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HomeMy WebLinkAbout10-267AUGUST 24, 2010 10 -267 RESOLUTION (CARRIED 4 -3 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE ANNEXATION AGREEMENT WITH UTICA ENERGY FOR PROPERTY IN THE TOWN OF UTICA INITIATED BY: CITY ADMINISTRATION BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached Annexation Agreement with Utica Energy regarding the future annexation of property comprising 23.24 acres in the Town of Utica, is hereby approved and the proper City officials are hereby authorized to execute and deliver the agreement in substantially the same form as attached hereto, any changes in the execution copy being deemed approved by their respective signatures, and said City officials are authorized and directed to take those steps necessary to implement the terms and conditions of the Agreement. TO: Honorable Mayor and members of the Common Council FROM: Allen Davis, Community Development Director DATE: August 19, 2010 SUBJECT: Utica Energy — Service Agreement and Annexation Agreement BACKGROUND Utica Energy operates an ethanol plan at 4995 STH 91 in the Town of Utica. As the result of a lawsuit with the Clean Water Action Council and a threatened WisDNR lawsuit, Utica Energy was required to either build a wastewater treatment plant or connect to the City of Oshkosh wastewater collection system for wastewater treatment by the City. Utica Energy chose to approach the City with a proposal to connect to the City's sanitary sewer system. ANALYSIS Prior to connecting the Utica Energy sanitary sewer pipe, staff has proposed that the City require a Service Agreement to accept and treat Utica Energy's wastewater and annexation of the property. Additionally, the Utica Energy facility is not in or adjoining the City. Annexation is not possible at this point in time. Properties outside the municipal boundaries may only receive sanitary sewer services if they agree in advance to be annexed into the City. An Annexation Agreement can be used to secure annexation at the City's discretion, in the future, when annexation is possible. Both the Service Agreement and the Annexation Agreement have been prepared for this possibility. The agreements ensure that Utica Energy pays all costs upfront and stays a month ahead of the monthly sewer charges. We believe Oshkosh tax payers are adequately protected. This proposed arrangement is similar to the 20`'' St. YMCA's connection to City sewer in the 1990s, prior to annexation. The City annexed the YMCA once the property adjoined the City. When the City of Oshkosh chooses to annex the Utica Energy property, the annexation will follow the same process used for other annexations including the Plan Commission review and Common Council action. FISCAL IMPACT None. Approved, „.-�aAr City Manager Annexation Agreement The parties to this agreement are Utica Energy, LLC, a Wisconsin Limited Liability Company, ( "Utica Energy "), with its principal offices located at 4995 State Road 91, Oshkosh, WI 54904, and the City of Oshkosh, a Wisconsin municipality, ( "City "), with its principal offices located at 215 Church Avenue, P.O. Box 1130, Oshkosh, WI 54903 -1130. Utica Energy has petitioned the City with a request that the City accept Utica Energy's industrial wastewater discharge through the City's sanitary sewer system for its property at 4995 State Road 91, Oshkosh, Wisconsin. The subject property is within the County of Winnebago, Town of Utica, and is identified by Winnebago County as Parcel # 024- 0002, and is legally described by CSM #5084, recorded as document #1196101, volume 1, page 5084, with the Winnebago County Register of Deeds on August 26, 2002, as follows ( "Property"): Lot 1 of CSM #5084, in County of Winnebago, Town of Utica, comprising 23.24 acres. Recording Area Name and Return Address City Attorney's Office Oshkosh, WI 54902 -1130 Parcel Identification Number (PIN) 024 -0002 WHEREAS, in orderto develop and continue operating the Propertyfor its intended purpose, Utica Energy requires access to a municipal sanitary sewer that is not available from Winnebago County or the Town of Utica; and WHEREAS, the City of Oshkosh Municipal Code prohibits the extension of such services beyond the corporate limits except in certain circumstances in which a Petition to Annex the affected Property is filed with the City; and WHEREAS, due to the location of the subject Property, it is not lawfully possible to Annex the parcel to the City at this time; and WHEREAS, the City and Utica Energy anticipate expansion of the City of Oshkosh Southwest Industrial Park, which would eventually permit Annexation of the subject Propertyto the City; and, WHEREAS, Utica Energy as the sole owner of the Property as of the date of this Agreement, has secured appropriate authorization from its Member(s) and as an entity consents to and commits this Property to future Annexation to the City, without objection, at such time that the Property may be lawfully annexed to the City; and, WHEREAS, the Oshkosh Common Council, after due and careful consideration of the terms and conditions of the proposal, has concluded that the connection of the subject Property to the City's sanitary sewer system prior to the Property's actual Annexation to the City of Oshkosh: a) enhances and furthers the eventual growth of the City of Oshkosh; b) contributes to the quality of life within the community and surrounding environs; c) enables the City to control the eventual development of the area and ultimately increases the taxable value of property within the City; d) allows the City to eventually extend its corporate limits and jurisdiction of the City; e) permits the sound planning and development of the City and this particular area; and, f) serves the best interests, public health, safety and welfare of the City; and, WHEREAS, the Common Council for the City of Oshkosh will allow Utica Energy's Property to physically connect its industrial wastewater discharge system to the municipal sanitary sewer system and be subject to the terms of this Annexation Agreement, other written agreements entered into by the parties, and, where applicable, the same terms and conditions as any other customer of the City, or Oshkosh Sewer and Water Utilities. To the extent allowed by law, the specific terms of any permit or agreement shall be applied rather than any general law, statute, or rule; and, WHEREAS, the City has materially altered its position in reliance upon execution of this Agreement and the performance of all terms and conditions by Utica Energy; and, WHEREAS, if the Annexation of the Property to the City is not immediately possible because it is not contiguous to the City, or if the Annexation is not otherwise legally possible, then the City of Oshkosh will only provide sanitary sewer service to the Property upon the condition of compliance with all City rules and restrictions. That this Agreement is executed in a recordable form, and is recorded in the office of the Winnebago County Register of Deeds. This Agreement and its terms shall attach to and run with the Property and be binding upon all successors and assigns. All applicable permits and approvals shall be obtained, and agreements required by the City shall be executed by the owner(s) of the Property and filed with the City of Oshkosh, along with payment of appropriate fees, costs, and deposits; and, WHEREAS, the purpose of this Agreement is to allow the Property to receive the benefit of municipal sanitary sewer service from the City of Oshkosh for its industrial wastewater discharge prior to actual Annexation, in return for the conditions in this and all other agreements, plus the future voluntary Annexation of said Property to the City of Oshkosh without objection. Utica Energy, in consideration for being furnished sanitary sewer service by the City of Oshkosh, prior to the Annexation of the Property to the City, agrees as follows: 1. Agreement to Annex — City Clerk Appointed as Agent. That Utica Energy, and its successors, assigns, and adult residents (electors, if any) agree to be Annexed to the City of Oshkosh, Wisconsin and shall Annex the heretofore described Property to the City soon as it is legally possible to do so. The Utica Energy Property shall Annex to the City within thirty (30) days of receiving a written request to do so from the City of Oshkosh. In addition to the other purposes identified, this document shall also serve in the capacity as a Petition to Annex, when the event occurs which legally allows the Property to be Annexed. For purposes of facilitating said Annexation, Utica Energy, its successors and assigns, and adult residents (electors, if any) appoint the Oshkosh City Clerk as the Agent for the purposes of executing required documents on behalf of all present and future property owners, interested parties, and adult residents (electors) thereof. 2. Agreement to Run with the Land and be Binding on Successors, Assigns, and Adult Residents (Electors). This Agreement shall run with the land, be recorded in the Office of the Winnebago County Register of Deeds, and be binding upon any successor, assign, or adult resident (elector, if any) having any interest in the above described Property. 3. Agreement Enforcement and Costs of Enforcement That this Agreement shall be subject to specific performance in a court of law or equity should Utica Energy, or its successors in interest, assigns, or adult residents (electors, if any) refuse or fail to abide by its terms and conditions of this Agreement, and that Utica Energy, and its successors, assigns and adult residents (electors, if any) will pay all court costs, attorneys' fees and expenses of the City of Oshkosh, Wisconsin, including City departments and associated agencies and utilities, expended in any dispute or proceeding to secure their compliance with this Agreement. 4. Agreement to Cooperate That Utica Energy, and its successors, assigns and adult residents (electors, if any) will fully cooperate with the City of Oshkosh to accomplish the Annexation as soon as legally possible, and will take no action, directly or indirectly, to attempt to subvert, impede, challenge or nullify the Annexation of the Property to the City. 5. Agreement to Pay Liquidated Damages Utica Energy, and its successors, assigns, and adult residents (electors, if any) shall be jointly and severally liable to the City of Oshkosh, Wisconsin for liquidated damages in the amount of One Thousand Dollars ($1,000.00) per day for each and every day that they refuse or fail to take any action necessary to implement the Annexation of the Property or to otherwise materially violate this Agreement. "Refuse or fail to Attach" shall be defined as a failure to fully cooperate in the Annexation process within thirty (30) days of receipt of a written request by the City of Oshkosh. 6. Agreement to Disconnect Service Utica Energy, and its successors, assigns and adult residents (electors, if any) consent to the immediate disconnection of sanitary sewer services furnished to the Property by the City of Oshkosh, without notice, should the Property be legally eligible for Annexation and Utica Energy, or its successors, assigns, or adult residents (electors, if any) Refuse or Fail to Annex said property to the City of Oshkosh, Wisconsin, upon being requested by the City of Oshkosh to do so. "Refuse or Fail to Attach" shall be defined as a failure to fully cooperate in the Annexation process within thirty (30) days of receipt of a written request by the City of Oshkosh to take action with the purpose of achieving the Annexation. 7. Bankruptcy or Insolvency Prior to the Property's actual Annexation to the City, the City shall terminate sanitary sewer service to the Property, immediately and without notice, on or after the date Utica Energy, its successors, assigns, and adult residents (electors, if any) of the Property files a petition seeking relief pursuant to the bankruptcy laws. Additionally, service shall be disconnected, immediately and without notice, if any owner of the property is insolvent based upon a stipulation, or an adjudication pursuant to arbitration or state or federal court of competent jurisdiction. 8. Sanitary Sewer Service All rules relating to sanitary sewer service shall be as provided in the Code of General Ordinances for the City of Oshkosh, Wisconsin, except where additional or alternative terms are identified in this Agreement, any permit, or any other written agreement(s) relating to the Property between the City and Utica Energy. 9. Utility Services The City shall permit Utica Energy or its designee to connect to the sanitary sewer with one (1) four inch (4 ") private sanitary sewer force main. All construction shall be performed to City specifications and shall not be placed into service until full and complete acceptance by the City. Upon acceptance by the City, Utica Energy will become part of the City's sanitary sewer utility and shall be subject to all rules and regulations which apply to Oshkosh Service users, except where identified in any permit or other agreement. The Utica Energy Property's connection to the City's sanitary sewer system shall not adversely affect the City's utility system, regardless of construction, maintenance, and testing activities undertaken by Utica Energy or its designee. 10. Future Access Utica Energy shall be solely and completely responsible for all expenses incurred in the extension of sanitary sewer force main to the subject Property. No additional properties shall connect to Utica Energy's sanitary sewer force main, regardless of ownership of the property. The City of Oshkosh will, over the course of time, be extending its gravity flow sanitary sewer system towards the Utica Energy property. At the time any future public sanitary services are extended, at the City's discretion, Utica Energy shall move and adjust its connection to the City's system, at its own expense, and additionally shall be responsible for all other utility charges and costs to extend services as are applicable pursuant to the Municipal Code. 11. Maintenance Utica Energy shall be solely responsible for the cost of maintenance of all aspects of its industrial wastewater discharge system up to, and including, its connection to the City's system, including but not limited to the sanitary sewer force main, connections, and facilities and structures related to connections with the City system. 12. Improvements Because the subject Property will be Annexed to the City, all construction and improvements on, in, and around the Property shall be in conformance with the appropriate provisions of the City of Oshkosh zoning code. To the extent reasonably possible and consistent with applicable drainage requirements, any drainage plan submitted to the Town of Utica or other governmental entity shall also conform to the drainage requirements of the City of Oshkosh. As the City sanitary sewer system extends toward the Utica Energy Property, the City in its sole discretion may require that the Property's wastewater discharge system connect to a new sanitary sewer manhole or related facilities and /or structures. All costs relating to any change in connection shall be the responsibility of Utica Energy. Utica Energy shall fully cooperate with moving and reconnecting their private sanitary force main to the public system at the new location(s), and at their expense. 13. Limitations This Agreement is limited solely to the provision of sanitary sewer services to the subject Property. Because the subject Property is located within the Town of Utica, Utica Energy understands that other municipal services shall be provided by that jurisdiction or Winnebago County as the case may be. 14. Hold Harmless a. Subject to any limitations contained in Sec. 893.80 and any similar statute, of the Wisconsin Statutes, the City of Oshkosh agrees to hold Utica Energy, its officers, officials, employees and agents harmless from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), or damages to person or property arising out of the terms of this Agreement where such liability is founded upon or grows out of the acts or omissions of any of the City's officers, employees or agents while acting within the scope of their employment. b. Utica Energy agrees to hold the City, including its council members, committee and board members, directors, officers, employees, agents, shareholders, insurers, successors and assigns, harmless from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), or damages to person or property arising out of the terms of this Agreement where such liability is founded upon or grows out of the acts or omissions of any of the Utica Energy's officers, employees or agents while acting within the scope of their employment. 15. Interpretation of Terms The parties intend that each party is to be fully responsible for its respective duties according to the terms and provisions of this Agreement and that this is to be construed liberally in favor of the party seeking to be held harmless. 16. Binding Effect This Agreement shall be recorded and shall be construed as a covenant running with the land. This Agreement shall inure to the benefit of, and be binding upon, all the parties and their respective successors, grantees, lessees and assigns forever, and is not intended to create any benefit to anyone not an express party to this Agreement. Notice of assignment of this Agreement to another party related to the Property will be given to the other party, who must consent in writing within 14 calendars day of the notice; such consent shall not be unreasonably withheld. Upon assignment and acceptance by any assignees and consent of the other party, the assignor shall have no further obligations under this Agreement. 17. Notices All notices concerning this Agreement will be in writing and sent by certified mail or personally delivered to the parties at their respective addresses listed above, or such other address as the respective party may provide in writing. 18. Enforceability and Severability If any provision, covenant, agreement or portion of this Agreement or its application to any person, entity or property is held invalid, such invalidity will not affect the application or validity of any other provisions, covenants or portions of this Agreement, and to that end, all provisions, covenants, agreements and provisions of this Agreement are declared to be severable. If for any reason the annexation of the subject property is ruled invalid or if any provision of this Agreement is held invalid, the parties shall take such actions, including any legislative actions, as may be necessary to give effect to the spirit and intent of this Agreement and the objectives of the parties as disclosed by this Agreement. This Agreement may be enforced only by the parties to this Agreement. 19. Entire Agreement and Modification This document sets forth all agreements, understandings and covenants between the parties. Recitals are also considered material terms of this Agreement. Permits and other agreements related to these parties and to the Property which are referenced in this Agreement are fully incorporated herein. Unless otherwise expressly stated within this document, this Agreement supersedes all prior agreements, negotiations and understandings, written or oral, and is a full integration of the entire agreement of the parties. In WITNESS WHEREOF, the parties have executed this Agreement on the dates written below and, by so executing, each of the parties warrants that it possesses full right and authority to enter into this Agreement. [SIGNATURE PAGE FOLLOWS] UTICA ENERGY, LLC (print name) Managing Member CITY OF OSHKOSH (date) Mark A. Rohloff (date) City Manager Pamela R. Ubrig, City Clerk APPROVED: Lynn A. Lorenson, City Attorney STATE OF WISCONSIN ) )ss WINNEBAGO COUNTY ) ACKNOWLEDGMENT Personally came before me this day of 2010, the above -named and of UTICA ENERGY, LLC, known to me to be the persons and officers who executed the foregoing instrument and acknowledged that they executed the same as such officers by its authority, for the purpose therein contained. Notary Public, Winnebago County, Wisconsin My commission is permanent/expires: STATE OF WISCONSIN ) )ss WINNEBAGO COUNTY ) Personally came before me this day of , 2010, Mark A. Rohloff and Pamela R. Ubrig, known to me to be the persons and officers who executed the foregoing instrument and acknowledged that they executed the same as such officers by its authority, for the purpose therein contained. Notary Public, Winnebago County, Wisconsin My commission is permanent/expires: This document was drafted by: David J. Praska, Asst. City Attorney Oshkosh, WI 54902 -1130