area 2: Lands abutting the westerly right of way of Durham Drive shall be divided to provide for
a stormwater management outlot to serve Project Area 1. and will provide a separate parcel for the
continued use and habitation of the existing residence and outbuildings. Specific parcels sizes are to be
determined at a later date in conjunction with the development of Project Area 1
Proiect Area 3: Lands to be preserved for common open space and stormwater manaqement in I
perpetuity. Said lands will be deed restricted from development concurrent with the execution of this
Pre-Development Agreement and approval of rezoning as described in Section 1, Said deed restriction
shall run with the land and be binding upon all future successors and assigns. City and Subdivider
acknowledge that it is Subdividers intent to transfer ownership of Project Area 3 to the WDNR. In the
absence of said transfer, Project Area 3 shall remain the ownership and maintenance responsibility of
an incorporated association of the owners of parcels in Project Area 1, or a conservancy trust as may
be approved by the City. I
Page 3
Pre-DeveloDrnent AQreernent
ORAFT 11;26/2001~
Note: Boundary bebeen Project Area 2
and Project Area 3 to be determined at
a later date. 0 300 BOO
I8 ' -L:y
Map 2 Development Configuration
-
SECTION 111 : PERSONAL LIABILITY OF PUBLIC OFFICIALS
In carrying out any of the provisions of this Agreement or in exercising any power or authority granted to
them thereby, there shall be no personal liability of the City officers, agents, independent contractors, or
employees, it being expressly understood and agreed that in such matters they act as agents and
representatives of the City. It is expressly understood that no construction of improvements will be
commenced in any of the Project Areas based upon this Aqreement. I
SECTION IV : AGREEMENT FOR BENEFIT OF FUTURE PURCHASERS:
The Subdivider shall agree that in addition to the City's rights herein, the provisions of this Agreement
shall be for the benefit of the purchaser and all future purchasers of any interest in any lot or parcel of e land subject to this Agreement.
Page 4
Pre-Development Agreement
ORAFT 11/26/2001
SECTION V : NOTICES AND CORRESPONDENCE
Unless othelwise stated in this Agreement, the delivery of all notices and correspondence shall only be
effective upon being delivered personally, sent by prepaid United States Postal Service certified mail
with return receipt requested, sent by facsimile with transmission confirmation, or sent by electronic mail
with return receipt requested, to all parties as follows:
To City:
Planning Department
City of Muskego
POB 749
W182 S8200 Racine Avenue
Muskego, WI 53150-0749
(262) 679-5614 facsimile
Planning@ci.muskego.wi.us
(262) 679-4 136
To Subdivider:
Towne Realty, Inc.
Attn: William A. Wigchers
710 North Plankinton Ave
Milwaukee, WI 53203
(414) 274-2486
(414) 274-2728 facsimile
bill.wiachers@Zilber.com
With Copy to:
Young & Madigan, S.C.
Attn: Sandra J. DeLisle
710 North Plankinton Ave.
Milwaukee, WI 53203
(414) 274-2710 facsimile
sandi.delisle@Zilber.com
(414) 274-2438
All notices shall be considered to have been delivered at the time such notices are personally delivered
to each party, or three (3) days after the date of postmark on any prepaid certified letter, facsimile
transmission, or electronic mail.
Parties to this Agreement shall give fifteen (15) days notice of any change of mailing address, telephone
or facsimile number, or electronic mail address. Failure to provide said notice may constitute a default
by the party.
SECTION VI. PARTIES BOUND
Subdivider or its assignees shall be bound by the terms of this Agreement or any part herein as it
applies to any phase of the development. Approval by the City shall not be deemed a waiver as the
ultimate responsibility for the proper design and installation of street improvements, drive and parking
areas, water facilities, drainage facilities, ditches, landscaping and all other improvements shall be the
Subdividers. The fact that the City or it's engineers, or it's attorney, or it's staff may approve a specific
project shall not constitute a waiver, or relieve the Subdivider from ultimate responsibility for the design,
performance, and function of the Development and related infrastructure.
SECTION VI1 : AMENDMENTS AND ASSIGNMENT
It is anticipated that Subdivider will assign this Aqreement to a new Limited Liabilitv Corporation bein
City which shall not be unreasonablv withheld. No further assiqnment shall be allowed.
0 established for the proiect. This assiqnment may not be made without the Drior written consent of th: ..
Page 5
Pre-Development Agreement
DRAFT 11/26/2001
-
SECTION Vlll : PARTIES TO THE AGREEMENT
IN WITNESS HEREOF, Subdivider has caused this Agreement to be signed by its appropriate officers
and their seals to be hereunto affixed in duplicate original counterparts on the date and year first written
above .
A. Towne Realty, Inc.
By:
STATE OF WISCONSIN ) SS
WAUKESHA COUNTY )
PERSONALLY came before me this __ day of ,2002 the above named
acknowledged the same.
to me known to be the person who executed the foregoing instrument and
0
Notarv Public-State of Wisconsin
My Commission Expires
Paoe 6 " Pre-Development Agreement
DRAFT 11/26/2001
IN WITNESS HEREOF. Citv has caused this Aareement to be sianed bv its aDDroDriate officers and
their seals to be hereunto affixed in duplicate original counterpais on the date'and year first written
above.
.~
B. CITY OF MUSKEGO:
BY:
David L. DeAngelis, Mayor
BY:
Jean K. Marenda, CMC City Clerk-Treasurer
STATE OF WISCONSIN ) SS
WAUKESHA COUNTY )
PERSONALLY came before me this day of ,2002 the above named David L.
DeAngelis, Mayor, and Jean K. Marenda CMC City Clerk-Treasurer, of the City of Muskego, to me
known to be the persons executed the foregoing instrument, and to me known to be such Mayor and
City Clerk-Treasurer of said municipal corporation, and acknowledged that they executed the foregoing
instrument as such officers as the deed of said municipal corporation by its authority and pursuant to the
authorization by the Common Council from their meeting on the day of ,2002.
e
Notary Public-State of Wisconsin
My Commission Expires
I Page 7
Pre-Development Agreement
DRAFT 11126/2001 I i I. CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Pre-Development Agreement, as
entered into on the day of , 2002 by and between Towne Realty, Inc. and the
City Of Muskego, pursuant to the authorization by the Common Council from their meeting on the
day of ,2002.
I
BY THE COMMON COUNCIL
t Jean K. Marenda, CMC City Clerk-Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
This day ,2002.
I My commission expires
This instrument drafted by
Brian Turk, Director of Planning
City of Muskego
Deed of Conservation Easement- Big Muskego Estates Subdivision
THIS DEED OF CONSERVATIN EASEMENT is made this __ day of -,
2002 by Towne Realty, Inc., having an address of 710 North Plankinton Avenue,
corporation having an address of W182 S8200 Racine Avenue, P 0. Box 749,
Milwaukee, WI 53203. ("Grantors") in favor of the City of Muskego. a municipal
Muskego, WI.. 53150 ("Grantee").
Witnesseth:
WHEREAS, Grantors are the sole owners in fee simple of certain real property in
Waukesha County, Wisconsin, more particularly described as
INSERT LEGAL
, and
WHEREAS the Property possesses significant environmental features including
floodplains and shoreland-wetlands of great importance to Grantors, the people of the
City of Muskego; and
WHEREAS the specific conservation values of the Property are further
documented in an inventory of relevant features of the Property as found in the Applied
Ecological Services (AES) report titled Veqetation and Ecoloqical Conditions of The City
of Muskeqo. dated January 2001, and incorporated by this reference ("Baseline
Documentation"), Said report consists of studies, maps, photographs, and other
documentation that the parties agree provide, collectively, and accurate representation
of the Property at the time of this grant and which is intended to serve as an objective,
though nonexclusive, information baseline for monitoring compliance with the terms of
this grant, and
WHEREAS, Grantors intend that the conservation values of the Property be
preserved and maintained by permitting only those land uses on the Property that do not
significantly impair or interfere with said values, including, without limitation, those land
uses relating to open space existing at the time of this grant, and stormwater
managment; and
WHEREAS, Grantors further intend, as owners of the Property, to convey to the
Grantee the right to preserve and protect the conservation values of the Property in
perpetuity; and
NOW, THEREFORE, in consideration of the above and mutual covenants, terms,
conditions, and restrictions contained herein, and pursuant to the law of the State of
Wisconsin, Grantors hereby voluntarily grant and convey to Grantee a conservation
easement in perpetuity over the Property to the extent hereinafter set forth ("Easement")
free and clear of all encumbrances except recorded easements and restrictions and
municipal zoning ordinances, and real estate taxes in year of closing.
SECTION 1 Purpose. It is the purpose of this Easement to assure that the Property will
any use of the Property that will impair or interfere with the conservation values of the
be retained forever in its open space and shoreland-wetland condition and to prevent 0
Big Muskego Estates Conservation Easemenl
Page 2
Property. Grantors intend that this Easement will confine the use of the Property to such
activities, including, without limitation, those involving stormwater management and
passive open space uses, as are not inconsistent with the purpose of this Easement.
SECTION 2. Rights of Grantee. To accomplish the purpose of this Easement the
following rights are conveyed to the Grantee by this Easement.
(a) To preserve and protect the conservation values of the Property;
(b) To enter upon the Property at reasonable times in order to monitor compliance with
and otherwise enforce the terms of this Easement in accordance with Section 6;
provided that, except in cases where Grantee determines that immediate entry is
required to prevent, terminate, or mitigate a violation of this Easement, such entry
shall be upon prior reasonable notice to Grantors, and Grantee shall not in any
case unreasonably interfere with Grantor's use and quiet enjoyment of the
Property; and
(c) To prevent any activity on or use of the Property that is inconsistent with the
purpose of this Easement and to require the restoration of such areas or features
of the Property that may be damaged by any inconsistent activity or use, pursuant
to the remedies set forth in Section 6.
SECTION 3. Prohibited Uses. Any activity on or use of the Property inconsistent with
the purpose of this Easement is prohibited. Without limiting the generality of the forgoing,
the following activities and uses are expressly prohibited: Clear cutting or removal of
jurisdiction including but not limited to the Wisconsin Department of Natural Resources
trees, dredging or filling of wetlands except as may be authorized by agencies of
and the US Army Corps of Engineers.
SECTION 4. Reserved Rights. Grantors reserve to themselves, and to their personal
representatives, heirs, successors, and assigns, all rights accruing from their ownership
of the Properly, including the right to engage in, or permit or invite others to engage in,
all uses of the Property that are not expressly prohibited herein and are not inconsistent
with the purpose of this Easement.
SECTION 5. Notice and Approval
5.1 Notice of Intention to Undertake Certain Permitted Actions. The purpose of
requiring Grantors to notify Grantees prior to undertaking certain permitted activities, as
provided in paragraph 4, is to afford Grantees an adequate opportunity to monitor the
activities in question to ensure that they are designed and carried out in a manner that is
not inconsistent with the purpose of this Easement. Whenever notice is required
Grantors shall notify Grantee in writing no less than thirty (30) days prior to the date
Grantors intend to undertake the activity in question. The notice shall describe the
activity in sufficient detail to permit Grantee to make an informed judgment as to its
nature, scope design, location, timetable, and any other material aspect of the proposed
consistency with the purpose of this Easement.
5.2 Grantees Approval. As set forth in paragraph 5.1 , Grantee shall grant or withhold
its approval in writing within sixty (60) days of receipt of Grantor's written request
therefore. Grantee's approval may be withheld only upon a reasonable determination by
0
a
Big Muskego Estates Conservation Easement
Page 3
0 Grantee that the action as propose would be inconsistent with the purpose of this
Easement.
SECTION 6. Grantee's Remedies
6.1 Notice of Violation; Corrective Action. If Grantee determines that a violation of the
terms of this Easement has occurred or is threatened, Grantee shall give written notice
to Grantors of such violation and demand corrective action sufficient to cure the violation
and, where the violation involves injury to the Property resulting from any use
inconsistent with the purpose of this Easement, to restore the portion of the Property so
injured to its prior condition in accordance with a plan approved by Grantee.
6.2 Injunctive Relief. If Grantors fail to remedy the violation within sixty (60) days after
receipt of notice thereof from Grantee, or under circumstances where the violation
cannot be reasonably cured within a sixty (60) day period, fail to begin curing such
violation with the sixty (60) day period, or fail to continue diligently to cure such violation
until finally cured, Grantee may bring an action at law or in equity court of competent
jurisdiction to enforce the terms of this Easement, to enjoin the violation, ex parfe as
necessary. by temporary or permanent injunction; and to require the restoration of the
Property to the condition that existed prior to any such injury.
6.3 Damages. Grantee shall be entitled to recover damages for violation of the terms of
the Easement or injury to any conservation values protected by this Easement,
including, without limitation, damages for the loss of scenic, aesthetic, or environmental
values. Without limiting Grantor's liability therefore, Grantee, in its sole discretion, may
apply any damages recovered to the cost of undertaking any corrective action on the
Property.
6.4 Emergency Enforcement. If Grantee, in its sole discretion, determines that
circumstance require immediate action to prevent or mitigate significant damage to the
conservation values of the Properly, Grantee may pursue its remedies under this section
6 without prior notice to Grantors or without waiting for the period provided for cure to
expire.
6.5 Scope of Relief. Grantee's rights under this Section 6 apply equally in the event of
either actual or threatened violations of the terms of this Easement. Grantors agree that
Grantee's remedies at law for any violation of terms of this Easement are inadequate
and that Grantee shall be entitled to the injunctive relief described in paragraph 6.2, both
prohibitive and mandatory, in addition to such other relief to which Grantee may be
entitled, including specific performance of the terms of this Easement, without the
necessity of proving either actual damages or the inadequacy of otherwise available
legal remedies. Grantee's remedies described in this Section 6 shall be cumulative and
shall be in addition to all remedies now or hereafter existing at law or in equity.
6.6 Costs of Enforcement. All reasonable costs incurred by Grantee in enforcing the
terms of this Easement against Grantors, including, without limitation, costs and
expenses of suit and reasonable attorney's fees, and any costs of restoration
necessitated by Grantor's violation of the terms of this Easement shall be borne by
Grantors; provided, however, that if Grantors ultimately prevail in a judicial enforcement
action each party shall bear its own costs.
0
Big Muskego Estates Conservation Easemenl
Page 4
6.7 Forbearance. Forbearance by Grantee to exercise its rights under this Easement in
the event of any breach of any term of this Easement by Grantors shall not be deemed
or construed to be a waiver by Grantee of such term or of any subsequent breach of the
same or any other term of this Easement or of any of Grantee's rights under this
Easement. No delay or omission by Grantee in the exercise of any right or remedy upon
any breach by Grantors shall impair such right or remedy or be construed as a waiver
6.8 Waiver of Certain Defenses. Grantors hereby waive any defense of laches,
estoppel, or prescription.
6.9 Acts Beyond the Grantor's Control. Nothing contained in this Easement shall by
construed to entitle Grantee to bring any action against Grantors for any injury to or
change in the Property resulting from causes beyond Grantor's control, including,
without limitation, fire, flood, storm, and earth movement, or from any prudent action
taken by Grantors under emergency conditions to prevent, abate, or mitigate significant
injury to the Property resulting from such causes.
SECTION 7 Access. No right of access by the general public to any portion of the
Property is conveyed by this Easement.
SECTION 8. Costs, Liabilities, Taxes, and Environmental Compliance.
8.1 Costs, Legal Requirements, and Liabilities. Grantors retain all responsibilities and
shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep,
and maintenance of the Property. including the maintenance of adequate liability
insurance coverage. Grantors remain solely responsible for obtaining any applicable
governmental permits and approvals for any construction or other activity or use
permitted by this Easement, and all such construction or other activity or use shall be
undertaken in accordance with all applicable federal, state, and local laws, regulations,
and requirements. Grantors shall keep the Property free of any liens arising out of any
work performed for, materials furnished to, or obligations incurred by the Grantors.
8.2 Taxes. Grantors shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by
competent authority (collectively "taxes"), including any taxes imposed upon, or incurred
as result of, this Easement, and shall furnish Grantee with satisfactory evidence of
payment upon request.
8.3 Representations and Warranties. Grantors represent and warrant that, afler
reasonable investigation and to the best of their knowledge:
(a) No substance defined, listed, or otherwise classified pursuant to any federal, state,
or local law, regulation, or requirements as hazardous, toxic, polluting, or otherwise
contaminating to the air, water, or soil, or in any way harmful or threatening to
human health or the environment exists or has been released, generated, treated,
stored, used, disposed of, deposited, abandoned, or transported in, on, from, or
across the Property;
(b) There are not now any underground storage tanks located on the Property,
whether presently in service or closed, abandoned, or decommissioned, and no
underground storage tanks have been removed from the Properly in a manner not
Big Muskego Estates Conservation Easement
in compliance with applicable federal, state, and local laws, regulations, and
requirements:
(c) Grantors and their Property are in compliance with all federal, state, and local laws,
regulations, and requirements applicable to the Property and its use;
(d) There is no pending or threatened litigation in any way affecting, involving, or
relating to the Property; and
(e) No civil or criminal proceedings or investigations have been instigated at any time
or are now pending, and no notices, claims, demands, or orders have been
received, arising out of any violation or alleged violation of, or failure to comply
with, any federal state, or local, regulation, or requirement applicable to the
Property or its use, nor do there exist any facts or circumstances that Grantors
might reasonably expect to form the basis for an such proceedings, investigations,
notices, claims, demands, or orders.
8.4 Remediation. If at any time, there occurs, or has occurred, a release in, on, or about
the Property of any substance now or hereafter defined, listed, or otherwise classified
pursuant to any federal, state, or local la, regulation, or requirement as hazardous, toxic,
polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or
threatening to human health or the environment, Grantors agree to take all steps
necessary to assure its containment and remediation. including any cleanup that may be
required, unless the release was caused by the Grantee, in which case the Grantee shall
be responsible therefore.
8.5 Control. Nothing in this Easement shall be construed as giving rise, in the absence
of a judicial decree, to any right or ability in Grantee to exercise physical or managerial
control over the day-to-day operations of the Property, or any of the Grantor's activities
on the Property. or otherwise to become an operator with respect to the Property within
the meaning of The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA).
8.6 Hold Harmless. Grantors hereby release and agree to hold harmless, indemnify and
defend Grantee and its members, directors, officers, employees, agents, and contractors
and the heirs, personal representatives, successors, and assigns of each of them
(collectively "Indemnified Parties") from and against any and all liabilities, penalties,
fines, charges, costs, losses, damages, expenses, causes of action, claims, demands,
orders, judgments, or administrative actions, including, without limitation, reasonable
attorney's fees, arising from or in any way connected with (1) injury to or death of any
person, or physical damage to any property, resulting from an act, omission, condition,
or other matter related to or occurring on or about the Property, regardless of cause,
unless, due solely to the negligence of any of the Indemnified Parties; (2) the violation or
alleged violation of, or other failure to comply with, any state, federal, or local law,
regulation, or requirement, including, without limitation, CERCLA, by any person other
than any of the Indemnified Parties, in any way affecting, involving, or relating to the
Property; (3) the presence or release in, on, from, or about the Property, at any time, of
any substance no or hereafter defined, listed, or otherwise classified pursuant to any
federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or
otherwise contaminating to the air, water, soil, or in any way harmful or threatening to
human health or the environment, unless caused solely by any of the Indemnified 0
Big Muskego Estates Conservation Easement
0 Parties; and (4) the obligations, covenants, representations, and warranties of
paragraphs 8.1 through 8.5.
SECTION 9. Extinguishment and Condemnation
9.1 Extinguishment. If circumstances arise in the future that render the purpose of this
Easement impossible to accomplish, this Easement can only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction. The amount of the proceeds to which grantee shall be entitled, after the
satisfaction of prior clams, from any sale, exchange, or involuntary conversion of all or
any portion of the Property subsequent to such termination or extinguishment, shall be
the stipulated fair market value of the Easement, or proportionate part thereof, as
determined in accordance with paragraph 9.2.
9.2 Valuation. This Easement constitutes a real properly interest immediately vested in
Grantee, which, for the purposes of paragraph 9.1. the parties stipulate to have a fair
market value determined by multiplying (1) the fair market value of the Property
unencumbered by the Easement (minus any increase in value after the date of this grant
attributable to improvements) by (2) xly which is the ratio of the value of the Easement at
the time of this grant to the value of the Property, without deduction for the value of the
Easement, at the time of this grant.
9.3 Condemnation. If all or any part of the Property is taken by exercise of the power of
eminent domain or acquired by purchase in lieu of condemnation, whether by public,
corporate, or other authority, so as to terminate this Easement, in whole or in part,
Grantors and Grantee shall act jointly to recover the full value of the interest in the
Property subject to the taking or in lieu purchase and all direct or indirect damages
resulting therefrom. All expenses reasonably incurred by Grantors and Grantee in
connection with the taking or in lieu purchase shall be paid out of the amount recovered.
Grantee’s share of the balance of the amount recovered shall be determined by
multiplying hat balance by the ratio set forth in paragraph 9.2
9.4 Application of Proceeds. Grantee shall use any proceeds received under the
circumstances described in this Section 9 in a manner consistent with its conservation
purposes, which are exemplified by this grant.
SECTION IO. Assignment. This Easement is transferable. Grantee may assign its
rights and obligations to any successor authorized to acquire and hold conservation
easements. As a condition of such transfer, Grantee shall require that the conservation
purpose that this grant is intended to advance continue to be carried out. Grantee
agrees to give written notice to Grantors of an assignment at least thirty (30) days prior
to the date of such assignment. The failure of Grantee to give such notice shall not affect
the validity of such assignment nor shall it impair the validity of this Easement or limit its
enforceability in any way.
SECTION 11 Subsequent Transfers. Grantors agree to incorporate the terms of his
Easement by reference in any deed or other legal instrument by which they divest
themselves of any interest in all or a portion of the Property, including, without limitation,
a leasehold interest. Grantors further agree to give written notice to the date of such
transfer of any interest at least thirty (30) days prior to the date of such transfer The
0
0
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Page 7
failure of Grantors to perform any act required by this paragraph shall not impair the
validity of this Easement or limit its enforceability in any way.
SECTION 12. Estoppel Certificates. Upon request by the Grantors, Grantee shall
within thirty (30) days execute and deliver to Grantors, or to any party designated by
Grantors, any document, including an estoppel certificate, which certifies. to the best of
the Grantee's knowledge, Grantor's compliance with any obligation of Grantors
contained in this Easement or otherwise evidences the status of this Easement. Such
certification shall be limited to the condition of the Property as of Grantee's most recent
inspection. If Grantor's request more current documentation, Grantee shall conduct and
inspection, at Grantor's expense, within thirty (30) days of receipt of Grantor's written
request therefore.
SECTION 13. Notices. Any demand, notice, request, consent, approval, or
communication that either party desires or is required to give to the other shall be in
writing and either served personally or sent by first-class mail, postage prepaid,
addressed as follows:
To Grantors: Towne Realty, Inc.
710 North Plankinton Avenue
Milwaukee, WI 53203
To Grantee: City of Muskego
P 0. Box 749
Muskego, WI 53150
Or to such other address as either party from time to time shall designate by written
notice to the other
SECTION 14. Recordation. Grantee shall record this instrument in a timely fashion in
the official records of Waukesha County, Wisconsin, and may re-record at any time as
may be required to preserve its rights in this Easement.
SECTION 15. General Provisions.
15.1 Controlling Law. The interpretation and performance of this Easement shall be
governed by the laws of the State of Wisconsin.
15.2 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of the grant to effect
the purpose of this Easement and the policy and purpose of The City of Muskego. If any
provision in this instrument is found to be ambiguous, an interpretation consistent with
the purpose of this Easement that would render the provision valid shall be favored over
any interpretation that would render it invalid.
15.3 Severability. If any provision of this Easement, or the application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of this
Easement. or the amlication of such Drovision to Dersons or circumstance other that 0 those as to which it is found to be inialid. as the base may be, shall not be affected
thereby.
..
Big Muskego Estates Conservation Easement
Page 8
15.4 Entire Agreement. This instrument sets forth the entire agreement of the parties
with respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
15.5 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
15.6 Joint Obligation. The obligations imposed by this Easement upon Grantors shall
be joint and several.
15.7 Successors. The covenants, terms, conditions, and restrictions of this Easement
shall be binding upon, and inure to the benefit of, the parties hereto and their respective
personal representatives, heirs, successors, and assigns and shall continue as a
servitude running in perpetuity with the Property. The terms "Grantors" and "Grantee",
wherever used herein, and pronouns used in place thereof, shall include, respectively,
the above named Grantors and their personal representatives, heirs, successors, and
assigns, and the above named Grantee and its successors and assigns.
15.8 Termination of Rights and Obligations. A party's rights and obligations under this
Easement terminate upon transfer of the party's interest in the Easement or Property,
except that liability for acts or omission occurring prior to transfer shall survive transfer,
15.9 Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect
upon construction or interpretation.
15.10 Counterparts. The parties may execute this instrument in two or more
counterparts. which shall, in the aggregate, be signed by both parties; each counterpart
shall be deemed an original instrument as against any party who has signed it. In the
event of any disparity between the counterparts produced, the recorded counterpart
shall be controlling.
Big Muskego Estates Conservation Easement
Page 9
IN WITNESS HEREOF, Subdivider has caused this Agreement to be signed by its
appropriate officers and their seals to be hereunto affixed in duplicate original
counterparts on the date and year first written above.
A. Towne Realty, Inc.
By:
STATE OF WISCONSIN ) SS
WAUKESHA COUNTY )
PERSONALLY came before me this ~ day of -2002, of Towne
acknowledged the same.
Realty Inc. , to me known to be the person who executed the foregoing instrument and
Notary Public-State of Wisconsin
My Commission Expires
This document drafted by:
Brian D. Turk
Director of Planning
City of Muskego
PO Box 749
Muskego. WI 53150