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HomeMy WebLinkAbout2026-01-22 City of Oshkosh Gizmo Amended and Restated Sludge Agreement fully signedAMENDED AND RESTATED SLUDGE AGREEMENT This AMENDED AND RESTATED SLUDGE AGREEMENT (the "Agreement"), made and entered into this l L(Ifhay of :3�qnc 2026, is by and between G1ZM0 OSHKOSH, LLC, a Wisconsin limited li *lity company (the "Lessor"), with a notice zi address of 1931 Knott Road, Oshkosh, Wisconsin 54904, and the CITY OF OSHKOSH, a Wisconsin municipality (the "Lessee" or the "City"), with an operations address at 233 North Campbell Road, Oshkosh, Wisconsin 54901. RECITALS A. The City operates the Oshkosh Wastewater Treatment Plant under Wisconsin Pollutant Discharge Elimination System (WPDES) Permit No. WI-0025038-- 10-0 for the term July 1, 2025, through June 30, 2030. B. Lessor has rights to use the biosolids storage building and related site improvements located at 6416 County Road K, Ornro, W1 54963, Tax Parcel # 016066501 (the "Premises") subject to a Bio-Solid Storage Facility and Land Lease dated September 30, 2015 executed between Lessor's affiliate entity, Marek R. Potratz, LLC, and James B. Potratz and Margaret A. Potratz, the Premises owner(s) ("Potratz Lease Agreement"). C. The City and Lessor are parties to a Sludge Removal, Storage and Land Application Disposal Contract dated August 24, 1994 (as amended) (the "1994 Agreement") for the City's use of the Premises and certain sludge hauling services provided by Lessor. D. On June 2, 2025, Lessor provided formal written notice intending to terminate the 1994 Agreement relating to certain services effective December 31, 2025. E. In December 2025, Lessor clarified the June 2, 2025, termination was intended to be limited to certain services provided by the Lessor, namely, termination of Lessor's sludge hauling and spreading services. F. The parties desire to enter into this Agreement to formally amend and restate the 1994 Agreement with respect to the City's use of the storage building and land application use of certain lands, without creating additional or duplicative compliance obligations under the City's WPDES permit and applicable law. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, Lessor and Lessee agree as follows: 1. Lease. Lessor leases to the City, and the City leases from Lessor, the Premises. The legal description of the Premises will be attached as Exhibit A when available. 2. License for Land Application Authorization. a. Lessor also grants to the City a license and nonexclusive easement to access and use the parcels identified on Exhibit B (the "Land Application Parcels") solely for the temporary staging and land application of biosolids consistent with this Agreement. The Land Application Parcels include parcels owned or controlled by Lessor or its affiliates. This license includes reasonable ingress and egress over internal field roads, farm lanes, and drives necessary to reach the Land Application Parcels and to maneuver land application equipment. b. Authority and Consents. Lessor represents that it owns or controls the Land Application Parcels listed on Exhibit B, or otherwise possesses lawful authority to grant the license and access rights hereunder, and that it will obtain and maintain any third -party consents (including tenant farmer consents and mortgagee consents, if required) needed for the City to use such parcels as permitted by this Agreement. c. Nature of Rights. The parties acknowledge that the license for the Land Application Parcels conveys no leasehold or ownership interest in farmland; the City's rights are limited to the purposes described in Section 5. The City may suspend or discontinue use of any Land Application Parcel in its sole discretion if conditions are unsafe, unsuitable, or uneconomic. 3. Term. . The term of this Agreement (the "Term") shall commence on January 1, 2026 (the "Commencement Date") and shall continue for a period of fifteen (15) years, ending on December 31, 2040, unless terminated earlier as provided herein. This Agreement shall automatically renew for successive five (5) year terms (each a "Renewal Term") unless either party provides written notice of its intent not to renew at least six (6) months prior to the expiration of the then -current Term. 4. Compensation. In lieu of monetary compensation, the Lessor accepts biosolids utilized on the Land Application Parcels to be valuable consideration. The Lessor N acknowledges and agrees the land application activities shall constitute full and sufficient consideration for this Agreement. 5. Permitted Use. The City may use (a) the Storage Premises for temporary storage of biosolids generated by the City before land application or other lawful management.; and (b) the Land Application Parcels for temporary staging and for land application of City biosolids at agronomic rates consistent with Wis. Admin. Code ch. NR 204, the City's Land Application Management Plan, and the City's WPDES permit, in each case only to the extent those requirements already apply to the City. Land application AX dates, rates., and methods will be set by the City in accordance with Section 7. If the City determines a parcel is not suitable at a given time (e.g., saturated or frozen soils, steep slopes, or setback limitations), the City may defer or decline application without liability. 6. Prohibited Uses. No other wastes, septage, liquids, or third -party biosolids may be brought to or stored on the Premises without the Lessor and City's written consent. 7. Ci!y Compliance. The City's biosolids storage and land application will comply with Wis. Admin. Code ch. NR 204 and the City's WPDES permit, to the extent those requirements already apply to the City. Nothing in this Agreement imposes additional or duplicative permit obligations on the City. 8. Lessor Cooperation. Lessor will reasonably cooperate with the City's compliance activities, including providing access for WDNR or City inspections, documentation., and sampling, and by executing site access acknowledgments if requested. 9. Facilities Planning. The parties acknowledge WDNR facility planning and plan approval requirements that may be applicable to the City's wastewater facilities (e.g., Wis. Stat. § 281.41 and Wis. Admin. Code ch. NR 110). Lessor will provide reasonable cooperation and access for any related documentation or submittals that pertain to the Premises. 10. Maintenance, Operations & Field Access. a. Lessor Responsibilities. For the Premises, Lessor shall maintain the building structure, roof, doors, venting, electrical, lighting, floor slab, exterior pads, access roads, and any stormwater/leachate controls in safe, operable condition consistent with applicable law. For the Land Application Parcels, Lessor shall maintain reasonable access to fields (including gates and farm lanes) and shall not take actions that would materially interfere with the City's lawful land K application (e.g., new deed restrictions or conservation easements that prohibit application) during the Term without the City's written consent. b. City Responsibilities. The City shall maintain cleanliness in and around the Premises, provide snow removal, promptly remove biosolids following storage periods to avoid nuisance conditions, and clean incidental spillage caused by the City's handling. The City will repair (or reimburse reasonable costs of repair for) any direct physical damage to gates, fences, or field lanes caused by the City's (or its contractors) negligence ordinary wear does not constitute property damage. 11. Testing; Sampling. a. City Sampling. The City (or its contractors) will perform biosolids sampling and analyses as required by NR 204 and the City's WPDES pen -nit, at the City's cost and will share relevant sampling results promptly upon request. 12. Indemnifications. a. Pre -Existing Conditions and Safe Harbor for City. Lessor shall remain solely responsible for environmental conditions existing on, under, or about the Premises that are not caused by the City's use, including historical conditions (such as legacy pesticides, petroleum, or other hazardous . substances and contaminants in soils or groundwater) and conditions arising from the Lessor's or third parties' acts or omissions. The City shall have no responsibility for pre- existing conditions or for impacts that are not caused by the City's biosolids or operations. b. City -Caused Releases. The City is responsible for any new release of biosolids or other materials caused solely by the City's negligence during load ing/unloading, staging or land application. C. Lessor Indemnity — Pre -Existing and Third Party Claims. Lessor shall defend, indemnify, and hold harmless the City from and against any claims, penalties, damages, costs, or expenses (including reasonable attorney and expert fees) arising from (a) pre-existing environmental conditions on the Premises; (b) violations of law caused by Lessor or its agents; or (c) any allegation that land application is prohibited or restricted by a deed, easement, covenant, lease, or third - party right not disclosed to and accepted by the City. M d. No Operator Status Assumed. The City's storage use does not make the City an owner or operator of the Premises or Land Application Parcels for purposes of pre-existing conditions. e. No Waiver. Nothing herein waives the City's governmental immunities, damage caps, or defenses under Wisconsin law. The indemnification obligations of the parties under this Section shall survive the expiration or earlier termination of this Agreement. 13. Access; Security. Lessor grants the City, including its contractors and agents, 24/7 access to the Premises and reasonable seasonal access to the Land Application Parcels for the Permitted Use. The City will secure the Premises after use. Lessor may post reasonable rules for site safety that do not unreasonably interfere with the City's Permitted Uses. 14. Taxes; Utilities. Lessor shall pay real estate taxes and assessments on the Premises and ordinary utilities. If the City requests extraordinary utility service solely for City's benefit, the City will reimburse documented incremental costs. 15. Assi2nment. Neither party may assign this Agreement without the other's written consent. 16. Contractors. The City may engage contractors to perform the Permitted Uses and such engagement shall not constitute an assignment under Section 16 (Assignment). All contractors of the City shall maintain liability coverage through insurance policies in accordance with City Contractor Insurance Requirements (available here: CityOfOshkoshlnsuranceRequirements.pdf) 17. Default. A party is in default if it fails to perform a material obligation and does not cure within thirty (30) days after written notice (or such longer period as reasonably required if cure has commenced). 18. Termination. Either party may terminate for convenience with six (6) months written notice, provided all amounts due are paid through the termination date. 19. Notice. All notices under this Agreement shall be in writing and deliverei by personal delivery, certified mail, or recognized overnight courier to the addresses listed *n page one (or as upid 0 20. GoverniM Law;- Venue. This Agreement is governed by the laws of the State of Wisconsin. Any lawsuit or proceeding arising out of or relating to this Agreement shall be brought exclusively in the Circuit Court for Winnebago County, Wisconsin, and each party consents to that court's jurisdiction and waives any objection to venue. Nothing in this section waives the City's governmental immunities or statutory damage limitations. 21. No Third -Party Beneficiaries. This Agreement is for the sole benefit of Lessor and Lessee and their permitted successors and assigns. No other person or entity including any contractor, hauler, or governmental regulator has any rights under, or may enforce, this Agreement. 22. Entire Aueement. This Agreement, together with its exhibits and any documents expressly incorporated by reference, is the entire agreement between the parties i concerning the Premises and Land Application Parcels and supersedes all prior or contemporaneous proposals, negotiations, and understandings on that subject. 23. Amendments. Any amendment, waiver, or modification must be in a writing signed by both parties. For the City, any amendment must be signed by an authorized City official after all required approvals. 24. Severability. If any provision of this Agreement is held invalid or unenforceable, that provision shall be enforced to the maximum extent permitted, and the remaining provisions shall continue in full force and effect. A court may modify any invalid provision to reflect the parties' -intent as closely as the law allows. If the invalid provision is essential to the basic purpose of this Agreement, the parties shall negotiate in good faith to replace it with a valid term that most closely reflects their original intent. 25. Authority. Each signor has authority to bind their party to this Agreement. Upon each signor's request, parties will promptly provide reasonable proof of tha) authority, including evidence of ownership or control. 26. Effective Date. Both parties agree the effective date of this Agreement is retroactively applied to January 1, 2026. [Signatures to follow, the rest of this page is intentionally blank] Z LESSOR: GIZMO OSHKOSH, LLC By: STATE OF WISCONSIN I ISS COUNTY OF I Decz� 202%'-"- the Personally came before me this day of ' —5 above -named Marek R. Potratz, to me known to be the person who executed the .r foregoing instrument on behalf of Gizmo Oshkosh, LLC. Ndtary W.0 i,, State ®f Wisconsin My Conumssion: —15, [Signatures tofollow; the rest o this page is intentionally blank] )f h LESSE -CITY OF OSHKOS WISCONSIN By: Date r Oi/ Title: City Clerk Approved �o form: By: Date: � 5.. Y�r'�D ds' 6� `�'. Name: Title: City Attorney STATE OF WISCONSIN I ISS COUNTY OF WINNEBAGO I Personally came before me this 2-1 day of �M tka r 2026, the above -named Rebecca Grill and Dny-te, to me known to be the City Manager and City Clerk, respectively, of the City of Oshkosh, Wisconsin, and the persons who executed the foregoing instrument. M, IV Cb Notary Public, State of Wiscqnsin _--- MT Commission: Obloze' 0 .04# OF VV\SGt% 'fol",Am 1h i0oo Premises property located at 6416 County Road K, Omro, Wisconsin 54963, Tax Parcel # 016066501. Lot One (1) according to CERTIFIED SURVEY MAP filed in Volume I of Survey Maps on Page 4475 as Document No. 1087562; being part of Lot One(l) in Certified Survey Map No. 2214 in the North East 1/4 and the South East 1/4 of the South West 1/4 of Section Twenty-eight (28), Township Eighteen (18) North, of Range Fifteen (15) East, in the Town of Omro, Winnebago County, Wisconsin. 9 DNR site Date approved �P Owner Farmer Acres Field Name20211 5/2/2023 Gizmo67 C)SH-1 Farms 21565 5/ 1 /2024 James Potratz Gizmo 113 ®SH-3 Farms 20214 5/2/2023 Gizmo 85 ®SH-4 Farms 20215 5/2/2023 Gizmo 145 OSH-5 Farms 37676 6/24/2023 Marek Potratz G1zmo 27 GSH-6 Farms 37677 6/24/2023 Marek Potratz Gizmo 25 ®SH-7 Farms 37678 6/24/2023 Marek Potratz Gizmo 13 OSH-8 Farms 37679 6/24/2023 Marek Potratz Gizmo 36 GSH-9 Farms 20183 6/24/2023 Marek Potratz Gizmo 34 OSH-10 Farms 76552 6/24/2023 Marek Potratz Gizmo 16 GSH-11 Farms Total Acres 561 37510687.2 luf