HomeMy WebLinkAboutAnnexation-Utica Energy, LLC 2010 eji
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Annexation Agreement REGISTER'S OFFICE
WINNEBAGO COUNTY, WI
RECORDED ON
Document Number p ocumer t 09/21/2010 11:06A11
• JULIE PAGEL
The parties to this agreement are Utica Energy, LLC, a REGISTER OF DEEDS
Wisconsin Limited Liability Company, ( "Utica Energy "), with its RECORDING FEE 30.00
principal offices located at 4995 State Road 91, Oshkosh, WI TRANSFER FEE
54904, and the City of Oshkosh, a Wisconsin municipality, # OF PAGES 5
( "City "), with its principal offices located at 215 Church Avenue,
P.O. Box 1130, Oshkosh, Wi 54903-1130. Utica Energy has Recording
® R� Area Adage
petitioned the City with a request that the City accept Utica Energy's Name
industrial wastewater discharge through the City's sanitary. sewer City Attorneys office
system for its property at 4995 State Road 91, Oshkosh, Wisconsin. Oshkosh WI 54902 -1130
The subject property is within the County of Winnebago, Town of � �� Identification Number (PIN)
Utica, and is identified by Winnebago County as Parcel # 024- 024..0002
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 2324 acres.
WHEREAS, in order to develop and continue operating the Property for 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 Property to the
City; and,
WHEREAS, Utica Energy as the sole owner of the Property as of the date of this Agreement,
has secured appropriate authorization frcam 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 _tube 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 increase 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 waste water 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
tit 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 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 Oshk.osh will, over the course of time, be extending
its gravity flow sanitary sewer system towards the Utica Energy property. At the time arty
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 sr Iely responsible for the cost of maintenance of ail
aspects of its industrial wastewater discharge system up to and including its connection to
the City's system, including but not Umited 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 cooperatewith 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 an 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 an 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
riot 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
and shall not be unreasonably withheld. Upon assignment havenno acceptance i gn d es t
consent of the other party, the assignor
Agreement.
mail or
17. Notices, All notices concerning this Agreement will add and sent
listed above, or such other
personally delivered to the parties at respective
address as the respective party may provide in writing.
ortion of this
18. Enforceability and Severability. If aersan ei ntit or property is agreement
he d invat d, such ir�vai dity
Agreement or its application to any p Y
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 CITY OF OSHKOSH
Acjil?? q kJ lic.°3 7i-4--fibecried !M.,
(date) Mar( A. Rohloff date)
( name) Managing Member i ' anager
Pamela R. Ubrig, ity er
APPRpVED:
i
410 ■ SOME
Lynn A . Lorenson, ttorney
ACKNOWLEDGMENT
STATE OF WISCONSIN ) 1
)ss
WINNEBAGO COUNTY )
Personally came before me this ILO , day of ' € 2O1O, the above -named
Qoclk R.-2�� t24 and _�.-_ �.•_ ,.,, of UTICA ENERGY,
LLC, known to me to be the per ,:,'Ps, s ..t tk who executed the foregoing instrument and
acknowledged that they executed, ` • saame as'sue fivers by its authority, for the purpose therein
contained. 'NOTAR ,
I
i s . i li A1..;. S i 1ts jII
• - ry F tfc i ebago County, Wisconsin
e. •
c c4s,=/ is permanent/expires: y 0 I 1
STATE OF WISCONSIN )
)ss
WINNEBAGO COUNTY )
Personally came before me thisocu 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.
o y Public, neba County, Wisconsin
My commission ' expires: /1--17 45
This document was drafted by:
David J. Praska, Asst. City Attorney
Oshkosh, WI 54902 -1130