HomeMy WebLinkAboutPrivilege in Street Agreement Wisconsin Public Service Court Street •
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PRIVILEGE IN STREET AGREEMENT
This agreement is between Wisconsin Public Service Corporation., 700 North Adams Street, Green
Bay,Wisconsin 54301,and the City of Oshkosh,215 Church Avenue,Oshkosh,Wisconsin 54901. Each-party
agrees that good and sufficient consideration as described or referenced in this document has been given to,
and received from the other as part of this agreement.
The City of Oshkosh,through Common Council Resolution/ 19—331' , which was passed
on April, lit 2019, has granted to Wisconsin Public Service a privilege within the City's right-of-way for
the following purpose:
A. Collecting soil from ten (10) soil borings and converting two (2) of those soil borings
into permanent groundwater monitoring wells in the City of Oshkosh right-of-way.
Three soil borings will be advanced in the Ceape Avenue right-of-way near the
intersection with Court Street; and the remaining seven soil borings will be in the Court
Street right-of-way south of the Ceape Avenue intersection except for one soil boring
that will be advanced north of that intersection.
B. The monitoring wells and soil borings shall be located as specified in the attached
Exhibit A,which is incorporated as a term of this Agreement; however, for purposes of
convenience in consideration of potential changed circumstances, the actual location of
the monitoring wells and soil borings may be anywhere within a fifteen (15) foot by
fifteen (15) foot square surrounding the specific locations identified in Exhibit A,except
not in the roadway other than SB213 (north of Ceape Avenue). In consideration of the
operation, preservation,and ability to maintain and repair City utilities and facilities
within the public right-of-way,the precise location of monitoring wells and soil borings
will be a joint decision made in real time in the field by authorized representatives of the
City and WPSC, and the City's prior approval shall not be unreasonably withheld. The
City's approval of any precise location of any boring or monitoring well shall not act as
a waiver or modification of any WPSC obligation or liability pursuant to this
Agreement or any other applicable agreement or law.
C. As an additional contingency, soil borings in addition to those shown on Exhibit A
may also be advanced at step out locations as necessary to define the limits of soil
contamination. The exact step out locations of any additional contingency soil borings
will be limited to the hatched areas shown on Exhibit A and will be selected based on
field observations during the investigation. In consideration of the operation,
preservation, and ability to maintain and repair City utilities and facilities within the
public right-of-way, the precise location of each step out location will be a joint decision
made in real time in the field by authorized representatives of the City and WPSC, and
the City's approval shall not be unreasonably withheld. The City's approval of any
precise location of any step out boring shall not act as a waiver or modification of any
WPSC obligation or liability pursuant to this Agreement or any other applicable
agreement or law.
D. The two monitoring wells, both located in the Court Street right-of-way as shown on
Exhibit A,shall extend no higher than surface level,and shall at all times be visible at
the surface. The monitoring wells shall be abandoned at WPSC expense at the end of
monitoring activity when approved by USEPA.
Wisconsin state law provides that by its acceptance of this privilege, WPSC shall be responsible for
damages to person or property by reason of the granting of the privilege. WPSC, by virtue of its signature
below,specifically affirms that it understands the extent of its responsibility and liabilities and accepts all such
legal obligations.
The City of Oshkosh,a Municipal Corporation,grants permission to WPSC,to advance ten(10)soil
borings, abandon eight (8) of those soil borings and convert the remaining two borings into permanent
groundwater monitoring wells within the public right-of-way at locations generally described in Exhibit A.
Terms and conditions placed upon WPSC are incorporated from the Non-Exclusive Easement attached as
Exhibit B. The following are additional terms and conditions:
I. WPSC shall take all necessary actions to ensure that the monitoring wells are visible from the
surface.
2. WPSC agrees that it is solely responsible for all costs and actions related to the purpose of this
Agreement. WPSC's responsibilities begin from the commencement of this project and continue
until such time as the monitoring wells in the public right-of-way are abandoned.
3. WPSC shall assume full liability for damages to person or property by reason of the actions of its
employees, agents, general contractors, subcontractors, and any other person and entity
performing work relating to the soil borings and monitoring wells.
4. WPSC agrees to indemnify, hold harmless,and release the City from and for any claims by any
person or entity asserted against the City for damage to person or property resulting from any
activities covered by this Agreement (the"Activities").
5. WPSC agrees to correct and repair any damage to the City's property resulting from the Activities
and to reimburse the City for any cost or expense it may incur as a result of the Activities.
6. In the event WPSC will be boring into any street surface,whether for initial sampling, future step
outs, or for the purposes of installing a monitoring devices, WPSC shall follow all City
requirements for repairing,or backfilling,such surface disruptions,including: 1)there is only one
boring per concrete panel; 2) no boring shall be closer than two (2) feet from any joint; 3) the
maximum diameter of any boring cannot exceed ten (10) inches; and the boring is filled with
approved material as identified in the City's standard specifications attached as Exhibit C,as may
be amended in the future. In those circumstances when the boring into any street surface will be
backfilled and patched,then backfill material(e.g. bentonite,Portland cement)shall be placed into
the borehole from the bottom to within 30 inches of the ground surface. Sand will then be placed
above backfill material in 10-inch lifts to ensure compaction and pavement replaced in accordance
with Exhibit C. In the event that any of the preceding requirements are not followed,then the full
street panel must be replaced. WPSC shall provide the City with all reasonable documentation
regarding the repair, backfilling, or replacement.
7. In the event WPSC will be boring into any sidewalk surface for sampling,whether the sampling is
related to the initial borings or future step outs,then the entire sidewalk square must be replaced at
the conclusion of the sampling. WPSC shall provide the City with all reasonable documentation
regarding the replacement.
8. One of the material considerations of the City for entering into this Agreement is the ability of the
City to be aware of any environmental challenges that may exist upon and within its public right-
of-way. To that end, WPSC agrees to provide the City with copies of final reports, data,
summaries,and other information that is submitted to USEPA, WDNR,or other regulatory body.
The City's copy shall be provided at the same time as it is approved by the regulatory body, or
within seven calendar days thereafter. Notwithstanding the foregoing, in the event that reports,
data,summaries,or other information,whether preliminary or final, is prepared for submission to
a regulatory body,and the report,data,summary,or other information may present a reasonable
likelihood that the City's use of its property will be affected,then such report,data,summary,or
other information shall be provided to the City at least five(5)business days before submission to
the regulatory body.
9. The City understands that representatives from US EPA, WDNR,their respective contractors,or
other regulatory body retaining jurisdiction over the Activities to be performed by WPSC pursuant
to this Agreement may inspect the borings, monitoring wells and other actions taken by WPSC
pursuant to this Agreement However,while a regulatory body may be take actions or performing
inspections based on this Agreement, neither the regulatory body nor any other person or entity
will be considered third-party beneficiaries to this Agreement.
10. In the event a monitoring well is abandoned at some point in the future,then the monitoring well
shall be removed at least thirty-six(36)inches from the surface and thereafter abandoned pursuant
to the rules of the WDNR or other regulatory body,whichever provides the more strict standards.
11. In the event that a monitoring well has been installed in the right-of-way and that placement
adversely affects the City's future use of or project within the right-of-way,then the parties shall
enter into good faith discussions about relocation options for the monitoring well. Additionally,
WPSC agrees to afford the City the opportunity to participate and comment as part of relocation
discussions between WPSC and EPA/WDNR.
12. This agreement does not supersede or modify WPSC's requirement to obtain a right-of-way
permit to perform the activities subject to this Agreement.
13. WPSC agrees that this agreement shall be liberally construed in favor of the City of Oshkosh, in
consideration of the privilege granted by the City.
WPSC shall not assign, convey, or transfer this privilege to any other person or entity without the written
consent of the City of Oshkosh. The restriction in the previous sentence does not include contractor's
performing work to carry out the purpose of this Agreement. The privilege is subject to all terms and
conditions contained in any authorizing resolution adopted by the City of Oshkosh Common Council. By
executing this Agreement and by using the privilege,the undersigned agrees to fully abide by all terms and
conditions, and all State of Wisconsin requirements,whether by statute or administrative rule. The statutory
requirements as of the date of this agreement include Section 66.0425, Wisconsin Statutes, but future
amendments and/or renumbering shall also apply. This privilege may be revoked for any lawful reason,
including but not limited to for noncompliance with the authorizing resolution and this Agreement.
WISCONSIN PUBLIC� SERVICE CORPORATION
By: l\An.A__ i1 l . filkitA.
Kim M. Michiels, (tepd-
(title)
STATE OF WISCONSIN )
) ss.
BROWN COUNTY )
Personally came before me this d day of , 2019, the above-named Kim M.
Michiels of Wisconsin Public Service Corporation to me known to be such person who executed the foregoing
document and acknowledged that they executed the same as such officers by its authority, for the purpose
therein contained. (
esafl Cite ti idild.40.—. C
ea.46
Notary Public, State of Wiscon in /
G) No o My Commission expires: ( //? lei -)
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CITY OF OSHKOSH
By: d� —z< � And:
Mar A. Rohloff, City Manager Pame a R. Ubrig,City Clerk
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY
Personally came before me this V-,' day of 144-1 , 2019, the above-named
and V 'MG.I.11 p-1 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. �(1
Notary Public, State of Wisconsin
My Commission a fires:
Attachments: Exhibit A: Boring and Monitoring Well Locations within Right of Way
Exhibit B: Non-Exclusive Easement
Exhibit C: Section 1350: Concrete Pavement Core Hole Patching, from the City's standard
specifications.
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0 45 90 6:- PROPOSED SOIL BORING LOCAnoN
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WELL
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PS PARCEL BOUNDARY(CRY OF OSHKOSH PARCEL
NEWER)
DRAWN BY/DATE: 2019 PRIVILEGE IN STREET AGREEMENT PROJECT NO:97988
MPG 4/16/19 EXHIBIT A
REVIEWED 4//;BY/DATE
BORING AND MONITORING WELL LOCATIONS WITHIN RIGHT OF WAY EXHIBITA
APPROVED BY/DATE
PFK4/16/1er1e FORMER OSHKOSH MANUFACTURED GAS PLANT6
WISCONSIN PUBLIC SERVICE CORPORATION
OSHKOSH,WISCONSIN
EXHIBIT B to Privilege In Street Agreement: NON-EXCLUSIVE EASEMENT
(see attached)
Non-Exclusive Easement
Document Number Document Title
THIS Easement Agreement is entered into this day of
,2019,between the CITY OF OSHKOSH,215 Church Avenue,
Oshkosh, Wisconsin 54901,Grantor(or the"City"), and WISCONSIN PUBLIC
SERVICE CORPORATION,700 N.Adams, Green Bay, Wisconsin 54301,Grantee
(or"WPSC"):
Recording Area
IN CONSIDERATION of the sum of One Dollar($1.00)and other good Name and Return Address
and valuable consideration paid by Grantee,the receipt of which is hereby City Attorney's Office
acknowledged,Grantor does hereby give and grant unto Grantee, its successors and PO Box 1130
assigns,and Grantee accepts,a non-exclusive easement(the "Easement")over, Oshkosh,WI 54903-1130
under,and through Grantor's Property as hereinafter described. 90800230000
I. EASEMENT PURPOSE: The purpose of this non-exclusive 90824342001
Easement is to allow Grantee rights on the Property,as identified in 90800210000
this Easement Agreement, for environmental investigations and Parcel Identification Number (PIN)
verification of environmental conditions. The specific activities allowed include:(a)the installation of
two(2)new groundwater monitoring wells,(b)the retroactive authorization of nine(9)existing
groundwater monitoring wells,and(c)the renewed authorization of one(1)of the four(4)soil gas
monitoring wells previously approved by the City on June 22,2017 (groundwater monitoring wells and
soil gas monitoring wells collectively referred to as"monitoring wells" herein). In addition,this
Easement also allows Grantee access to the Property to collect soil samples from soil borings that will be
advanced at locations described herein and the boreholes abandoned within 24 hours of sample
collection.
The Property, while now owned by the City,was previously owned by WPSC or a predecessor entity(or
is adjacent to such property previously owned by WPSC or a predecessor entity). Due to prior uses of
the Property, WPSC has environmental obligations related to the Property, including periodic monitoring
of its condition. The existence of the monitoring wells and soil borings on the Property is a requirement
of the U.S. Environmental Protection Agency("USEPA"). To the extent that circumstances require
additional locations or numbers of wells or borings,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 and soil borings have been or 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. Monitoring wells shall be mounted flush with
the ground surface.To the extent that conflicts arise between WPSC's environmental obligations and the
City's use of the Property,the parties agree to balance any competing interests in good faith.
3, PROPERTY: A 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(the "Property")and described as follows
Property located in the City of Oshkosh, Winnebago County, Wisconsin,and more particularly described as:
Lot 1 of Certified Survey Map 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. (Riverside Park Property)
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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 corner 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
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.(sewer lift station property)
And
That part of lots 1 through 12 in block 18 of L.M. Millers First Addition to the City of
Oshkosh,in the 8th Ward,City of Oshkosh, Winnebago County,Wisconsin,bounded
and described as follows: Beginning at the N.E.corner of lot 12 in said block,thence
North 76°07'16" West along North line of said block(and the South line of Ceape Avenue)
483.60 ft.,thence South 13°04'01" West along the West line of said block(and the Easterly
line of Court Street)580.00 ft.to the beginning of a meander line running 20 ft.more or less
Northerly of the Northerly bank of the Fox River,thence South 56°13'56" East along said
meander line 513.46ft.to a point on the West line of Broad Street(and the East line of said
block)and the end of said meander line,thence North 13°18'46" East along the East line of
said block 140.85 ft.,thence North 76°39'25"West 135.00 ft.,thence North 13°18'46"East
170.00 ft.,thence South 76°39'25" East 20.00 ft.,thence North 13°18'12"East 129.86 ft.,
thence South 76°44'50"East 115.03 ft.to a point on the East line of said block,thence North
13°18'46"East along said East line 313.77 ft.to the point of beginning.Said parcel contains
6.5166 acres,more of less,to the described meander line and is subject to all easements and
restrictions of record.(Leach Property)
4. LOCATION OF WELLS BORINGS AND MAP: Although the Property description covers the entirety of three
(3)City parcels,the Easement is being granted by the City to allow the installation of monitoring wells and to
undertake soil borings in certain locations only. A location map,attached as Exhibit A, identifies the location of
the monitoring wells. A location map,attached as Exhibit B,identifies the known location of soil borings plus
two soil borings that will be converted into new monitoring wells(which are also shown on Exhibit A). For
purposes of convenience in consideration of potential changed circumstances,the actual location of the
monitoring wells and soil borings may be anywhere within a fifteen(15)foot by fifteen(15)foot square
surrounding the specific locations identified in Exhibit A and Exhibit B,except not in a roadway other than
SB213 (north of Ceape Avenue). As an additional contingency,soil borings in addition to those shown on Exhibit
B may also be advanced at step out locations as necessary to define the limits of soil contamination. The exact
step out locations of any additional contingency soil borings will be limited to the hatched areas shown on Exhibit
B and will be selected based on field observations during the investigation. In the event the precise location of a
soil boring,or monitoring well,originally identified as being within City Property subject to this Easement is
requested to be in adjacent public right-of-way,then that boring or monitoring well shall be subject to a separate
privilege in the street agreement. In consideration of the City's ability to protect and maintain its property,the
precise location of each monitoring well and soil boring,whether an initial boring or as part of the step out
investigation,will be a joint decision made in real time in the field by authorized representatives of the City and
WPSC,and the City's prior approval shall not be unreasonably withheld.The City's approval of any precise
location of any boring or monitoring well shall not act as a waiver or modification of any WPSC obligation or
liability pursuant to this Agreement or any other applicable agreement or law.
5. EASEMENT RIGHTS/LIMITATIONS FOR MONITORING WELLS AND SOIL BORINGS: Grantor grants,
and Grantee accepts a non-exclusive Easement over,under,and through the Property to install monitoring wells as
described in this Easement Agreement.Grantor also grants and Grantee accepts a temporary non-exclusive
Easement over,under and through the Property to collect soil samples from soil borings that will be abandoned
within 24 hours of sample collection. The rights and limitations of the Easement for monitoring wells and soil
borings are as follows:
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a. WPSC shall be allowed to install,sample, maintain,repair,replace,and abandon monitoring wells at the
locations shown on Exhibit A to this Easement Agreement. WPSC also shall be allowed to collect soil
samples from soil borings at the locations shown on Exhibit B. The soil borings will be advanced,soil
samples collected,and the boreholes backfilled within 24 hours of sample collection. The top foot of
backfill will be matched to the material found at the surface surrounding the boring. As an additional
contingency,soil borings in addition to those shown on Exhibit B may also be advanced at step out locations
as necessary to define the limits of soil contamination. The exact step out locations of any additional
contingency soil borings will be limited to the hatched areas shown on Exhibit B and will be selected based
on field observations during the investigation. WPSC may use other parts of the Property described to
access the monitoring wells and soil borings. 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 abandonment shall be at
WPSC's sole expense. Monitoring wells that are abandoned must be removed no less than thirty-six(36)
inches below the surface level, and thereafter abandoned pursuant to USEPA and/or WDNR requirements.
Upon abandonment of the monitoring wells and soil borings,the Property shall be returned to a condition
that is similar to its condition prior to the installation of the monitoring wells or soil borings except,
however,the City's requirements shall not limit WPSC's ability and obligations to repair or remediate the
site as required by the USEPA,and/or the Wisconsin Department of Natural Resources("WDNR"),or other
entity with legal jurisdiction. It is understood that the preceding description of WPSC's rights refer to its
rights upon the abandonment of any monitoring well. In the event that remediation or repair of the overall
City Property may be required by a regulatory body,the parties agree to communicate and enter into
substantive good faith discussions regarding proceeding with such repair or remediation taking the City's use
of the Property into consideration.
c. 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 is solely responsible for costs attributable to the monitoring wells and soil borings that are required
by the USEPA, WDNR,and/or other agency or entity having jurisdiction over the Property.
e. WPSC will be installing the monitoring wells and soil borings 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, replacing, or abandoning the monitoring wells and soil
borings. 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 from such monitoring. While this Easement Agreement authorizes certain
additional step out borings,the allowance of such additional borings do not allow or imply the allowance of
any subsequent remediation activities on the City's property.
g. WPSC agrees to provide the City with, at a minimum,copies of final reports,data,summaries, and other
information related to its activities pursuant to this Easement Agreement that is submitted to USEPA,
WDNR, or other regulatory body. The City's copy shall be provided at the same time as it is approved by
the regulatory body,or within seven calendar days thereafter. Notwithstanding the foregoing, in the event
that reports,data,summaries, or other information,whether preliminary or final, is prepared for submission
to a regulatory body, and the report, data, summary,or other information may present a reasonable
likelihood that the City's use of its property will be affected,then such report,data,summary,or other
information shall be provided to the City at least five(5)business days before submission to the regulatory
body.
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h. The parties have entered into a separate Privilege in Street Agreement related to similar activities to be
performed on adjoining public right-of-way owned and controlled by the City. The terms of that agreement,
attached hereto as Exhibit C,are hereby incorporated into this Easement Agreement. To the extent any term
in this Easement Agreement conflicts with a term in the Privilege in Street Agreement,the term in the
Privilege in Street Agreement shall control.
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 routine 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. To the extent
that City maintenance or other planned projects or activities on the Property could destroy or damage an
existing or new monitoring well, the City will provide Grantee at least ten (10)business days advance notice
of the activity. The parties agree to discuss in good faith any options available regarding the protection,
removal,or replacement of the monitoring wells, recognizing that WPSC must obtain the approval of
USEPA and/or WDNR for monitoring well removal and/or replacement(the"EPA/WDNR Discussions").
WPSC agrees to afford the City the opportunity to participate and comment as part of the EPA/WDNR
Discussions. If,after those good faith discussions, the monitoring well must be moved or replaced and the
removal and/or replacement has been approved by USEPA and/or WDNR, WPSC shall remove and/or
replace the monitoring well at its cost. In addition, in the event that future City projects require the removal
of part or all of an already abandoned well,then WPSC shall be notified of the required removal and shall
cause the removal to occur at its cost.
b. Grantee is responsible for periodic inspections, routine maintenance and repairs of its monitoring wells while
being used,and the abandonment 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
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 similar to its condition prior to any maintenance,
repairs, or other work related to Grantee's use of the Easement.
c. Grantee shall be responsible for the cost of repairing or replacing any damage to 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. Regarding repairs, replacements,and abandonment,the City understands
that certain activities undertaken by WPSC may be subject to the rules and regulations of others,such as the
USEPA, and/or the WDNR. The City's requirements for maintenance, repair,and abandonment shall be in
effect to the extent these City requirements do not conflict with the requirements of these other agencies,
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 and/or soil borings,to the extent that
the actions of WPSC caused such damage.
7. USE OF EASEMENT BY OTHERS: Grantor agrees that the USEPA,the WDNR, and their respective
representatives,contractors and subcontractors may access the Easement Property to inspect the monitoring wells
and other actions undertaken by WPSC pursuant to this Easement Agreement. In addition, Grantee may
temporarily assign the access and maintenance rights identified herein to any contractor,third party, or other
person. Assignees must demonstrate to Grantee that they have sufficient competence and must give adequate
assurances that any work to be performed in or around the Easement areas shall be conducted in a skillful manner.
Assignees must also protect Grantor's interest in the Easement areas to the same extent as if Grantee was itself
performing the construction or maintenance. Grantee and Grantor are responsible to the other for damages on or
about the Property 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.
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Similarly, in the event of an emergency the Grantor may act immediately and take all necessary actions to protect
those using the Property from any issues related to the monitoring wells.
9. TERM: This Easement shall not expire until such time as the USEPA and/or the WDNR approves the
abandonment by WPSC of the monitoring wells. Upon receiving any notice approving the abandonment of the
monitoring wells allowed by this Easement Agreement, WPSC shall promptly notify the City of the same. 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 performance of additional activities on the Property as
may be required by USEPA and/or WDNR,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 monitoring wells and soil borings 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 and soil borings 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 herein 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 arc for the benefit of the two
parties identified. It is not the intention of either Grantor or Grantee that other persons or parties shall acquire any
rights to enforce or benefit from through this Easement. It is understood that underlying regulatory requirements
of USEPA and/or WDNR may have resulted in the City and WPSC entering into this Easement Agreement.
However, neither USEPA nor WDNR shall obtain or retain any rights or benefits through this Agreement,other
than access rights pursuant to paragraph 7 above,and the existence of this Easement Agreement shall not affect
their regulatory rights,which shall remain the same as existed prior to this Easement Agreement or as otherwise
are altered or provided by law. No regulatory agency,however, shall acquire benefits through this Agreement.
14. MUNICIPAL LIABILITY: Grantor incorporates into this agreement and relies upon its municipal limitations and
immunities contained within Wisconsin law. Grantor's municipal immunities and limitations incorporated
include, but arc 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.
l5. 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.
I6. NOTICES: Any notices required by this Easement Agreement shall be in writing and delivered via certified mail,
return receipt requested,or by overnight commercial courier,as follows. Changes to these addresses shall be in
writing. In addition to formal 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
5
FOR THE GRANTEE:
Wisconsin Public Service Corporation
c/o Real Estate/Kim M. Michiels
700 N.Adams Street
Green Bay, WI 54301
17. AUTHORITY: 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 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.
This instrument drafted by:
Attorney David J. Praska
Oshkosh,WI 54903-1130
IN WITNESS WHEREOF,said Grantor and Grantee have hereunto set their hand and seal the day and year first
above written.
WISCONSIN PUBLIC SERVICE CORPORATION
By: --
Kim M. Michiels,
(title)
STATE OF WISCONSIN )
) ss.
BROWN COUNTY )
Personally came before me this day of ,2019,the above-named Kim M, Michiels
of Wisconsin Public Service Corporation to me known to be such person who executed the foregoing document and
acknowledged that they executed the same as such officers by its authority, for the purpose therein contained.
Notary Public, State of Wisconsin
My Commission expires:
6
CITY OF OSHKOSH
By: _ And:
Mark A. Rohloff, City Manager PamelaR.Ubrig,City Clerk
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this day of _ , 2019, the above-named
and 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.
Notary Public, State of Wisconsin
My Commission expires:
Approved As To Form:
By:
Lynn A. Lorenson,City Attorney
Attachments: Exhibit A: Monitoring Well Locations
Exhibit 13: Soil Boring and Monitoring Well Locations Installed in 2019
Exhibit C: Priviiege in Street Agreement
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PROJECT NO:67968
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DRAWN BY/DATE: 2019 EASEMENT AGREEMENT
MPG 4/12/19 EXHIBIT B PROJECT NO.87988
REVIEWED BY/DATE:
PFK 4/12/19 SOIL BORING AND MONITORING WELL LOCATIONS INSTALLED IN 2019 EXHIBIT
APPROVED 2 DATE:
PFK 4/12/111 9 FORMER OSHKOSH MANUFACTURED GAS PLANT
WISCONSIN PUBLIC SERVICE CORPORATION ■
OSHKOSH,WISCONSIN
EXHIBIT C TO PRIVILIGE IN STREET AGREEMENT
SECTION 1350
CONCRETE PAVEMENT CORE HOLE PATCHING
1350.1 Description
1. This Section describes the materials, supplies, and incidentals necessary in performing all
preparation,placement,finishing,and protection for the construction of full-depth core hole
patching in concrete pavement.
1350.2 Materials
1. Use only the pre-approved product materials listed in this Section or an Approved Equal
only when given written approval by the ENGINEER.
APPROVED CONCRETE PATCH PRODUCT
PRODUCT LIST MANUFACTURER
HD 50 Dayton Superior
Pave Patch 3000 Dayton Superior
Rapid Road Repair Quikrete
Duracal Cement USG Industrial
Highway Patch Five Star
Polypatch FR US Spec
•
1350.3 Construction
1. The CONTRACTOR shall follow all applicable manufacturer's specifications as it applies to
each individually-approved cementitious product to properly repair the core hole. The core
patch shall be finished in such a manner that all excess material or defects are properly
removed while the mortar is still plastic to the extent necessary, such that only a flush
surface with the adjacent concrete pavement remains. Core patching shall only be placed
where allowed in conformance with Chapter 25 Section 25-20 (C) and Chapter 25 Section
25-22 of the Municipal Code of the City of Oshkosh.
1350.4 Curing and Protection
1. The CONTRACTOR shall protect the pavement core patch for a minimum of three(3)hours
following the installation and finishing of the core patch or until it reaches a compressive
strength of 3,000 psi, whichever takes longer. Traffic shall be excluded from the pavement
core patch by erecting and maintaining proper traffic control measures, as required by the
Manual of Uniform Traffic Control Devices(MUTCD).
2019 Specifications Page 1 of 1