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CCR1996183COMMON COUNCIL - CITY OF MUSKEG0 RESOLUTION #183-96 BETWEEN THE WISCONSIN ELECTRIC POWER COMPANY AUTHORIZATION TO EXECUTE LICENSE AGREEMENT AND CITY OF MUSKEG0 (Highway 36 Recreation Trail) WHEREAS, the establishment of a new recreation trail along Highway 36 between North Cape Road and Muskego Dam Drive is proposed; and WHEREAS, a License Agreement between Wisconsin Electric Power Company and the City of Muskego will have to be executed as the new trail is along a portion of WEPCO's right of way; and WHEREAS, the Finance Committee has reviewed the License Agreement and recommended approval of the same. NOW, THEREFORE, BE IT RESOLVED that the Common Council of the City of Muskego, upon the recommendation of the Finance Committee, does hereby approve the attached License Agreement Between the Wisconsin Electric Power Company and the City of Muskego for a new recreation trail along Highway 36. BE IT FURTHER RESOLVED that the Mayor and Clerk-Treasurer are authorized to execute the Agreement on behalf of the City. I DATED THIS 13TH DAY OF AUGUST , 1996. 1 SPONSORED BY: FINANCE COMMITTEE Ald. Domonic D'Acquisto Ald. David J. Sanders Ald. Mark Suhr This is to certify that this is a true and accurate copy of City of Muskego. Resolution #183-96 which was adopted by the Common Council of the 8/96 jmb LICENSE THIS LICENSE, Made and entered into this - day of WISCONSIN ELECTRIC POWER COMPANY, a Wisconsin corporation (hereinafter referred to as , 1996, by and between Licensor), and CITY OF MUSKEGO. a municipal corporation (hereinafter referred to as Licensee); WITNESSETH: Licensor, for and in consideration of the covenants, conditions, and agreements hereinafter contained, hereby grants license and permission unto Licensee, to develop and use a part of Licensots right of way and substation lands for hiking, biking and cross-country ski trails for use by the general public and for no other purpose or purposes whatsoever (except those purposes as may be determined by Licensor for its own use), which part of said Licensots premises is described as part of the Northeast 114, Northwest 114 and Southwest 114 of Section 25; part of the Southeast 114 and Southwest 114 of Section 26; part of the Northwest 114 of Section 35; and part of the Northeast 114 and Northwest 114 of Section 34, all in Township 5 North. Range 20 East, City of Muskego. Waukesha County, Wisconsin, the general route of which is highlighted in yellow on Exhibit "A attached hereto and made a part hereof. It is agreed, however, that Licensee shall not be obligated by reason of this agreement to develop or open all of the right of way at any one time; and, that until it develops or opens the trail on a particular segment of the right of way paragraphs f., 8., 10.. ll., 12., 13.. and 18., shall not apply. Once a trail is opened on a particular segment of right of way such paragraphs shall apply to the full width of the right of way. The license and permission herein granted is subject to the following conditions: 1 The term of this agreement shall be for a period of 5 years commencing from the date on which operation of the trail begins. As a condition of this agreement, the Licensor, at its sole discretion. may close down such parts of the trail for such periods of time as it may deem necessary for any purpose in connection with its operations or for such other purpose as Licensor may deem necessary. In the event Licensor closes down said trail for any purpose pursuant to this paragraph, it is agreed between the parties hereto that the terms of this agreement shall be extended for a period of time equal to the period of time the trail is closed so that the Licensee has the use of the right of way for a full 5 years. This license may be terminated at any time by either party hereto by mailing 90 days prior written notice to the other party of such termination. The mailing of such notice in accordance with the provisions of days after receiving notice of terminalion from Licensor, at its sole cost and expense, relocate andlor re- Paragraph 23 hereof shall be deemed to be sufficient service thereof, Licensee shall not later than 90 route the bicycle trail from such part or parts of the right of way to public streets or to locations on lands of others. Licensee's termination hereunder shall be subject to the obligation to comply with the provisions of Paragraph 14. 2. Licensee has examined the herein-described premises and knows the condition thereof and no or improvements in or about the licensed premises have been made by Licensor Licensor shall not be representations as to the condition and repair thereof and no agreements to make any alterations, repairs liable for any damages arising from acts or neglect of Licensee or ils invilees or users of the described premises who enter the premises for the purposes herein set forth to-wit: hiking, biking and cross- country ski trails. 3. Licensee will neither use nor permit the use of the herein-described premises for any purpose or purposes other than hereinbefore specified. Licensee shall not assign this license nor permit any transfer by operation of law of the interest in the herein-described premises acquired through this license. F\RE\WWORMnBIKEl.LA. 1011193 June 18.1996 4. Licensee will not install, erect or construct or permit to be installed, erected or constructed, any specifications to Licensor and receiving Licensots approval thereof. Licensee shall not place or maintain improvements upon, or make any alterations to the licensed premises without first submitting plans and the licensed premises at any time, except as required by Paragraph 20 hereof. However, Licensee may or allow to be placed or maintained by any person or persons, any signs or advertising billboards upon install and maintain such small, neat and inoffensive signs as are necessary to identify Licensee's occupancy of the herein-described premises, provided such signs are approved by Licensor before erection or installation. 5. Licensee shall have the right and privilege at its sole cost and expense, lo grade, level, and apply crushed stone andlor asphalt paving or plant grass on the licensed premises except that the Licensee shall not in any manner alter or change the original ground grade level of the licensed premises, nor change the grade of or alter in any manner the drainage swale or ditch on the licensed premises wilhout obtaining written permission from Licensor. Licensee shall not plant any trees or shrubs on the herein- described premises without the express written permission of the Licensor Licensor, at its sole discretion. may require Licensee to install such drainage facilities as Licensor may deem necessary to adequately drain the licensed area, which facilities are made necessary due to or arising out of any filling, grading, leveling, paving or other use by the Licensee hereunder. All such drainage facilities and all such installations shall be installed to the complete satisfaction of Licensor. Premises shall be (including culverls, storm sewers, ditches, etc.) shall be installed by and at the expense of the Licensee kept mowed and free of weeds to the satisfaction of the local Weed Commissioner and at the sole cost and expense of Licensee. Licensor reserves the right at its discretion lo trim andlor cut down any existing trees and shrubs omthe licensed premises. Licensee agrees that it will maintain the licensed premises as a biking, hiking and ski trail, and will perform grass mowing and other landscaping maintenance necessary to maintain an appearance suitable to such use as a biking, hiking and cross- country ski trail. Licensee agrees to keep the licensed premises clean and free from all kinds of debris, rubbish and trash that may be deposited on the premises by the public. Licensee shall, if requested, place garbage or litter containers at convenient locations on said premises. Such litter containers shall be emptied on a regular basis by Licensee so as not lo create a nuisance on said premises. 6. Licensee shall provide or arrange for the provision of all police protection as may be required lo enforce all of the provisions of this agreement and maintain law and order on said premises. 7 As a condition of the agreement. Licensee agrees that it will not charge at any time any user fee for the use of the licensed premises except that Licensee may be permitted to charge a fee for group activities or special events upon written consent of Licensor, which consent shall not be unreasonably withheld. 8. Licensee hereby agrees that Licensor has made no representations that the licensed premises are properly zoned for the proposed use by Licensee, and it is expressly understood that Licensee hereby assumes any and all obligations and responsibilities with respect to any zoning laws and ordinances of any regulatory bodies which may have jurisdiclion. This license is conditioned on Licensee's obtaining necessary use permits or authority for the proposed use by Licensee. Any permits required hereunder shall be acquired by Licensee at its sole cost and expense. Licensee hereby agrees that it will seek no change in the zoning of said premises and understands and agrees that Licensor does not grant Licensee the right or authority by the terms of this license at any time to have the licensed premises rezoned for the use hereinbefore stated. 9. Licensee hereby covenants and agrees it will not suffer or permit any construction lien or other such lien to attach to the licensed premises by reason of any improvements upon or alterations to the licensed premises or work done thereon by or upon the order of Licensee and will save and keep harmless Licensor and the licensed premises from any such lien or claim therefore and from any and all cost or expense incurred in connection with any such lien or claim. -2- having entered the licensed premises at the invitation of Licensee for the purposes set forth in the 10. Licensee hereby agrees that in the event Licensee or anyone other than Licenso1's employees, license to-wit: hiking, biking and cross-country ski trails, Licensee, damages any tower, pole, fencing or any other facilities or equipment of Licensor, Licensee will promptly reimburse Licensor for any and all expenses incurred in the repair of such damage upon presentation of an invoice therefor damage and expense, including attorney's fees incurred by Licensor on account of any injury to or death 11 Licensee hereby agrees to save harmless and indemnify Licensor against all loss. cost, liability. of any person or persons whomsoever or on account of damage to property sustained by any person or persons whomsoever caused by, connected with or arising directly or indirectly. wholly or in part, from any use or operation of the licensed premises resulting in any manner from the privileges herein given, or the failure of Licensee to observe the covenants of this license; excepting, however, any claims or actions arising out of the sole negligence or willful acts of Licensor occupancy of the herein-described premises and at Licensee's sole cost and expense, to procure and In addition to and not in limitation of the foregoing, Licensee covenants and agrees, prior to the the following amounts: Bodily-injury liability in the amount of $1,000,000 per person and $2,000,000 per maintain in force at all times during the term of this license, in Licensofs name, a public liability policy in due to or arising out of the use of the herein-described premises pursuant to this license. Licensee shall occurrence: property-damage liability in the amount of $100,000 per occurrence for damage to property. further provide Licensor with a certificate or other evidence of such insurance which provides that such insurance shall be modifiable or cancelable only on written notice delivered by registered mail to Licensor not less than 10 days in advance of the modification or cancellation. Said policy shall be issued by a good and responsible insurance company and in a form acceptable to Licensor, 12. Licensee covenants and agrees that no alcoholic liquors or beverages are to be permitted to be used or consumed on the herein-described premises. 13. Licensee hereby agrees, at its sole cost and expense, to protect Licensor's facilities and equipment .which are directly related to normal nonmotorized trail uses, and to install such barricades, guard rails, fencing andlor safety devices or protection as Licensor may require from time to time, all to the satisfaction of Licensor and Licensee. The Licensee agrees to maintain same in good condition and appearance at all times. The Licensor hereby agrees, at its sole cost and expense, to erect and maintain any barricades, guard rails, fencing, andlor safety devices for protection as they relate to the protection of the Licensots electric transmission and power generating structures and related construction and operational procedures. Licensee will submit to Licensor any and all plans and specifications for the on the herein-described premises and such installations shall not be made without the consent and prior installation of barricades, guard rails, fencing andlor safety devices or protection which may be installed written approval of Licensor. No fencing, barricades or other improvements shall be installed or erected for any purpose which will obstruct. interfere with or impede the free access of Licensor to its lands or facilities. Licensee rather than constructing the imRrovements that may be required by the Licensor under this paragraph, may terminate this agreement upon written notice to Licensor, if so requested in writing by Licensor, to remove promptly, at its sole cost and expense, all or any part of 14. Licensee hereby agrees, upon the termination of this license by forfeiture, lapse of time or otherwise, the installations not including trail surfaces and drainage structures. herein referred to as may be required by Licensor from the herein-described premises and to restore the licensed premises to the condition existing prior to use by Licensee. In the event Licensee cannot, is unable or unwilling to remove said improvements or related facilities as directed by Licensor and to restore the licensed premises, Licensee hereby authorizes Licensor so to do, and Licensee hereby agrees to reimburse Licensor for any and all expense incurred in connection therewith upon presentation of a bill therefore, and Licensee hereby agrees to.save harmless and indemnify Licensor from all liability of any kind whatsoever that Licensor mav have incurred bv such removal. 0 -3- F:WEIWWORMSlBlKE1.LA- 1W1,93 June 18, 1996 15. Licensor may, at any time, require the Licensee lo vacate all or part of the right of way during the construction, installation, erection, operation, maintenance or replacement andlor removal of Licensofs facilities. Upon completion of such work, the Licensee shall then be permitted to occupy the right of way the right of way makes it impractical to resume the use of the premises, and if it elects not to do so, then for the purposes herein stated. Licensee reserves the right to determine if such vacation of all or part of said license shall terminate. 16. Licensee shall vacate the right of way upon notification by Licensor that weather conditions exist or may develop which could cause icing on trees and wires. 17 Licensor shall be permitted to plow the snow on the herein licensed premises in the event it desires to do so. 18. Licensee hereby agrees to.reimburse Licensor promptly for any and all of the real estate taxes and described premises during the term of this license for any and all improvements made by Licensee on assessments or any other local, State or Federal taxes that may be assessed or levied on the herein- the herein-described premises or for any increase in taxes resulting from the use of said premises by reason of the exercise of the rights herein contained, within 30 days after presentation to Licensee of Licensots statement. It is understood that all improvements made or fixtures installed by Licensee shall constitute the sole and separate property of Licensee and shall be considered leasehold improvements. provisions, or if any governmental agency having jurisdiction shall serve any demand, order or notice, 19. In the event there is any breach or violation of this agreement or any of its terms, conditions or including violations relating lo zoning or municipal ordinances, upon Licensor or Licensee, the Licensee shall, at its sole cost and expense, correct said breach or violation or comply with said demand, order or comply with said demand, order or notice within 30 days, it shall be lawful for Licensor, without liability lo notice within 30 days. In the further event that Licensee does not correct said breach or violation or terminated and to re-enter the licensed premises either with or without process of law and io expel, Licensee, at any time thereafter at its election, without notice or demand, to declare said license force as may be necessary so to do and to repossess and enjoy the herein-described premises again as remove and put out Licensee or any person or persons occupying the licensed premises, using such before this grant of license without prejudice to any remedies which might otherwise be used for the preceding breach of covenants; Licensee hereby expressly waiving all right to any notice or demand under any statute relating to forcible entry and detainer. The decision of Licensor shall be final and binding upon Licensee concerning any breach or default in the covenants and agreements contained in this license. Licensee shall be liable to Licensor for any and all costs incurred, including reasonable attorneys' fees owing to or arising out of any action taken pursuant to this provision in which Licensor prevails. 20. Owing to the presence of Licensoh electrical facilities located on the licensed premises, Licensee hereby agrees that no vehicles or equipment will be used, operated or permitted on the herein-described premises having a height in excess of 12 feet above original ground grade level. No vehicles, trucks, written approval of Licensor, Furthermore, the Licensee agrees that no motorized recreational vehicles. cars or equipment are lo be parked or materials stored on said premises.at any time without specific terrain vehicles will be used, operated or permitted on the licensed premises. The Licensee shall have including but not limited to snowmobiles, motor bikes, minibikes, motorcycles. mopeds, go-carts and all- the right to use motorized vehicles for patrol and maintenance of the right-of-way lands used for hiking, biking and cross country ski trails. The Licensee also agrees that no horses will be used or permitted On the herein-described premises. Licensee agrees that no kites. model airplanes or similar objects that may come in contact with or in close proximity to the facilities of Licensor will be used, operated or permitted on the licensed premises. Licensee, in complying with these conditions, agrees to post, maintain at all times. and if necessary, replace signs that expressly prohibit all such activities. 21, The rights of the Licensor to utilize the herein-described premises in its utility business will at all times be and remain paramount to the rights herein granted to Licensee and nothing stated herein is to -4- be construed as restricting Licensor from granting rights to other parties or persons in, upon or under the driveways, streets. sidewalks, sewers, water pipes and mains, drainage tiles and pipes, gas mains and licensed premises. Without limiting the generality of the foregoing, the parties specifically refer to pipelines, communication circuits and other allied uses. It is understood and agreed that this agreement is subject to all existing easements, grants and licenses. 22. This license shall not in any manner, or to any extent, limit or restrict the right of Licensor to use or dispose of the herein-described premises as Licensor in its discretion may desire, and particularly, but not in limitation of the foregoing, Licensor, at all times, shall have free and unrestricted access for its employees, agents, representatives. assigns or grantees to come upon the licensed premises by any means whatsoever for the purpose of constructing, installing, operating, maintaining. repairing, replacing or patrolling any or all of its facililies and equipment located thereon or any and all of its additional and future facilities and equipment which will be located thereon, or to be located on, in. over or under the herein-described premises. 23. All notices to Licensor shall be sent by certified mail, addressed to Wisconsin Electric Power Company, Property Management, 231 West Michigan Street, P.O. Box 2046, Milwaukee, Wisconsin 53201, or at such other place as Licensor may from time to time designate in writing. All notices to Licensee shall be sent by certified mail, addressed to Licensee at W182 58200 Racine Avenue, Muskego. Wisconsin 53150-0903, or at such other place as Licensee may from time to time designate in writing. 25. The covenants and agreements herein contained shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, except as otherwise provided in Paragraph 3 hereof. IN WITNESS WHEREOF, said WISCONSIN ELECTRIC POWER COMPANY has caused these presents to be signed by its Manager of Property Management this - day of said CITY OF MUSKEG0 has caused these presents to be signed by its Mayor and attested to by its City Clerk and its corporate seal to be hereunto affixed this day of 1996. , 1996, and Presence Of: WISCONSIN ELECTRIC POWER COMPANY BY LICENSOR CITY OF MUSKEG0 BY ATTEST BY LICENSEE - 5- F WRE\WFUORMSWKEl.LA lWlm June 18, 1996 0 STATE OF WISCONSIN) MILWAUKEE COUNTYJ ss Personally came before me this- Management, of the above-named corporation, WISCONSIN ELECTRIC POWER COMPANY, known to day of , 1996, Michael James, Manager of Properly me to be the person who executed the foregoing instrument as the deed of said corporation by its authority. Notary Public, State of Wisconsin My commission expires STATE OF WISCONSIN) MILWAUKEE COUNTY) Personally came before me this - day of , 1996. ss , of the above named municipal body corporate, CITY OF MUSKEGO, known and to me to be the Dersons who executed the foreaoina instrument and to me known to be such 0 thev execuled the foreaoim instrument as such officers, as the deed of said corporate body by its and of said municipal body corporate and acknowledged that authority and pursuanlio R&olution File No. - adopted by its Common Council on .. 1996. Notary Public, State of Wisconsin My commission expires g:\bu-data\as\prope~\wp\rfw\mskgol.doc File No. 960140 This document was drafted by Russell F. Wiegan on behalf of Wisconsin Electric Power Company, P. 0. Box 2046. Milwaukee, Wisconsin 53201 0 -6- Former St. Martins-East Troy R/U ot keyed on\local tax roll. I Trans. Line Land Burlinston R/U) 1 Key NO: 2294.993 I EXHHIBiT. "A'' ORIGINAL SHEET DATED: 6/25/92 REVISIONS: REAL ESTATE DEPT. REDDI-REFERENCE INDEX YAUKESHA COUNTY CITY OF MUSKEG0 R. 20 E. ClAP NUMBER MILW METRO SOUTH REGION T. 5 N.