CCR2011006-Agreement
Zlensky CSM
Owner’s Agreement
Document Title
Document Number
Legal Description:
A part of the NE 1/4 of the SW 1/4 of Section 24, T5N, R20E,
in the City of Muskego, Waukesha County, Wisconsin,
Bounded and described as follows: Commencing at the west
quarter corner of Section 24; THENCE N87°32'30"E along the
north line of the SW 1/4 of said Section 24; 1457.56 feet; to
the POINT OF BEGINNING; THENCE continuing
N87°32'30"E along said north line, 729.03 feet; THENCE
S02°27'30"E, 330.00 feet; THENCE S87°32'30"W, 734.48
feet ; THENCE N01°30'43"W, 330.05 feet to the POINT OF
BEGINNING. Containing 219,601 square feet or 5.05 acres,
Recording Area
more or less.
Name and Return Address
City of Muskego
Com. Dev. Dept.
P.O. Box 749
Muskego, WI 53150
Tax Key No. 2255.999
This information must be completed by the submitter: document title, name & return address, and PIN (if required). Other information such as the
granting clauses, legal description, etc. may be placed on this first page of the document or may be placed on additional pages of the document.
Note: Use of this cover page adds one page to your document and $2.00 to the recording fee.. Wisconsin Statutes, 59.517. WRDA 2/96
ZLENSKY - CITY OF MUSKEGO
Zlensky CSM OWNER'S AGREEMENT
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This Agreement, made this ___ day of _____, 2010 by and between Orlo Zlensky (the "Owner") and the City
of Muskego, a municipal corporation of the State of Wisconsin, located in Waukesha County, (the "City").
W I T N E S S E T H
WHEREAS, the Owner has submitted for approval by the City a Certified Survey Map for Zlensky (the
“Subdivision”), a part of the lands described as:
A part of the NE 1/4 of the SW 1/4 of Section 24, T5N, R20E, in the City of Muskego, Waukesha County,
Wisconsin, Bounded and described as follows: Commencing at the west quarter corner of Section 24;
THENCE N87°32'30"E along the north line of the SW 1/4 of said Section 24; 1457.56 feet; to the POINT OF
BEGINNING; THENCE continuing N87°32'30"E along said north line, 729.03 feet; THENCE S02°27'30"E,
330.00 feet; THENCE S87°32'30"W, 734.48 feet ; THENCE N01°30'43"W, 330.05 feet to the POINT OF
BEGINNING. Containing 219,601 square feet or 5.05 acres, more or less,
the CSM(s) of which will be recorded with the Register of Deeds for Waukesha County and a copy of which is
on file in the Office of the City Clerk; and
WHEREAS, The Wisconsin Statutes and Muskego Ordinances provide that as a condition of plat
approval, the governing body of the City may require that the Owner 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; and
WHEREAS, The City's Engineers, the City's Public Works Committee, Public Utility Committee and
Finance Committee have duly approved, contingent of certain other approvals, Owner's plans and
specifications for subdivision improvements, and the City's Plan Commission and Common Council have duly
approved the certified survey maps of the Zlensky property contingent in part upon the execution and
performance of this Agreement by the Owner.
NOW, THEREFORE, In consideration of the covenants herein contained, the parties hereto agree as follows:
SECTION I : PLATTING
1. This Owner’s Agreement addresses the development of a total of 4 parcels platted for single family
residential use, all being under the Provisions of Chapters 17 and 18 of the Municipal Code, and under the
auspices of the RC-3 Suburban Residence District unsewered zoning.
a) Single family parcels in this CSM shall conform to the zoning requirements of a sewered RC-3 Country
Residence District, being a minimum of 40,000 square feet in area per unit, having street yard setbacks
of 40 feet, side and rear yard offsets of 20 feet.
2. Owner shall entirely at its expense:
a) Within fourteen (14) days after approval of this Agreement by the Common Council, the Owner shall
execute this Agreement shall cause this Agreement to be recorded at the Waukesha County Register
of Deeds and shall provide City with evidence of recording.
b) Within fourteen (14) days after approval by all approving authorities and waiver of objection by all
objecting authorities, the Owner shall cause the CSM to be executed and recorded, and shall provide
City with evidence of recording.
c) Upon execution of this Agreement tender cash in the amount required herein for the construction of the
Subdivision. No construction activity may commence until this Agreement has been executed and
recorded, and the cash has been tendered.
d) Place and install monuments required by State Statute or City Ordinance.
SECTION II : PHASING
1. Owner and the City agree that final platting and the installation of public and private improvements
described in Section III shall occur in one phase.
SECTION III : IMPROVEMENTS
Owner shall entirely at its expense:
A. SANITARY SEWER:
1. Construct, install, furnish, and provide without cost to the City, a complete sanitary sewage collection
system throughout the entire Subdivision, and including off site improvements necessary to provide such
system, as approved by the City Engineer and the Public Works Committee on ___________, all in
accordance with the plans, specifications and drawings on file in the Community Development Department.
2. Complete, to the satisfaction of the City Engineer, any remaining punch list items concerning the Sanitary
Sewer System prior to the connection of any structure to the sanitary sewer systems.
3. Televise the sanitary sewer system, repair any defects as determined by the City Engineer, and supply
video tape to the City of Muskego, and clean all sewer lines prior to the issuance of building permits, and
acceptance of improvements by the City.
F.B. EROSION CONTROL MEASURES:
1. Submit to the City, an application for a Land Disturbing Permit in accordance with the Erosion Control Plan
as approved in accordance with the requirements of Section 29.06 of the City's Erosion Control Ordinance
by the City Engineer or his designee and Public Works Committee on __________ and in accordance with
the plans and specifications on file in the Community Development Department.
2. Construct, install, furnish and provide without cost to City, a complete system of Erosion Control Devices or
measures in specified areas of the Subdivision, on and off-site, in accordance with the Erosion Control
Plan as approved by the City Engineer or his designee and Public Works Committee on ______________
and in accordance with the plans and specifications on file in the Community Development Department t.
No construction or grading can begin until the City issues said permit, and no grading shall occur without a
two (2) day notice to the City.
3. Install silt fencing in conformance with the approved Erosion Control Plan prior to the grading and
construction work. Such fences shall be maintained by the Owner until such time as vegetative cover is
established in the Subdivision. Install mulching and seeding of all disturbed areas to comply with Municipal
Code Chapter 29.
SECTION IV : TIME OF COMPLETION OF IMPROVEMENTS
The improvements set forth in Section III above shall be completed by the Owner within one (1) year from
signing of this Agreement or except if an earlier date is provided for in the Agreement. If the City receives
notice of the intention to retrieve the cash deposit prior to completion of the improvements such notice shall be
considered a failure to complete improvements in accordance with this agreement and shall entitle the City to
immediately draw against the cash deposit.
Formatted: Bullets and Numbering
SECTION V : AS-BUILT CONSTRUCTION PLANS
Owner authorizes the City to prepare all necessary as-built construction plans for improvements to be
dedicated to the City. Owner agrees to reimburse the City for all costs incurred in the preparation and
distribution of as-built data, including collection of data, revisions to construction documents and upload of data
to City’s Geographic Information System, and the City may utilize Owner’s Developers Deposit account for all
charges related hereto.
Owner authorizes the City to convert digital files submitted by Owner pursuant to Section 18.32(3)(i) of the
Municipal Code of the City of Muskego and Common Council Resolution No. 196-2002 to any format deemed
necessary by the City. Owner agrees to reimburse the City for all costs incurred in said conversions and the
City may utilize Owner’s Developers Deposit account for all charges related hereto.
SECTION VI : DEDICATION AND ACCEPTANCE OF IMPROVEMENTS
Subject to all of the other provisions of this Agreement, Owner shall, without charge to the City, upon
completion of the improvements described above in Section III, unconditionally give, grant, convey and fully
dedicate the improvements to the City, its successors and assigns, forever, free and clear of all encumbrances
(except those encumbrances that may be acceptable to the City) whatever, together with and including, without
limitation because of enumeration, any and all land, buildings, structures, mains, conduits, pipe lines, plant,
machinery, equipment, appurtenances and hereditaments which may in any way be a part of or pertain to such
improvements and together with any and all necessary easements for access thereto.
Dedication shall not constitute acceptance of any improvement by the City. The City shall not accept the
dedication of any improvements which do not fully comply with City standards and specifications. Claims of
financial hardship by the Owner shall not be considered a reason for the City to accept substandard materials
or work.
At such time as all improvements are completed and acceptable as called for under this Agreement, and all
approvals have been received from regulatory agencies, such improvements shall be accepted by the City by
separate Resolution. The Resolution of Acceptance shall be recorded with the Waukesha County Register of
Deeds.
The City shall have the right to connect to or integrate other utility facilities with the improvements provided
herein without payment, award, or consent required of the Owner.
SECTION VII: INSPECTION AND ADMINISTRATIONS FEES
Owner shall pay and reimburse the City in advance of the signing of the Agreement, in accordance with
Section 18.14 of the Land Division Ordinance and Ordinance No. 909, and at times specified herein, but in any
event, no later than thirty (30) days after billing, all fees, expenses and disbursements which shall be incurred
by the City prior to and following the date hereof in connection with or relative to the construction, installation,
dedication and acceptance of the improvements covered by Section III, including without limitation by reason of
enumeration, design, engineering, preparing, checking and review of designs, plans and specifications,
supervision, inspection to insure that construction is in compliance with the applicable plans, specifications,
regulations and ordinances; and legal, administrative and fiscal work undertaken to assure and implement
such compliance. Failure to pay or reimburse the City in a timely manner may cause the City to cease all
construction inspections until such time as all anticipated or outstanding inspection and administration fees
have been satisfied.
2.
SECTION VIII: GENERAL CONDITIONS AND REGULATIONS
Municipal Codes and Ordinances: All the provisions of the City's ordinances are incorporated herein by
reference, and all such provisions shall bind the parties hereto and be a part of this Agreement as fully as if set
forth at length herein. This Agreement and all work and improvements required hereunder shall be performed
and carried out in strict accordance with and subject to the provisions of said ordinances.
SECTION IX: GUARANTEES
Formatted: Bullets and Numbering
The Owner shall guarantee all improvements described in Section III, against defects due to faulty materials or
workmanship provided that such defects appear within a period of one (1) year from the date of acceptance.
The Owner shall pay for any damages to City property resulting from such faulty materials or workmanship.
This guarantee shall not be a bar to any action the City might have for negligent workmanship or materials.
Wisconsin law on negligence shall govern any such action.
SECTION X : GENERAL INDEMNITY
In addition to, and not to the exclusion or prejudice of, any provisions of this Agreement or documents
incorporated herein by reference, Owner shall indemnify and save harmless, and agrees to accept tender of
defense and to defend and pay any and all reasonable legal, accounting, consulting, engineering and other
expenses relating to the defense of any claim asserted or imposed upon the City, its officers, agents, and
employees, and independent contractors growing out of this Agreement as stated above by any party or
parties except those claims asserted by Owner against the City, its officers, agents and employees in an effort
to enforce this Agreement. The Owner shall also name as additional insured on its general liability insurance
the City, its officers, agents, and employees, and any independent contractors hired by the City to perform
service as to this Subdivision and give the City evidence of the same upon request by the City.
a) Hold Harmless. The Owner shall indemnify and hold harmless the City, its officers, agents,
independent contractors, and employees from and against all claims, damages, losses, and expenses,
including attorney’s fees arising out of or resulting from the performance of the Work, providing that any
such claim, damage, loss, or expense (i) is attributable to bodily injury, sickness, disease, or death, or
to injury to or destruction of tangible property (other than the Work itself) including the loss of use
resulting therefrom, and (ii) is caused in whole or in part by any negligent act or omission of the Owner,
its officers, agents, independent contractors, and employees or anyone for whose acts any of them may
be made liable, regardless of whether or not it is caused in part by a party indemnified herein. In any
and all claims against the City, its officers, agents, independent contractors, and employees by the
Owner, its officers, agents, independent contractors, employees, and anyone directly or indirectly
employed by any of them or anyone for whose acts any of they may be held liable, the indemnification
obligation under this section shall not be limited in any way by any limitation on the amount or type of
damages, compensation, or benefits payable by or for the Owner, its officers, agents, independent
contractors, employees under Workers’ Compensation Acts, disability benefit acts, or other employee
benefit acts.
b) 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.
c) Indemnification for Environmental Contamination. The Owner shall indemnify, defend, and hold the City
and its officers, agents, independent contractors, and employees harmless from any claims, judgments,
damages, penalties, fines, costs, or loss (including reasonable fees for attorneys, consultants, and
experts) that arise as a result of the presence or suspected presence in or on the real property
dedicated or conveyed to the City by, under, pursuant to, or in connection with the Plat and this
Agreement (including but not limited to street right-of-way) of any toxic or hazardous substances arising
from any activity occurring prior to the acceptance of all improvements. Without limiting the generality
of the foregoing, the indemnification by the Owner shall include costs incurred in connection with any
site investigation or any remedial, removal, or restoration work required by any local, State, or Federal
agencies because of the presence or suspected presence of toxic or hazardous substances on or
under the real property, whether the soil, groundwater, air, or any other receptor. The City agrees that
it will immediately notify Owner of the discovery of any contamination or of any facts or circumstances
that reasonably indicate that such contamination may exist in or on the real property. Upon receipt of
notice from the City or other entities, Owner shall investigate and rectify conditions which indicate the
presence of or suspected presence of contamination on the subject property as identified by local,
state, or federal agencies in order to comply with applicable laws.
d) Owner or owner’s contractor, shall, at its expense, obtain and carry comprehensive general liability
insurance with combined single limits of at least One Million Dollars ($1,000,000.00) for one person and
at least Five Million Dollars ($5,000,000.00) per occurrence, and at least One Million Dollars
($1,000,000.00) property damage (or such higher amounts as the City shall from time to time deem
reasonable). Such policy shall cover both Owner and the City and its agents, employees, and officials,
and all insurers shall agree not to cancel or change the same without at least thirty (30) days written
notice to the City. A certificate of Owner’s insurance shall be furnished to the City upon execution of this
Agreement. Each such policy shall provide that no act or default of any person other than the City or its
agents shall render the policy void as to the City or effect the City’s right to recover thereon.
SECTION XI: AGREEMENT FOR BENEFIT OF PURCHASERS:
The Owner shall agree that in addition to the City's rights herein, the provisions of this Agreement shall be for
the benefit of the purchaser of any lot or any interest in any lot or parcel of land in the Subdivision. Further, that
the sale of any lot or parcel shall not release the Owner from completing the work provided for under this
Agreement, by applicable Ordinances and as set forth in the plans and specifications on file in the City Building
and Engineering Department.
SECTION XII: CONSTRUCTION PERMITS, ETC.
The City shall, within its authority:
1. Issue such permits, adopt such resolutions, and execute such documents as may be necessary to permit
the Owner to construct the improvements in accordance with the plans and specifications called for by this
Agreement, upon Owner's compliance with any deposit provisions or other requirements of the applicable
ordinances or regulations.
2. Furnish the Owner such permits or easements as may be required to enter upon and install the previous
described improvements in any public street or public property.
3. Cooperate with the Owner in obtaining similar permits, resolutions and documents as may be necessary
from other authorities having jurisdiction in the premises.
4. Make available to the Owner or its nominee, successors or assigns, permits for the construction of single
family residences on the 5 parcels platted for single family residential use subject to the provisions of
Section XIV and this Agreement.
SECTION XIII: BUILDING AND OCCUPANCY PERMITS:
It is expressly understood and agreed that no building permits or occupancy permits shall be issued for any
homes until the Director of Engineering and Building has determined that:
1. Negative balance in Developer's Deposit is satisfied unless otherwise authorized by the Planning Director.
2. That all improvements as per this agreement has been completed.
SECTION XIV: FINANCIAL GUARANTEES:
1. LETTER OF CREDIT: Concurrent with the execution of the Agreement by the City, the Owner shall file
with the City a Letter of Credit, in the City Attorney approved form, setting forth terms and conditions in the
amount of $26,952.00, which amount shall be approximately 120% of the estimated cost of improvements,
as a guarantee that the required plans and improvements will be completed by the Owner and its
subcontractors no later than one (1) year from signing of the Agreement, except if another date is provided
within this Agreement, as a guarantee that all obligations to the subcontractors for work on the Subdivision
are satisfied and as a guarantee that all obligations of the Agreement are satisfied specifically including,
but not limited to, prevailing wage rates, hours of labor and public bidding. If the City receives notice of the
intention to terminate the Letter of Credit prior to compliance with all obligations of this Agreement, such
notice shall be considered a failure to comply with the obligations of the Agreement and shall entitle the
City to immediately draw against the Letter of Credit. Instead of a Letter of Credit, Owner may deposit
cash, a certified check or the equivalent in the same amount pursuant to the terms and conditions as set
forth in the Agreement.
a) Invoices: Invoices documenting public improvements addressed and not addressed in the Letter of
Credit, but attributable to the subject development shall be provided to the City.
b) Reduction Of Letter Of Credit Balance: The Owner shall provide Director of Engineering and Building
with a written request accompanied by: invoices for work completed for which a release is being
requested, breakdown of invoices in the format of the Public Improvement Cost Breakdown form, and
signed original lien waivers for all work which is subject of the release request. The Director of
Engineering and Building will process all requests in accordance with policies adopted by the Finance
Committee, as may be amended from time to time.
2. DEVELOPER'S DEPOSIT: The Owner shall maintain a $500.00 balance in the Developer's Deposit. No
reduction of the Cash Deposit balance shall be entertained until the Developer's Deposit is satisfied unless
otherwise authorized by the Common Council following a recommendation of the Finance Committee.
3. PRESERVATION OF ASSESSMENT RIGHTS:
a) Waiver of Notice. In addition to other remedies provided to the City by this Agreement, the City shall
have the right, without notice or hearing, to impose special assessments for any amount to which the
City is entitles by virtue of this Agreement relating to the improvements and any other obligations under
this Agreement including, but not limited to, prevailing wage rates, hours of labor and public bidding.
This provision constitutes the Developer’s consent to the installation by the City of all improvements
required by this Agreement and constitutes the Developer’s waiver of notice and consent to all special
assessment proceedings as described in Section 66.0703(7)(b), Wis. Statutes.
b) Remedies not exclusive. The City may use any other remedies available to it under the Agreement or
in law or equity in addition to, or in lieu of, the remedies provided herein.
SECTION XV: PREVAILING WAGE RATES AND HOURS OF LABOR
If any aspect of the construction of the Improvements involves a project of public works that is regulated by
Wisconsin Statutes Section 66.0903 or 66.0904, then (1) The Developer shall obtain any necessary prevailing
wage rate determination for the project: and (2) The Developer shall pay wage rates not less than the
prevailing hourly wage rate as described and regulated pursuant to such statutes and regulated laws; and (3)
The Developer shall comply with the prevailing hours of labor as described and regulated pursuant to such
statutes and related laws; and (4) The Developer shall fully comply with the reporting obligations, and all other
requirements of such laws; and (5) The Developer shall ensure that the Developer’s subcontractors also fully
comply with such laws and (6) The Developer shall file the documentation required by Wisconsin Statutes
Section 66.0903(9)b and 66.0903(9)c and any other documentation the City deems reasonably necessary.
The Developer’s General indemnity obligation of this Agreement shall apply to any claim that alleges that work
contemplated by this Agreement is being done, or has been done, in violation of prevailing wage rates,
prevailing hours of labor, or Wisconsin Statutes Section 66.0903 or 66.0904, for any work arising out of this
Agreement.
SECTION XVI : PARTIES BOUND:
Owner 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 streets improvements, drive and parking areas, water facilities, drainage
facilities, ditches, landscaping and all other improvements shall be the Owners. The fact that the City or its
engineers, or its attorney, or its staff may approve a specific project shall not constitute a waiver, or relieve the
Owner from ultimate responsibility for the design, performance, and function of the Development and related
infrastructure.
SECTION XVII : AMENDMENTS AND ASSIGNMENT:
Owner shall not assign this Agreement without the written consent of the City. The City and the Owner, by
mutual consent, may amend this Agreement, by written agreement between the City and the Owner.
SECTION XVIII : NOTICES AND CORRESPONDENCE
Unless otherwise 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: To Owner:
Planning Department Orlo Zlensky
City of Muskego S91 W13253 Boxhorn Dr
POB 749 Muskego, WI 53150
W182 S8200 Racine Avenue (414) 425-4526 home
Muskego, WI 53150-0749 (414) 460-4893 mobile
(262) 679-4136
(262) 679-5614 facsimile
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 XIX : PARTIES TO THE AGREEMENT
IN WITNESS HEREOF, Owner 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. DEVELOPER
By:
Orlo Zlensky, Owner/Developer
STATE OF WISCONSIN )
) SS
WAUKESHA COUNTY )
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PERSONALLY came before me this _____ day of ____, 2010 Orlo Zlensky, Owners/Developers, to me
known to be the persons who executed the foregoing instrument and acknowledged the same.
Notary Public-State of Wisconsin
My Commission Expires
IN WITNESS HEREOF, the City 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.
B. CITY OF MUSKEGO:
BY:
John R. Johnson, Mayor
BY:
Sharon Mueller, City Clerk-Treasurer
STATE OF WISCONSIN )
) SS
WAUKESHA COUNTY )
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PERSONALLY came before me this ___ day of _____, 2010, the above named John R. Johnson, Mayor, and
Sharon Mueller, 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
nd
meeting on the _____ day of _____, 2010.
Notary Public-State of Wisconsin
My Commission Expires
CERTIFICATION
This is to certify that the foregoing is a true and correct copy of the Owner's Agreement for the Zlensky CSM,
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Muskego, Wisconsin, as entered into on the ___ day of _____, 2010, by and between Orlo Zlensky and the
nd
City Of Muskego, pursuant to the authorization by the Common Council from their meeting on the _____ day
of _____, 2010.
BY THE COMMON COUNCIL
________________________
Sharon Mueller, City Clerk-Treasurer City Clerk/Treasurer
SUBSCRIBED AND SWORN TO BEFORE ME
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This _____ day of _____, 2010.
My commission expires
This instrument drafted by Jeff Muenkel, Community Development Director
City of Muskego PO Box 749 Muskego, WI 53150