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HomeMy WebLinkAboutPurchase & Sale of WPS PropertyCONTRACT OF PURCHASE AND SALE . THIS CONTRACT OF PURCHASE ANO~ ~_AL~ (hereinafter "Contract") is made and effective as of the 3i day offbeat, r, 200,3' (the "Effective Date"), by and between the City of Oshkosh, Wisconsin ("Buyer") and Wisconsin Public Service Corporation ("Seller"). WlTNESSETH, THAT: WHEREAS, Seller owns that certain real property, including all improvements, fixtures and building equipment, together with all privileges, rights, easements and appurtenances belonging thereto (collectively the "Property"), located in the City of Oshkosh, County of Winnebago, State of Wisconsin, as depicted on Exhibit A attached hereto and hereby incorporated herein; and WHEREAS, Buyer desires to purchase the Property from Seller, and Seller is willing to sell and convey the same to Buyer, on and subject to the terms, covenants and conditions hereinafter set forth. NOW, TI-IEREFORE, in consideration of the premises, the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed by and between the undersigned, each being legally advised in the premises and intending to be legally bound hereby, as follows: Purchase/Sale. Buyer hereby agrees to purchase and acquire the Property from Seller, and Seller hereby agrees to sell and convey the Property to Buyer, for and in consideration of, and upon and subject to, the terms, covenants and conditions hereinafter set forth. Purchase Price. The purchase price (hereinafter referred to as the "Purchase Price") for the Property is and shall be Nine Hundred Forty Thousand and no/100 Dollars ($940,000.00) payable by wire transfer to the account of Seller or, at Seller's option, by cashier's check, payable to the order of Seller, at Closing (as hereinafter defined). Prorations. Net general real estate taxes imposed upon or against the Property for the year of Closing shall be prorated as of Closing inclusive of said date based upon the net general taxes for the current year, if known, otherwise, upon the net general taxes for the preceding year. Seller shall pay prior to Closing ail general real estate taxes attributable to any time period prior to the year of Closing. Water, sewer and other utility charges, if any, shall be prorated as of Closing. All expenses and taxes for the day of Closing shall accrue to Buyer. Special assessments for any work on er relating to or benefiting the 'Property commenced or levied before Closing, if any, shall be paid by Seller at or prior to Closing. Seller shall pay the Wisconsin real estate transfer fee. Conveyance. At Closing, Seller shall sell and convey to Buyer fee simple, good, marketable and insurable title to the Property, free and clear of all liens and encumbrances 001.1372021.14 except real estate taxes not yet due or payable; municipal and zoning ordinances; easements, covenants and restrictions and other matters of record (provided Buyer may object to any instrument pursuant to the procedures set forth in Section 5 below if it prevents or materially impairs Buyer's intended use as a park); the easements made pursuant to this Contract; rights of the public for areas lying below the highwater mark of the Fox River; filled or submerged lands riparian fights; and matters that would be disclosed by an accurate survey (hereinafter referred to as the "Permitted Exceptions"), by delivery of a fully executed and acknowledged warranty deed (hereinafter referred to as the "Deed"), in customary form. Title Insurance; Survey. Seller shall provide Buyer, not more than fifteen (15) days after the Effective Date, with a title insurance commitment (the "Title Commitment"), issued by a title company licensed in Wisconsin (the "Title Company"), pursuant to which the Title Company shall agree to issue to Buyer a standard ALTA 1992 owner's policy of title insurance in the full amount of the Purchase Price, insuring title to the Property, together with copies of all easements, covenants, restrictions and other encumbrances affecting the Property. The title commitment should obligate the Title Company to issue a policy that will guarantee Seller's title to be in the condition called for under Section 4 (without standard exceptions) as of the Closing. Seller shall also deliver to Buyer within thirty (30) days of the Effective Date an ALTA survey dated no earlier than the Effective Date (the "Survey"). The cost of the Survey shall be shared equally by Buyer and Seller. Buyer shall have ten (10) days from receipt to review and object to the condition of title evidenced by the Title Commitment or Survey. If any such objection is made, Seller shall have thirty (30) days to correct such condition. If the condition is not acceptable to Buyer and Seller is not able to correct it within thirty (30) days from the date of written objection thereto, this Contract shall, at the option of Buyer, be terminated, and Buyer and Seller shall have no further obligation or responsibility hereunder. Condition of Property and Other Property Matters. Disclaimer. Buyer acknowledges that it will have ample opportunity to inspect the Property and has conducted detailed reviews of the land and all improvements thereon, and the Purchase Price reflects the value of the Property in its current state and condition. As part of this review, Buyer has retained the services of an environmental engineering expert and an environmental attorney and has reviewed the reports and studies prepared by Seller that have been filed with the Wisconsin Department of Natural Resources ("DNR"). Buyer further acknowledges that it is relying on such investigations and the reviews and the advice of its engineering environmental and legal experts in determining whether to enter into this Contract and has not relied on any statements, warranties or representations of Seller or its agents or employees with respect thereto. Therefore, except as otherwise provided in this Contract, the Property is being sold in an as is and where is condition, without any oral or written warranties or representations, expressed or implied, whether by operation of law or otherwise, as to condition, location or otherwise~ including but not limited to environmental matters. Buyer's sole right against Seller relating to the condition of the Property 001.1372021.14 2 or environmental contamination on the Property shall be and is expressly limited to those rights set forth in this Contract. Buyer further represents and warrants that Buyer has knowledge and expertise in financial and business matters that enable Buyer to evaluate the merits and risks of the transaction contemplated by this Contract and that Buyer is not in any disparate bargaining position. Buyer acknowledges and agrees that it has been given or will be given before Closing full opportunity to inspect and investigate each and every aspect of the Property, either independently or through agents of Buyer's choosing, including, without, limitation the condition of the Property. Seller has provided copies of Natural Resource Technology, Inc., February 26, 2003, Remedial Action Documentation Report, Former Manufactured Gas Plant Site, Oshkosh, Wisconsin. Further, Seller shall make available to Buyer and its representatives, during Seller's business hours at Seller's Green Bay office located at the address set forth in Section 13 below, environmental reports prepared for the Property within three (3) years of the Effective Date, and Buyer and its representatives shall have the right to copy such reports. Buyer's Release. As part of the consideration, subject to the exceptions set forth below, Buyer hereby releases any and ali claims of whatever kind, whether known or unknown, foreseen or unforeseen, contingent or mature, arising out of or related to the environmental contamination of whatever kind currently or in the past located on or beneath the Property or Court Street or emanating from the Property or Court Street without regard as to when (past, present or future) the contamination may or may not have migrated from the Property or Court Street (the "Release"). The exceptions to the Release are as follows: (1) claims that are Seller's responsibility under this Contract or that are due to Seller's breach of any of the terms and conditions of this Contract or Declaration of Easement (as hereinafter defined); or (2) claims that are due to the activities or inactions of Seller (or those acting on behalf of Seller) that occur or take place after the Effective Date; or (3) claims for contribution to the extent such a claim is allowed under any of the following environmental taws: the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.) ("CERCLA"); the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.) ("KCRA"); the Clean Water Act (33 U.S.C. Section 1251, et seq.) ("CWA"); the Oil Pollution Act of 1990 (33 U.S.C. Sections 2701, et seq.) ("OPA")); and/or any amendments to the foregoing, including but not limited to the Superfund Amendments and Reorganization Act of 1986 (100 Stat. 1613 ) ("SARA") (collectively, the "Federal Environmental Laws") (hereinafter, "Contribution Claim"), if but only if: 001.1372021.14 3 (a) the Contribution Claim is based on and is the result of a civil action, administrative proceeding, or unilateral order brought or issued by the United States under one or more of the Federal Environmental Law(s) against Buyer, and such action, proceeding or order imposes or seeks to impose upon the Buyer (i) the obligation to undertake removal or remediation, (ii) liability for response costs for a removal or remediation performed by the United States and/or (iii) natural resource damages (hereinafter "Federal Claim"); and (b) the Contribution Claim is directly related to Sediment Issues (as defined in Section 6.f(3) below) that exist as of the date of Closing or to soil, subsurface environmental contamination or groundwater conditions (that are within the scope of Sections 6.f(1) and 6.f(2) below) that exist as of the date of Closing; and (c) to the extent the Contribution Claim relates to soil, subsurface contamination or groundwater conditions, the Contribution Claim is properly asserted as set forth in Section 13 below before receipt by Seller of a full or partial Voluntary Party Liability Exemption ("VPLE") Certificate of Completion ("Certificate") under Section 292.15, Wis. Stats., and such Certificate addresses both the contaminated media (soil, subsurface contamination and/or groundwater conditions) and the Property (or portion thereof) that is the subject of the Contribution Claim. To the extent the Certificate does not address all of the Property or does not address all of the contaminated media which forms the basis of the Contribution Claim, this exception to the Release shall only apply to allow a Contribution Claim that relates to contaminated media or portions of the property not addressed by the Certificate. With respect to any Contribution Claim, nothing in this Contract (including, but not limited to Seller's release of Buyer in Section 6.c below) shall be interpreted or construed to (i) waive or otherwise limit any defense, factual or legal, Seller may have to such Contribution Claim brought against it by Buyer, or (ii)bar any counterclaims for contribution, to the extent authorized by law, by Seller against Buyer. Further, this exception to the Release is to be narrowly construed and is not intended to allow Buyer to pursue any private right of action against Seller under any federal law unless expressly allowed by the above exception. Seller's Release. As part of the consideration, subject to the exceptions set forth below, Seller hereby releases any and all claims of whatever kind, whether known or unknown, foreseen or unforeseen, contingent or mature, arising out of or related to the environmental contamination of whatever kind currently or in the past located on or beneath the Property or Court Street or emanating from the Property or Court Street or that migrated onto the Property or Court Street, which contamination was caused by Buyer or associated with property owned by Buyer, 001.1372021.14 4 without regard as to when (past, present or future) the contamination may or may not have migrated from the Property or Court Street (the "Seller's Release"). The exceptions to the Release are as follows: (1) claims that are Buyer's responsibility under this Contract or that are due to Buyer's breach of any of the terms and conditions of this Contract or Declaration of Easement (as hereinafter defined); or (2) claims that are due to the activities or inactions of Buyer (or those acting on behalf of Buyer) that occur or take place after the Effective Date; or (3) claims for contribution under 42 U.S.C. 9 9613(f)(1) if, but only if, the claim for contribution is solely based on and is the result ora Federal Claim asserted or brought against Buyer, and as a result thereof, Buyer asserts or brings a contribution claim against Seller; provided, however, nothing in this Contract (including but not limited to Buyer's release of Seller in Section 6.b above) shall be deemed to waive any defense, factual or legal, Buyer may have to any claims for contribution brought against it by Seller or bar any counterclaims for contributions by Buyer against Seller. Seller has reviewed the foregoing release and obtained legal advice and understands that the release bars Seller from pursuing environmental claims of whatever kind relating to the Property or Court Street and the activities conducted thereon by Buyer or associated with contamination caused by Buyer or associated with Property owned by Buyer, except as expressly set forth in this Contract. Without limiting the above but except as otherwise provided for in this Contract, Seller on behalf of itself and its successors and assigns waives any tights to recover from, and forever releases and discharges, Buyer, Buyer's affiliates, partners, shareholders, directors, officers, employees, local governmental unit, elected and appointed public officials as defined in Section 292.11(9)(e), Wis. Stats., and agents of Buyer and its successors and assigns (collectively the "Buyer Related Parties) from any and all demands, claims, legal or administrative proceedings, losses, liabilities, damages, penalties, fines, liens, judgments, costs or expenses whatsoever (including without limitation attorney and engineering fees and costs), whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise on account of or in any way connected with the Property or Court Street pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. 99 9601, et seq.) (except as provided above), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §9 6901, et seq.), the Clean Water Act (33 U.S.C. §9 1251 et seq.), the Safe Drinking Water Act (14 U.S.C. §§ 1801, et seq.) and the Toxic Substances Control Act (t5 U.S.C. §9 2601 et seq.) and any similar environmental state or local statutes, regulations, rules or requirements. Intent of Releases. It is the intent of the parties to broadly construe the releases set forth in Sections 6.b and 6.c above in such a manner that (except as otherwise 001.1372021.14 5 provided in Sections 6.b and 6.c) any future claims against each other relating to environmental conditions on or migrating from or onto the Property, including Sediment Issues (as defined below), arise solely out of this Contract and not out of any other provisions of law (statutory or common) or in equity. Retained Easements. At Closing, Seller shall retain and reserve (and Buyer, at Seller's option, shall grant) the following easements: (1) A nonexclusive easement over the Property for ingress to and egress from certain real estate owned by Seller adjacent to the Property and the substation located thereon. (2) A nonexclusive easement allowing Seller the use of the Property after the Closing as a staging area, if necessary, for the sediment related project in the Fox River remediation project. (3) A nonexclusive easement allowing Seller the use of the Property after the Closing for access and other uses relating to the Seller's groundwater monitoring, collection and gradient control system. The location of the areas of the Property subject to the above-described easements is set forth on the map attached hereto as Exhibit B. The easements will be documented by a declaration of easements document (the "Declaration of Easements") in substantially the form attached hereto as Exhibit C. The Declaration of Easements includes provisions (i) prohibiting the Buyer's right to place any structures or other improvements (other than landscaping, walkways, sprinkler systems and pavement) on the areas of the Property subject to the Declaration of Easements; (ii) limiting or completely restricting access to the sediment easement area during the course of Seller's actual use of such area for any necessary sediment related activities (including preparation and staging) by anyone other than employees, agents and contractors of Seller or appropriate emergency personnel (fire, police, medical, hazardous materials), except as otherwise expressly approved in writing by Seller; (iii) otherwise regulating the use of the easement area; and (iv) relating to an indemnity by Buyer and Seller for any loss, cost, expense or damage to the other party in connection with a breach by Buyer or Seller of the rights or obligations set forth in the Declaration of Easements. Retention of Liability. (1) Soil - Surface/Subsurface. As between Buyer and Seller and subject to Buyer's responsibilities as set forth in this Section 6.f and in Section 6.h below and Seller's responsibility for Undiscovered Contamination as set forth in Section 6.f(8) below, Seller retains the liability and responsibility for any soil and subsurface environmental contamination on the Property that exist as of the date of Closing and shall address any such 001.1372021.14 6 (2) (3) (4) contamination in as manner consistent with Section 292.11 (3), Wis. Stats., and NR 700 et seq., Wis. Admin. Code. Groundwater. As between Buyer and Seller and subject to Buyer's responsibilities as set forth in this Section 6.f and in Section 6.h and Seller's responsibility for Undiscovered Contamination as set forth in Section 6.f(8) below, Seller retains the liability and responsibility for (i) any groundwater conditions on the Property or which may have migrated offthe Property, in excess of the NR 140, Wis. Admin. Code enforcement standards consistent with Section292.11(3), Wis. Stats., and NR 700, et seq., Wis. Admin. Code, and (ii) any groundwater conditions on the Property or which may have migrated off the Property, in excess of the NR 140, Wis. Admin. Code preventive action limit ("PAL") consistent with Section 292.11(3), Wis. Stats., and NR 700, et seq., Wis. Admin. Code; provided, however, that any action to address groundwater conditions in excess of the PAL shall only be required to be undertaken by Seller if such action is expressly required by DNR. For purposes of this subparagraph, Seller's responsibility and liability for groundwater conditions shall apply to (i) the groundwater conditions that exist on the Property or which have migrated from the Property, as of the date of Closing, (ii) to any groundwater conditions that continue to migrate from the Property, after the date of Closing, or (iii) to any groundwater conditions that migrate from the Property after the date of Closing, if, but only if such migration is from a groundwater condition that existed on the Property as of the date of Closing and the migration was not caused by or exacerbated by the actions of Buyer, its contractors, subcontractors, agents or employees. .Sediment. As between Buyer and Seller and subject to Buyer's responsibilities as set forth in this Section 6.f and in Section 6.h below and Seller's responsibility for Undiscovered Contamination as set forth in Section 6.f(8) below, Seller retains the liability and responsibility for contaminated sediment in the Fox River associated with or related to the Property that exist as of the date of Closing (hereinafter the "Sediment Issues") and shall address such contamination in a manner consistent with Section 292.11(3), Wis. Stats. Contact with Governmental Agencies. Except as otherwise set forth in this Contract or expressly as agreed to by Seller, Seller shall be the sole point of contact with governmental agencies with respect to the matters for which Seller has responsibility under Sections 6.f(1) to 6.f(3) above and, if applicable, Section 6.f(8) below, unless the governmental agency initiates the contact with Buyer, provided, however, that prior to responding to such contact in the situation where Buyer intends to communicate anything with respect to Sediment Issues that may adversely affect Seller, Buyer shall give Seller notice of the same and allow Seller to participate in all telephone calls and meetings with government agency relating to the same. 001.1372021.14 7 However, nothing in this Section 6.f(4) is intended to limit or prevent Buyer from (i) complying with any applicable statute, rule or regulation that requires Buyer to provide notice of any spill or release of environmental contamination on the Property that occurs after Buyer takes title to the Property, (ii) communicating with DNR on matters relating to Court Street or (iii) communicating on matters relating to Sediment Issues in a situation where Buyer will not be communicating anything that may adversely affect Seller. Seller shall provide to Buyer copies of any environmental reports and other written communications of a substantive nature relating to Seller's work in addressing the items noted in Sections 6.f(1) to 6.f(3) above and, if applicable, Section 6.f(8) below, that are submitted to DNR or any other governmental agency promptly after such items are submitted to DNR or any other agency. At Buyer's request, Seller will provide Buyer with a status report on the activities being conducted by Seller to address the items in Sections 6.f(1) to 6.f(3) above and, if applicable, Section 6.f(8) below. In the event Seller or its representatives are to engage in any oral discussions with DNR or any other governmental agency (by telephone, meetings or otherwise) that are of a substantive nature and may adversely affect the Buyer's development of a park on the Property in conformance with the conceptual plans (the "Park Plan") subnfitted to DNR in conjunction with the Assurance Letter (as defined below) or in the situation where Seller intends to communicate anything with respect to Sediment Issues that may adversely affect Buyer, Seller must notify Buyer in a reasonably timely manner prior to engaging in such discussions (such as time of telephone calls or meetings, place of meetings and topics intended to be discussed), and Buyer and/or its representatives shall be allowed to attend such telephone calls or meetings. Should Buyer seek to attend any meetings with DNR regarding Sections 6.f(1) to 6.f(3) and, if applicable, Section 6.f(8) below, Buyer shall provide reasonable prior notice to Seller, shall attend for informational purposes only and shall cooperate and not interfere with the positions or approaches advocated by Seller. Both Buyer and Seller shall take all necessary and appropriate steps to inform its consukants, agents and/or representatives of the above requirements. Cessation of Seller's Obligations: Completion of Activities. Upon receipt by Seller of a Voluntary Party Liability Exemption ("VPLE") Certificate of Completion under Section 292.15, Wis. Stats., or its successor, Seller's obligations to Buyer under Sections 6.f(1), 6.f(2), 6.f(3) and/or, if applicable, 6.f(8) of this Contract shall cease to the extent of the matters addressed in the VPLE Certificate of Completion as long as Seller's obtaining the VPLE Certificate of Completion does not prohibit or materially interfere with the use of the Property as a park according to the Park Plan. All restrictions on contacts with governmental agencies relating to the matters addressed in the VPLE Certificate of Completion shall also 001.1372021.14 8 (6) (7) cease at that time; provided, however, that the restrictions on communication relating to Sediment Issues shall continue without regard to the issuance of the VPLE Certificate of Completion. For matters not addressed in the VPLE Certificate of Completion and for which Seller has retained liability under Sections 6.f(1) to 6.f(3) above and/or, if applicable, Section 6.f(8) below, Seller's obligations shall continue unless otherwise terminated under another provision of this Contract or by written consent of Buyer. Interference bv Buyer. If Buyer violates the provisions of Section 6.f(4) above relating to contacts with DNR or the United States Environmental Protection Agency regarding matters for which Seller has responsibility under Sections 6.f(1) to 6.f(3) above and, if applicable, Section 6.f(8) below, except as otherwise provided in this Contract or with the prior written approval of Seller~ which approval will not be unreasonably withheld or delayed, Buyer understands Seller will incur significant damage with respect to the same, and Seller shall have all rights and remedies at law and in equity, including but not limited to actual damages caused thereby, injunctive relief and specific performance. Damages will include any increase in costs relating to Sediment Issues if any communications by the Buyer with the DNR involve Sediment Issues. This paragraph does not apply if the governmental agency originally initiates the contact with Buyer, provided Buyer complies with the notice and Seller participation requirements in Section 6.f(4) above. Buyer's Liability for Environmental Conditions - Buyer's Actions. Buyer acknowledges that it intends to undertake construction activities on the Property, including but not limited to, moving and excavating soil, construction of improvements and buildings and placement of utilities. Buyer agrees that it is Buyer's sole responsibility to design, construct, maintain and otherwise use the Property in such a manner that does not exacerbate any environmental contamination in which Seller is responsible under Sections 6.f(1), 6.f(2) and 6.f(3) above and, if applicable, Section 6.f(8) below or cause or create any new environmental contamination. As between Buyer and Seller, Buyer shall have liability and responsibility for (i) any new environmental contamination on, beneath or migrating from the Property (including groundwater) after the date of Closing unless such new environmental contamination is caused by actions taken by Seller or its agents, employees or contractors after the date of Closing, (ii) any exacerbation of environmental contamination (for which Seller is otherv~se responsible under Sections 6.f(1), 6.f(2) and 6.f(3) and, if applicable, Section 6.f(8) below) that occurs after the date of Closing caused by Buyer, Buyer's representatives or contractors or a third party other than Seller or a representative or contractor of Seller and (iii) to the extent Buyer elects to remove and/or dispose of any soil, groundwater or sediment in connection with any work being done by Buyer, including but 001.1372021.14 9 not limited to the construction activities, all costs associated with or related to the removal and/or disposal of any such soil, groundwater or sediment. Buyer acknowledges that it may consult with Seller in design and/or construction of any improvements on the Property. The fact that Seller may cooperate and provide advice to Buyer shall not be construed to create additional or expanded liability for Seller or limit in any way Buyer's responsibility or liability for new environmental contamination or exacerbation of existing environmental contamination. Seller' Liabilit¥ for Pre-Existing Conditions. Seller has provided to Buyer and/or made available to Buyer environmental reports on the condition of the Property. Seller has advised Buyer and Buyer acknowledges that the Property was previously used by Seller as a manufactured gas plant operation and that manufactured gas plant related wastes and contaminants are located on the Property. With respect to contamination related to Seller's manufactured gas plant operation, Buyer and Seller have allocated the liability for environmental issues as set forth above in this Contract. VC~th respect to any contamination on, beneath or migrating from the Property which is (i) not related to or associated with manufactured gas plant operations and/or not disclosed in the environmental reports relating to the Property that have been provided to or are otherv/~se available to Buyer, (ii) required to be addressed pursuant to Section 292.11(3), Wis. Stats., and/or NR 700 et seq., Wis. Admin. Code, and (iii) discovered after the date of Closing but before the issuance of a VPLE Certificate of Completion covering the environmental media (soil, groundwater or sediment) in which the contamination is discovered ("Undiscovered Contamination"), Seller shall have the liability and responsibility for addressing such Undiscovered Contamination in the manner as set forth in Section 6.f(1) to 6.f(3) above. In the event Buyer has information or knowledge that any Undiscovered Contamination exists on the Property, Buyer shall promptly notify Seller, provide access to the Property to Seller to address the Undiscovered Contamination, cooperate with Seller's environmental investigation and/or remedial action and not exacerbate the nature and/or extent of the Undiscovered Contamination. (Without limiting the foregoing, the provisions of Section 6.f(7) apply with respect to Buyer's responsibility and liability for exacerbating any Undiscovered Contamination.) If Seller, in the course of its investigation and/or remedial activities, disturbs, removes or destroys any improvements to the Property made by the Buyer pursuant to the Park Plan, Seller shall restore the Property to the extent practicable to the condition it was in prior to initiating the additional environmental work. Buyer understands and acknowledges that Seller's obligation under this Contract to address Undiscovered Contamination only applies if Buyer promptly notifies Seller of the presence of Undiscovered Contamination prior to Seller's receipt of 001.1372021.14 1 0 a Certificate of Completion under the VPLE program that covers the environmental media where the Undiscovered Contamination is located. (9) Seller's Additional Cost. Seller understands and agrees that if Seller, in the course of its investigation, monitoring and/or remedial activities, disturbs, removes or destroys any improvements to the Property made by the Buyer, pursuant to the Park Plan, Seller shall restore the Property to the extent practicable to the condition it was in prior to initiating the environmental work. (10) Covenant Not to Initiate Proceedings. Buyer expressly covenants not to initiate or cause to be initiated any proceeding or action of any kind, whether in whole or in part, under Sections 292.33 or 292.35, Wis. Stats., relating to the Property. Seller's Indemnification. Seller shall indemnify and defend Buyer at and after Closing for all costs, damages and expenses (including but not limited to reasonable attorneys and consultant fees) arising out of, related to or attributed to any breach by Seller of its obligations under this Contract. Buyer's Indemnity. Buyer shall indemnify and defend Seller at Closing for all costs, damages and expenses (including but not limited to reasonable attorney and consukant fees) arising out of, related to or attributed to any breach by Buyer of its obligations under Section 6.f above. Voluntary_ Party Liability Exemption. Should Seller seek a full or partial VPLE Certificate of Completion, Buyer will not interfere or separately discuss any matters relating to the same with DNR and will cooperate with Seller and execute and/or record any necessary documents relating to such exemption as long as such documents do not prohibit or materially interfere with the use of the Property as a park in accordance with the Park Plan. Non-applicability of Section 893.80~ Wis. Stats. Buyer expressly acknowledges that enforcement of the commitments made under this Section 6 are not subject to the procedures or liability limitations of Section 893.80, Wis. Stats., and to the extent Buyer's representation is incorrect, this paragraph shall be interpreted as an express waiver of the liability limits and procedures set forth in Section 893.80, Wis. Stats. Survival. The provisions of this section shall survive Settlement and the delivery of the Deed or any expiration or termination of this Contract without limitation as to time. DNR Assurance Letter. Buyer shall have sixty (60) days from the Effective Date of the Contract to obtain a satisfactory update assurance letter from DNR, pursuant to Section 292.55, Wis. Stats. (the "Assurance Letter"), with respect to 001.1~72021.14 1 1 Buyer's planned use of the Property for a public park pursuant to the Park Plan, which Assurance Letter will be in form and substance acceptable to Buyer, including but not limited to provisions that (i) Buyer qualifies for the municipal exemption; (ii) the proposed park will not adversely affect Seller's remediation and will not be deemed to aggravate or exacerbate the contamination at the Property; (iii) any soil removed by Buyer from the Property can be disposed of as solid waste; (iv) to the extent Seller does not remove soil from the Property as part of the remediation, it can be used on site; (v) the Park Plan will not represent any public health threat; (vi) what, if any, approval Buyer will need from the DNR to disturb the cap in order to implement Buyer's Park Plan; and (vii) Buyer is not a liable party under Section 292.3 I, Wis. Stats. Seller has made no representations to Buyer that Buyer will be able to obtain the foregoing assurances from the DNR. Further, it is understood that any costs associated with obtaining the Assurance Letter will be paid for by Buyer. Should Buyer not receive a satisfactory Assurance Letter as determined in Buyer's sole discretion within sixty (60) days, Buyer may terminate this Contract, and this Contract shall be null and void and of no further force and effect (except for matters described in Section 7.b below, or proceed to purchase the Property. Should Buyer not obtain a satisfactory Assurance Letter and should Buyer elect to terminate the Contract, it shall do so no later than five (5) business days after the receipt of DNR's response to its request for an Assurance Letter or within two (2) business days after the end of sixty (60) days, whichever occurs first, unless such sixty (60) day period is extended by Buyer and Seller. Should Buyer not notify Seller as provided for in this section, Buyer will be deemed to have elected to proceed to purchase the Property. Buyer agrees to follow the procedure set forth below with respect to obtaining the update to the Assurance Letter as well as any other oral communications Buyer or its representative have with DNR relating to the development of the park plan improvements or any modifications to such improvements: (1) Buyer or its representatives shall request the update to the Assurance Letter in writing. (2) Buyer or its representatives or consultants shall not engage in any oral discussions with DNR with respect to the Property, environmental conditions related to or associated with the Property, including but not limited to groundwater or sediment, or the Assurance letter or the update to the Assurance Letter except as the same specifically relate to its park development. Buyer may not engage in any oral discussions with the DNR (by telephone, meetings or otherwise) unless Buyer has notified Seller in writing in a reasonably timely manner prior to engaging in such discussions of the particulars of such discussions (such as time of telephone calls or meetings, place of meetings and topics intended to be discussed), and Seller and its consultants shall be allowed to participate in such discussions. If Seller choose not to so participate, Buyer agrees to report to Seller in writing within a reasonable period of time the subject matter and results of 001.1372021.1 4 12 such discussion. Buyer shall take all necessary and appropriate steps to inform its consultants, agents and/or representatives of the above requirements.. (3) All written/electronic materials that Buyer transmits to DNR relating to the Assurance Letter shall be copied to Seller. Seller's Covenants and Agreements. Seller hereby covenants and agrees to and with Buyer as follows, each of which covenants and agreements shall survive Closing. Contracts and Leases. Seller shall not enter into any contracts or leases affecting the Property that will encumber the Property after Closing without Buyer's prior written consent. Access and Assistance. Seller shall, between the execution of this Contract and the Closing, assist Buyer in such manner and to such extent as Buyer shall request in providing information relating to the Property. If Buyer requests such assistance, Seller need not incur any cOsts or expenses in connection therewith unless Buyer agrees to reimburse such costs or expenses. Buyer shall have access to the Property during normal business hours on reasonable prior notice for purposes of inspecting the same. Buyer will restore any damage caused to the Property during its entry. Closing Documents. Seller shall enter into and deliver to Buyer at Closing the following documents: Deed. The Deed conveying the Property in the condition described in Section 4 above. (2) Declaration of Easements. The Declaration of Easements in substantially the form set forth on Exhibit C. (3) FIRPTA Affidavit. An affidavit pursuant to Section 1445 of the Internal Revenue Code certifying that Seller is not a foreign person or entity as defined in such Internal Revenue Code section. (4) Transfer Fee Return. A transfer fee return required by Wisconsin law. (5) Aff~davits and Other Certifications. Such affidavits and other certifications as may be reasonably requested by Title Company to more fully vest title to the Property in Buyer and to permit the Title Company to issue its title insurance policy free of its standard exceptions, including an owner's affidavit as to liens and possession, a gap afffidavit and such other documents and affidavits as may be reasonably required by the Title Company to remove or satisfy the requirements set forth in Schedule B-I of the title insurance commitment and the standard exceptions in Schedule B- 001.1372021.14 13 II of the title commitment (other than the exception for general real estate taxes not yet due and payable). (6) Closin~ Statement. A Seller's settlement statement setting forth all debits and credits to Buyer and Seller. Buyer's Covenants and Agreements. Buyer hereby covenants and agrees to and with Seller as follows, each of which covenants and agreements shall survive Closing. Payment of Purchase Price. At Closing, Buyer shall pay to Seller the amount owing to Seller for purchase of the Property by wire transfer to the account of Seller or by cashier's or certified check payable to the order of Seller. b. Closing Documents. At Closing, Buyer shall deliver the following to Seller: (1) Transfer Fee Return. A transfer fee return required by Wisconsin law. (2) Closing Statement. A Buyer's settlement statement setting forth the debits and credits owing to Seller in connection with this transaction. (3) Declaration of Easements. The Declaration of Easements in substantially the form set forth in Exhibit C. (4) Affidavits and Other Certifications. Such affidavits and other certifications as may be reasonably requested by the Title Company as may be customary in Wisconsin. (5) City AttornevRepresentations. (a) Representations from the City Attorney that the City has the authority to enter into the release and indemnity provided for in Section 6.b and Section 6.c above and that all necessary notices and procedures were followed by the City to authorize its representatives to grant such release and indemnity. (b) Representations from the City Attorney that Section 893.80, Wis. Stats., does not apply to this Contract or any action to enforce this Contract. (c) Representation from the City Attorney that the City has the authority to enter into the covenants not to initiate proceedings or actions under Sections 292.33 and 292.35, Wis. Stats., provided for in Section 6.f(7) and all necessary notices and procedures were followed by the City to authorize its representatives to grant such covenants. 001.1372021.14 14 10. 11. 12. 13. Possession. Upon execution and delivery hereof by Seller, Buyer and its agents shall be given access to the Property at ail reasonable times during normal business hours on reasonable prior notice for purposes of completely inspecting the same and conducting a survey, provided that Buyer restores any damage to the Property caused by Buyer, its agents, employees and contractors in the course of its entry on the Property. Legal possession and physical occupancy of the Property shall be delivered to Buyer at Closing. Default. If Seller cannot, after using its best efforts and due diligence, convey title to the Property, as required hereunder, then Buyer shail as its sole remedy have the right and option to either (i) terminate this Contract or (ii) accept whatever title to the Property Seller can convey. Casualty; Condemnation. Risk of loss due to fire, other casualty, condemnation or exercise of the fight of eminent domain shall remain with Seller until after Closing: and if any material casualty or condemnation occurs prior to Closing, then Buyer and Seller shall each have the right and option to terminate this Contract, whereupon neither Buyer nor Seller shail have any further liability hereunder. Broker. Buyer and Seller hereby represent and warrant to the other party that they have not dealt with any reai estate broker, agent or finder in connection with this transaction. Seller and Buyer each agree to indemnify and hold each other harmless from and against any and all liability, loss, cost or expense in connection with claims of any such agent, broker or finder based on the actions or agreement of the respective indemnitors hereunder. Notices. All notices and other communications required or permitted hereunder shall be in writing and mailed in the United States mail, postage prepaid, certified or registered mail, or overnight courier, addressed to Seller or Buyer, as the case may be, at the address therefor set forth below, or at such other address as either party shall hereafter designate by like notice, or by telecopy transmission to the telecopy number designated as set forth below (with a copy of any telecopy transmission to be sent by United States mail). Any such notice, if mailed as provided herein, shall be deemed to have been given on the date mailed and received on the expiration of two (2) business days after mailing. Any telecopy transmission shall be deemed given and received on the date the telecopy is transmitted and received: If to Seller, then to: Roger J. Trudeau Director - Reai Estate Wisconsin Public Service Corporation 700 North Adams Street P.O. Box 19002 Green Bay, WI 54307-9002 Facsimile Number: 920/431-4815 001.1372021.14 1 5 14. 15. 16. 17. 18. 19. With a copy to: Patrick M. Zabrowski Foley & Lardner 777 East Wisconsin Avenue Milwaukee, WI 53202-5306 Facsimile Number: 414/297-4900 IftoBuyer, then to: Jackson Kinney City of Oshkosh 215 Church Avenue Oshkosh, WI 54902 Facsimile Number: 920-236-5053 With a copy to: Pamela E. Barker Godfrey & Kahn, S.C. 780 North Water Street Milwaukee, WI 53202-3590 Facsimile Number: 414/273-5198 Modification. Neither this Contract nor any term, covenant or condition hereof may be modified or amended, except by an agreement in writing, executed and delivered by the party against whom enforcement of such modification or amendment is sought. Successors; Assigns. This Contract and all of the terms, covenants and conditions hereof and of the various instruments executed and delivered pursuant hereto shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and shall survive Closing. Buyer shall not be permitted to assign any or all of its rights hereunder, without first obtaining the consent of Seller, which consent shall not be unreasonably withheld or delayed; however, Buyer may assign this Contract to any agency of the City of Oshkosh or other entity controlled by the City of Oshkosh without Seller's consent provided that the City of Oshkosh is not released from its obligations under this Contract. Headings. The headings of the paragraphs and subparagraphs of this Contract are for purposes of convenience only and shall in no way affect the construction of any of the terms, covenants or conditions hereo£ Time Is of the Essence. Buyer and Seller agree that time is of the essence with respect to all dates set forth in this Contract. Closing. The closing of the transaction set forth herein (herein referred to as "Closing") shall take place in the offices of the Title Company or at such other place as is mutually agreeable by Seller and Buyer on or before the date which is thirty (30) days after the date Buyer obtains the Assurance Letter or waives the contingency relating thereto. Applicable Law. This Contract shall be construed in accordance with the laws of the State of Wisconsin. 001.1372021.14 16 20. 21. Counterparts. This Contract may be executed in counterparts, each of which shall be deemed to be an original~ but which together shall constitute one original Contract. Effective Date. This Contract will not be effective until it has been executed by, and counterparts of the same delivered to, all parties. A facsimile copy of this Contract and any signature thereon shall be considered for all purposes as originals. 22. Severability. If any term, covenant or condition of this Contract or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then the remainder of this Contract, and the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each and every term, covenant and condition of this Contract shall be valid and be enforced to the fullest extent permitted by applicable law. IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed by their duly authorized officers, sealed and delivered as of the day and year first above written. BUYER: CITY OF OSHKOSH, WISCONSIN Ap r ed: . ~ ~l. korens~m'r;',_gsst. City Att'orney City ~of Oshkosh I hereby certify mat th,e, necessary provisions have been made to pay the liability which will accrue under this contract. City Comptroller BUYER: CITY OF OSHKOSH, WISCONSIN By: ~1 rli ', ~~ C%{y Clerk scoNsm muc ss mC CO. OPTION By: 001.137202t.I 4 ] 7 Document Number EXHIBIT C DECLARATION OF EASEMENTS Recording Area Name and Return Address Roger J. Trudeau Director - Real Estate Wisconsin Public Service Corporation 700 North Adams Street P.O. Box 19002 Green Bay, Wisconsin 54307-9002 Parcel Identification Number ('PIN) CITY OF OSHKOSH AND WISCONSIN PUBLIC SERVICE CORPORATION This document was drafted by Patrick M. Zabrowski of Foley & Lardner. 001.1423018.3 DECLARATION OF EASEMENTS THIS DECLARATION OF EASEMENTS ("Declaration") is made and entered into as of the day of ,2003, by and between the CITY OF OSHKOSH ("City") and WISCONSIN PUBLIC SERVICE CORPORATION ("WPSC"). RECITALS: A. City is the legal title holder of the premises described on Exhibit A ("Parcel A"). WPSC is the legal title holder of the premises described on Exhibit B ("Parcel B"). Parcel A and Parcel B are hereinafter sometimes individually referred to as a "Parcel" and collectively as "Parcels." B. WPSC and City desire to establish for the benefit of the other party certain easements, rights, privileges and restrictions in, on, over and under Parcel A as hereinafter set forth. NOW THEREFORE, in consideration of the mutual promises and covenants herein contained, and other good and valuable consideration in hand paid, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Driveway Easement. City hereby grants and conveys to WPSC a perpetual, nonexclusive easement in the area of Parcel A described on Exhibit C (the "Driveway Easement Area") for installing, maintaining, replacing and using a driveway providing ingress to and egress from the Driveway Easement Area to provide access to Parcel B. WPSC shall install a one lane asphalt driveway on the Driveway Easement Area no later than nine (9) months after receiving plans for the driveway from the City. If the City desires a larger driveway on the Driveway Easement Area, the City shall be responsible for installing and paying for the cost of installing such driveway. WPSC shall, at its sole cost and expense, maintain, repair and replace any driveway improvements now or hereafter located on the Driveway Easement Area except that City will be responsible for: (a) the cost of repairing any damage to the driveway improvements caused by City and its contractors, licensees, agents, servants and employees; and (b) if the City uses the driveway located on the Driveway Easement Area (other than occasional use), City shall bear its fair share of costs based on the proportionate amount of use by City as compared to WPSC. WPSC may terminate the easement on the Driveway Easement Area at any time. 2. Operation Easement. City hereby grants and conveys to WPSC a perpetual, nonexclusive easement for maintaining, repairing, replacing and othe~vise using the groundwater monitoring, collection and gradient control system (collectively, the "System") located on Parcel A. WPSC shall, at its sole cost and expense, maintain, repair and replace any groundwater monitoring, collection and gradient control system improvements now or hereafter located on Parcel A, except that the City will be responsible for the costs and expenses of repairing any damage to System caused by the City and its agents, employees and contractors. In the event WPSC must excavate in order to maintain, repair or replace the System, WPSC shall secure and limit or restrict access to the area being excavated and shall with reasonable diligence proceed to complete the maintenance, repair or replacement of the System. In the event a 001.1423018.3 Voluntary Party Liability Exemption Certificate of Completion under § § 292.15 Wis. Stats., or its successor, is obtained for the System and environmental conditions relating thereto so that the System is no longer necessary, WPSC shall remove the System and restore the easement area to substantially the same condition it was in immediately prior to the System being removed, and the Operation Easement shall be terminated and of no further force and effect. WPSC shall execute any reasonable easement termination documents requested by the City. 3. Sediment Project Easement. City grants to WPSC an easement to use that portion of Parcel A described on Exhibit C attached hereto (the "Sediment Easement Area") for use in conjunction with WPSC's Fox River sediment mmediation activities, if any, that WPSC may conduct in the future. This easement is perpetual, provided however, WPSC shall not be entitled to use the Sediment Easement Area during the months of June, July or August in any calendar year unless WPSC obtains City's prior written consent. City shall not place any structures or other improvements (other than landscaping, walkways, sprinkler systems and pavement) on the Sediment Easement Area without the express written consent of WPSC. WPSC may limit or completely restrict access to the Sediment Easement Area during the course of WPSC's actual use of such area for sediment remediation and activities relating thereto (including preparation and staging) by anyone other than employees, agents and contractors of WPSC or appropriate emergency personnel (fire, police, medical, hazardous materials), except as otherwise expressly approved in writing by WPSC. WPSC shall keep the Sediment Easement Area secure by fencing or other appropriate means during its actual use of the Sediment Easement Area and shall remove the fence or other security measures and restore the Sediment Easement Area to substantially the same condition it was in immediately prior to WPSC's actual use of the area including without limitation repair or replacement of any landscaping, walkways, sprinkler systems or pavement no later than May 31 of each year, so that the City can use the Sediment Easement Area during the months of June, July and August. 4. Indemnifications. (a) City agrees to indemnify, defend and save WPSC and its officers, directors, members, employees and all persons claiming by or through them, harmless from and against all claims of whatever nature: (i) arising from any act, omission or negligence of City, or City's contractors, licensees, agents, servants or employees; (ii) arising from any accident, injury or damage whatsoever caused by City to any person, or to the property of any person, or from any violation of applicable law, resulting from any willful or negligent act or omission of City or City's contractors, licensees, agents, servants or employees; or (iii) arising out of, related to or attributed to any breach by the City of its obligations under this Declaration. This indemnity and hold harmless provision shall include indemnity against all costs, expenses and liabilities, including reasonable attorneys' fees, incurred in or in connection with any such claim or proceeding brought thereon, and the defense thereof. (b) WPSC agrees to indemnify, defend and save City and its officers, directors, members, employees and all persons claiming by or through them, harmless from and against ail claims of whatever nature: (i) arising from any act, omission or negligence of WPSC, or WPSC's contractors, licensees, agents, servants or employees; (ii) arising from any accident, injury or damage whatsoever caused by WPSC to any 2 001.1423018.3 person, or to the property of any person, or from any violation of applicable law, resulting from any willful or negligent act or omission of WPSC or WPSC's contractors, licensees, agents, servants or employees; or (iii) arising out of, related to or attributed to any breach by WPSC of its obligations under this Declaration. This indemnity and hold harmless provision shall include indemnity against all costs, expenses and liabilities, including reasonable attorneys' fees, incurred in or in connection with any such claim or proceeding brought thereon, and the defense thereof. 5. General Provisions. (a) Successors and Assigns. Notwithstanding any other covenant or agreement contained herein, the easements, covenants, rights, privileges, benefits and obligations created hereby shall run with the land and inure to the benefit of and be binding upon the parties hereto, their successors and assigns, tenants, subtenants, licensees, concessionaires, suppliers, customers, employees, agents and invitees. The easement granted in paragraph 1 above is appurtenant to Parcel B. (b) Modification Provisions. This Declaration may not be modified in any respect whatsoever, or rescinded in whole or in part with the written consent of WPSC and the owner of Parcel A. (c) Breach Shall Not Permit Termination. It is expressly agreed that no breach of this Declaration shall entitle any owner of the Parcels to cancel, rescind or otherwise to terminate this Declaration, but such limitation shall not affect in any manner, any other rights or remedies which such owner may have hereunder by reason of any breach of this Declaration. Any breach of any of said covenants or restrictions shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith for value, but such covenants or restrictions shall be binding upon and effective against such owner of any of said property or any portion thereof whose title thereto is acquired by foreclosure, trustee's sale or otherwise. (d) Validity and Severance. If any clause, sentence or other portion of this Declaration shall become illegal, null or void for any reason, or shall be held by any court of competent jurisdiction to be so, the remaining portion thereof shall remain in full force and effect. (e) Laws and Regulations. The easements herein granted shall be subject to all lawful requirements, including zoning and local laws and ordinances regarding subdivisions. 3 001.1423018.3 IN WITNESS WHEREOF, the parties hereto have executed this Declaration as of the day and year first above written. CITY OF OSHKOSH By: Its: WISCONSIN PUBLIC SERVICE CORPORATION By: Its: 4 001,1423018.3 STATE OF WISCONSIN ) ) COUNTY OF .) I, ., a Notary Public in and for the said County, in the State aforesaid, DO HEREBY CERTIFY that as of the CITY OF OSHKOSH, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such of said City, appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her o~vn free and voluntary act and as the free and voluntary act of said City for the uses and purposes therein set forth. GIVEN under my hand and notariaI seal this __ day of ,2003. Notary Public STATE OF WISCONSIN ) ) COUNTY OF ) I, , a Notary Public in and for the said County, in the State aforesaid, DO HEREBY CERTIFY that as of WISCONSIN PUBLIC SERVICE CORPORATION, who is personally kno~vn to me to be the same person whose name is subscribed to the foregoing instrument as such appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her own free and voluntary act and as the free and voluntary act of said Corporation for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this __ day of ,2003. Notary Public 5 001.1423018.3 EXHIBIT A A-1 001.1423018.3 EXHIBIT B 001.1423018.3 EXHIBIT C 001.1423018.3 C-[