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HomeMy WebLinkAboutWPS & Oshkosh/ Easement-June/22/2017 II 8 3 5 6 7 0 8 Tx:4259926 Temporary 1743118 Non-Exclusive Easement REGISTER'S OFFICE Document Number Document Title WINNEBAGO COUNTY, W1 RECORDED ON 06/30/2017 9.04 AM THIS EasernentAgreeinentisentered bito this l'dday of june, NATALIE STROHMEYER 2017,between the CITY OF OSHKOSH,215 Church Avenue,Oshkosh, Wiscolism O 54901, Grantor, and WISCONSIN PUBLIC SERVICE CORPORATION, 700 N REGISTER F DEEDS Adams,Green Bay,Wisconsin 54301,Grantee: RECORDING FEE 30.00 7 IN CONSIDERATION of the sumof One Dollar($1.00)and other good Recording Area PAGES: and valuable consideration paid by the Grantee,the receipt of which is hereby Name and Return Address acknowledged,the Grantor does hereby give and grant unto the Grantee,its City Attorney's Office successors and assigns,and Grantee accepts,a temporal)',non-exclusive,Easement PO Box 1130 eAo , over,under,and through the Grantor's Property as hereinafter described. OshkoshWI 54903-1130 I EASEMENT PURPOSE: The purpose of this temporary,non- 90800230000 exclusive Easement is to allow Grantee the opportunity to install two 90824342001 (2)soil vapor monitoring wells on the property as identified in this Parcel Identilication Number (PIN) Easement Agreement. The property,while now owned by the City,was previously owned by WPSC or a predecessor entity. Due to prior uses of the Property,WPSC has environniental obligations related to the Property,including periodic monitoring of its condition. The existence of the monitoring wells on the Property is a temporary condition,and this Easement shall expire as otherwise described in this Easement Agreement, To the extent that circumstances require additional time,locations,or numbers of wells,or actions on the Property,then the parties agree to negotiate such terms for a separate agreement to take effect apart from this Easement Agreement, 2. NON-EXCLUSIVITY: Grantee's use of the Easement Property will be non-exclusive. The monitoring wells will be placed within City property that is either actively used as public parkland or a public entertainment venue,or on City property used to support the public use of the parkland and entertainment venue. It is WPSC's responsibility to protect its monitoring wells and to ensure that its monitoring wells do not unreasonably disrupt the existing uses of the property by the City,the public,or others who are allowed to use the property. To the extent that conflicts arise between WPSCs environmental obligations and the City's use of the Property,the parties agree to balance any competing interests in good faith. 3. PROPERTY: A temporary,non-exclusive Easement within the Property is granted by the City,and accepted by WPSC over,under,and through certain land situated in the City of Oshkosh,Winnebago County,Wisconsin,(Property)and described as follows: Property located in the City of Oshkosh, Winnebago County,Wisconsin,and more particularly described as: Lot I of Certified Survey Mal)number 6809,recorded with the Winnebago County Register of Deeds on January 21,2014 as Document Number 6809,in L.M.Miller's Addition,in the East 1/2 of the Southwest 1/4 of Section 24,Township 18 North; Range 16 East,in the 8th Ward. And Part of Lots 10, 11,and 12,of L.M. Miller's First Addition,Block 18,Township 18 North,Range 16 East,in the Eighth Ward,City of Oshkosh,Winnebago County, Wisconsin,and further described as: Commencing at the northeast corner of Lot 12 also being the southwest comer of - Ceape Avenue and Broad Street;thence south along the west line of Broad Street, 314.20 feet to the true Point of Beginning;thence west at right angles to Broad Street, 115.00 feet;thence south parallel to Broad Street, 130.00 feet;thence east a right May 3, 2017 1 angles to Broad Street, 115.00 feet to the west line of Broad Street;thence North along the west line of Broad Street to the Point of Beginning. 4. LOCATION OF WELLS AND MAP: Although the Property description covers the entirety of two(2)City parcels, the Easement is beinggranted by the City to allow the installation ofmonitoring wells in certain locations only. A location map,attached as Exhibit A,identifies the location of the monitoring wells. For purposes of convenience in consideration of potential changed circumstances,the actual location of the monitoring wells may be anywhere within a twenty-five(25)foot by twenty-five(25)foot square surrounding the specific location identified in Exhibit A. 5. EASEMENT RIGHTS/LIMITATIONS: Grantor grants,and Grantee accepts,a temporary,non-exclusive Easement over,under,and through the Property to install monitoring wells as described in this Easement Agreement.. The rights and limitations of this Easement are as follows: a. WPSC shall be allowed to install,maintain,repair,replace,and remove soil vapor monitoring wells at the locations described in this Easement Agreement. WPSC may use other pants of the Property described to access the monitoring wells. However,WPSC access is subject to other existing facilities,features,and uses of the Property. b. The cost of installation,inspection,maintaining,repairing,replacing,and eventually removal shall be at WPSC's sole expense. Upon removal of the monitoring wells,the Property shall be returned to its condition prior to the installation of the monitoring wells except,however,the City's requirements shall not limit WPSC's ability and obligations to repair or remediate the site as required by the United States Environmental Protection Agency,and/or the Wisconsin Department of Natural Resources,or other entity with legal jurisdiction. o. Once installed,WPSC shall inspect the monitoring wells as are necessary to ensure that they remain clearly visible to those using the surface of the Property. d. WPSC 1s solely responsible for costs attributable to the monitoring wells that are required by the United States Environmental Protection Agency,Wisconsin Department of Environmental Protection,and/or other agency or entity having jurisdiction over the Property. e. WPSC will be installing the monitoring wells at a time in which the Property is actively used for summer recreation and events in the public park and at the nearby convention center,in the case of Riverside Park,and for large events,gatherings of spectators,and summer entertainment,in the case of the nearby Leach Amphitheater. To that end WPSC shall take the use of the summer usage of the Property into consideration when installing,maintaining,repairing,removing,or replacing the monitoring wells. In the event that WPSC believes that the foregoing requirement unreasonably limits its Easement rights in light of particular park, convention,or amphitheater events,then it shall contact the City and the parties agree to negotiate in good faith a resolution balancing WPSC's environmental monitoring obligations with the City's need to utilize its facilities during the crucial summer months. f. The use of the Easement includes monitoring only,and does not include or allow any environmental remediation that may arise fi-om such monitoring. 6. MAINTENANCE: Except as otherwise described in this Agreement,Grantor and Grantee shall be responsible,at their own expense,for inspection,maintenance,repairs,and replacements of their respective property and facilities within the property. a. In general terms,City is responsible for routhie maintenance and repair of its property,including the surface and any of its facilities below the surface. Examples of routine surface maintenance include care of grass,trees, shrubs,and other vegetation,and maintenance of hard surfaces and other improvements. b. Grantee is responsible for periodic inspections,routine maintenance and repairs of its monitoring wells while being used,and the removal of the monitoring wells at the completion of the testing,whether a part of the monitoring well is above ground or underground. Grantee is responsible for all damages sustained by tine Grantor or others caused by Grantee's use of the Easement. Grantee's responsibilities related to the surface include returning the surface area to a condition that is the same or similar to its condition prior to any maintenance,repairs,or other work related to Grantee's use of the Easement. May 3, 2017 2 c, Grantee shall be responsible for the cost of repairing or replacing any damage to the Grantor's facilities as may be required by the City,including without limitation driveways,drive aisles,parking areas,landscaping,storm water drainage,bio-filtration,lighting,and electrical facilities which is damaged or altered by Grantee's use of the Easement Property. Regarding repairs,replacements,and removal,the City understands that certain activities undertaken by WPSC may be subject to the riles and regulations of others,such as the United States j Environmental Protection Agency,and/or the Wisconsin Department of Natural Resources, The City's !f requirements for maintenance,repair,and replacement shall be in effect to the extent these City requirements do not conflict with the requirements of these other agencies. j d. Grantor shall be held harmless by Grantee for injuries or property damages to the City or third-parties that are caused in whole or in part by the location of the monitoring wells, to the extent that the actions of WPSC caused such damage. i 7. USE OF EASEMENT BY OTHERS: The Grantor agrees that the Grantee may temporarily assign the access and maintenance rights identified herein to any contractor,third party,or other person. Assignees must demonstrate to the Grantee that they have sufficient competence and must give adequate assurances that any work to be perfonnned in or around the Easement shall be conducted in a skillful maimer. Assignees must also protect the Grantor's interest in the Easement Property to the same extent as if the Grantee was itself performing the construction or maintenance. Grantee and Grantor are responsible to the other for damages caused by their respective employees,agents,and contractors. 8. DEFAULT: Except for emergency circumstances,if either Grantor or Grantee reasonably believes that the terms of this Easement have been breached,then written notification of the alleged breach shall be delivered to the other party. Any party in breach shall have sixty(60)days to cure any actual breach. In emergency circumstances,Grantee may immediately take all necessary actions to protect the safety and functioning of its monitoring wells, Similarly, in the event of an emergency the Grantor may act immediately and take all necessary actions to protect those using City property @-onn any issues related to the monitoring wells. 9. TERM: This Easement shall be temporary,with the parties'understanding of temporary to mean one(1)year from the date this-Easement Agreement is fully executed. This Easement Agreement shall provide benefits and burdens upon the parties',their successors and assigns. In the event that the results of WPSC's monitoring wells require additional time to perform additional activities on the property,the parties agree to act in good faith to negotiate any subsequent Easement Agreements that may be necessary, This document shall be recorded with the Winnebago County Register of Deeds at Grantee's expense. 10. EXISTING EASEMENTS: The City's property to be used by WPSC for temporary monitoring wells also contains other Easements for other utilities and for City electrical and other uses serving the property. WPSC shall have the obligation to ensure that the monitoring wells do not interfere with existing utilities,facilities,and structures owned by the City or others that are on the property. 11. WAIVER: No delay or omission by any party to this Easement Agreement in exercising any right or authority related to a term or condition shall be construed as a waiver of that right or authority. However,the notice and opportunity to cure provisions liereui shall remain a prerequisite to making a claim of default against the other party. 12. INVALID TERMS: If any term or condition of this Easement Agreement shall be held invalid or unenforceable by a court of competent jurisdiction,then the remainder of this Easement Agreement shall continue to be valid and enforceable to the fullest extent permitted by law. 13. NO THIRD PARTY BENEFICIARY: The terms of this Easement Agreement are for the benefit of the two parties identified,and it is not the intention of either the Grantor or Grantee that other persons or parties shall acquire any rights to enforce or benefit from through this Easement. 14. MUNICIPAL LIABILITY: Grantor incorporates into this agreement and reales upon its municipal limitations and immunities contained within Wisconsin law. Grantor's municipal immunities and limitations incorporated include, but are not limited to,Sections 345.05,893.80,and 893.83, Wisconsin Statutes. Except for actual physical damage to Grantee's facilities in the Easement Property,the aforementioned damage limits,caps and immunities shall be used to govern all disputes,contractual or otherwise,as they apply to the municipality and its agents,officers,and employees. May 3, 2017 3 15. GOVERNING LAW: This Agreement shall be construed and enforced in accordance with the laws of the State of Wisconsin. Venue for any action regarding this Agreement shall be the Winnebago County, Wisconsin,Circuit Court or, if a federal court action,then the appropriate district and/or branch within which Winnebago County is located. 16. NOTICES: Any notices required by this Easement Agreement shall be in writing and delivered via certified mail, return receipt requested,as follows. Changes to these addresses shall be in writing. In addition to format notification,both parties agree to take reasonable measures to keep the other party informed of issues or questions regarding the Easement Property. FOR THE GRANTOR: City of Oshkosh c/o Director of Parks 215 Church Avenue Oshkosh,WI 54902 FOR THE GRANTEE: Wisconsin Public Service Corporation c/o Kim M.Michiels j 700 N.Adams Street j Green Bay,WI 54301 17. AUTHORITY: The Grantee affirms that all approvals for this Easement Agreement necessary according to its corporate structure have been obtained and have approved the acceptance of the terms of this Easement Agreement, and that the undersigned has the authority to sign this Easement Agreement on behalf of the Grantee. Grantor affirms that all necessary boards and elected officials have approved the granting of this Easement,and that the undersigned have the authority without limitation to enter into this Easement Agreement. SIGNATURE.PAGES FOLLOW This instrument drafted by: Attorney David J.Praska Oshkosh,WI 59903-1130 May 3, 2017 4 IN WITNESS WHEREOF,said Grantor and Grantee have hereunto set their hand and seal the day and year first above lvritten. WISCONSIN PUBLIC SERVICE CORPORATION By:= Kim M. Michiels,y_eAf , . (title) STATE OF WISCONSIN ) ss. BROWN COUNTY } Personally came before me this day of 2017, the above-named Kimi1g1�' of • i Wisconsin Public Service Corporation to me known to be sucl person who executed the foregoing document that they executed the same as such officers by its authority, for the purpose therein contained. 140 d i Notary Public, State of Wisconsin do My Commission expires: W fA 1v I lip CITY OF OSHKOSH By: And: Mark A.Rohloff,City Manager Pamela R. Ubrig,City Clerk STATE OF WISCONSIN ) ss. WINNEBAGO COUNTY ) Personally came before me this c?dy)CL day of JUnt 2017, the above-named ftfY- k RLIEJD >, and ameja R.(J by) of the City of Oshkosh to me known to be such person(s)who executed the foregoing document and acknowledged that they executed the same as such officers by its authority, for the purpose therein contained. 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