01 35 13 Phase 1 Covenant Language.pdf

Document Number I CRF.ATI(If AND GRARr

OF mvBNANTS

3 LfD-IDif- 3CO} .37L./-JDI-300 I /Ill~ Ill~ 11~111111111 J/~II~J/1111~ Ill/ * 1 0 0 4 6 6 5 0 *

DOC.# 10046650

RECORDED 10/26/2011 03:26PM

JOON LA FAVE

Return to:

REGISTER OF DEEDS

Milwaukee County, Nil

AMOUNT: 30.00

FEE EXEMPT I :

Milwaukee Metropolitan Sewerage Dfstrld Attn: Dennis M. Stefanik, Real Estate Dept 260 West Seeboth Street Milwaukee, Wisconsin, 53204-1446

P•rcelldentlftcatlon NumbltriTu 1<-r Number

Part ofT ax Key Numbers 374-99Q9.06, 374-9999-10, 341-9996-02, 340-9996

CREATION AND GRANT OF COVENANTS

This GRANT OF THESE COVENANTS is made by Milwaukee Metropolitan Sewerage District, residing at 260 West Seeboth Street, Milwaukee, WI_53204 (hereinafter referred to collectively as the "Covenantor") to the St. Paul District of the United States Army Corps of Engineers, (hereinafter referred to as "Government").

WITNESS THAT:

WHEREAS, the Covenantor is the owner in fee of certain real property located in the County of Milwaukee, in the State of Wisconsin, described more particularly as follows, and referred to herein as the "Conservancy Area":

SEE A TI ACHED EXHIBITS A, B & C (Legal Description, Plat and Overview)

WHEREAS, the Covenantor desires and intends that the natural elements and the ecological and aesthetic values of the Conservancy Area be maintained and improved in accordance with the terms and conditions of these Covenants; and

WHEREAS, the Covenantor and Government both desire, intend and have the common purpose of conserving and preserving in perpetuity the Conservancy Area in a relatively natural condition by placing restrictions on the use of the Conservancy Area and by assigning from the Covenantor to the Government, by the establishment of these Covenants, affirmative rights to ensure the preservation of the natural elements and values of the Conservancy Area; and

WHEREAS, the Covenantor received a Department of the Anny permit number 2006-10-RMG for the making of these Covenants.

NOW THEREFORE, the Covenantor, for valuable consideration received, does hereby establish, give and assign to the Government an assignable right to enforce the following restrictions against the Covenantor, its successors and assigns if any; any third party holding, or professing to hold, any legal or equitable title to the Conservancy Area; or any trespasser or interloper committing any act on or near the premises inconsistent with these covenants:

a. The right of the Government to enforce by proceedings at law or in equity the Covenants hereinafter set forth. The right shall include but not be limited to, the right to bring an action in any court of competent jurisaiction to enforce the terms of these Covenants, to require the restoration of this property to its natural condition or to enjoin non-compliance by appropriate injunctive relief. The Government does not waive or forfeit the right to take action as may be necessary to ensure compliance with terms of these Covenants by any prior failure to act. Nothing herein shall be construed to entitle the Government to institute any enforcement action against the Covenantor for any changes to the Conservancy Area due to causes beyond the Covenantor's control and without the Covenantor's fault or negligence (such as changes caused by fire, flood, storm, civil or military authorities undertaking emergency action or unauthorized wrongful acts of third parties).

b. The right of the Government, its contractors, agents and invitees, to enter the Conservancy Area, in a reasonable manner and at reasonable times, for the purpose of inspecting the Conservancy Area to determine compliance with these Covenants.

AND IN FURTHERANCE of the foregoing affinnative rights, the Covenantor makes the following covenants on behalf of itself and its heirs, successors and assigns, which covenants shall run with and bind the Conservancy Area in perpetuity:

COVENANTS

a. USES. There shall be no commercial, industrial or residential activity undertaken or allowed within the Conservancy Area.

b. BUILDINGS AND STRUCTURES. There shall be no buildings, dwellings, barns, roads, advertising signs, billboards or other structures built or placed in the Conservancy Area.

c. TOPOGRAPHY. There shall be no dredging, filling, excavating, mining, drilling or removal of any topsoil, sand, gravel, rock, minerals or other materials. There shall be no plowing or any other activity that would alter the topography of the Conservancy Area.

d. DUMPING/DISPOSAL. There shall be no dumping of any waste, trash, ashes, garbage or other material that is unsightly, offensive or incompatible with the natural character of the Conservancy Area.

e. WATER. The hydrology of the Conservancy Area will not be altered in any way or by any means including pumping, draining, diking, impounding or diverting surface or ground water into or out of the Conservancy Area

f. AGRICULTURAL USES. No plowing, tilling, cultivating, planting, timbering, or other agricultural activities may take place within the Conservancy Area. The release or pasturing of livestock or other domestic or non-native animals, including the release or feeding of domestic and/or feral cats, shall not be allowed within the Conservancy Area.

g. The Covenantor is responsible for compliance with all federal, state and local laws governing the safety and maintenance of the property, including the control of noxious weeds within the Conservancy Area.

rspecht Highlight

h. There shall be no operation of any motorized watercraft, vehicle, or equipment within the Conservancy Area, with the exception of motorized vehicles required to perfonn the activities authorized the paragraph ''NOTWITHSTANDING", below.

i. VEGETATION. Except in conjunction with the authorized uses set forth in paragraph g. above, there shall be no removal, cutting, mowing or alteration of any vegetation or change in the natural habitat in any manner.

NOTWITHSTANDING the foregoing restrictions, the Covenantor may construct and maintain any project features or mitigation features in accordance with the Milwaukee County Grounds Floodwater Management Facility, Site Plan for Underwood Creek Wetland Mitigation Project, and any modifications thereto approved in writing by the Government. In addition. the Covenantor may undertake the following activities within the Conservancy Area without prior consent of the Corps:

I. Inspect and maintain outfalls along the creek, including removing obstructions and ensuring structural integrity of outfalls.

2. Remove woody vegetation as specified in the Wisconsin DNR Butler's Gartersnake Conservation Plan/Strategy.

3. Obtain water and soil samples from the creek and creek bank.

4. Inspect the channel, channel banks, and floodplain area and make any needed repairs to maintain bank stability.

5. Remove woody growth, vegetation, and sediment deposits only as necessary to maintain original conditions indicated and approved in the mitigation plan referenced above.

6. Inspect and maintain the gauging station.

7. Manage invasive plants:

RESERVED RIGHTS

These covenants do not convey any ownership interest in the Conservancy Area to the Government nor require the Covenantor to allow the general public to enter upon or use the Conservancy Area.

The Covenantor and Covenantor's invitees may hunt, trap, and fish in the Conservancy Area so long as they comply with the terms and conditions of these Covenants and all federal, state and local game and fishery regulations.

rspecht Highlight

Nothing herein shall be construed as limiting the right of the Covenantor to lease, sell, give or otherwise convey the Conservancy Area, or any portion or portions thereof, provided that the conveyance is subject to the terms of these Covenants.

GENERAL PROVISIONS

These Covenants shall run with and burden the Conservancy Area in perpetuity and shall bind the Covenantor and Coveruintor's heirs, successors and assigns. These Covenants are fully valid and enforceable by any assignee of the Government, whether assigned in whole or in part.

Said assignment may be by operation of law or by written notice of assignment to the Covenantor.

The Covenantor warrants that it owns the Conservancy Area in fee simple, and that Covenantor either owns all property interests in the Conservancy Area which may be impaired by the granting of these Covenants or that there are no outstanding mortgages, tax liens, encumbrances, or other interests in the Conservancy Area which have not been expressly subordinated to these Covenants by signing below. If it is determined at any time that there is any party who may have a property interest in the Conservancy Area that is superior to these Covenants, then the Covenantor shall immediately obtain and record a consent and subordination agreement signed by the other party. Acceptance of these Covenants does not release the Covenantor from the obligation to obtain and record a consent and subordination agreement signed by any party who may have a property interest in the Conservancy Area that is superior to these Covenants, even if such interest was of record at time of acceptance.

The Covenantor agrees to pay any and all real property taxes and assessments levied by competent authority on the Conservancy Area.

The Covenantor agrees that the terms, conditions, covenants and restrictions set forth in this instrument will be inserted in any subsequent conveyance of any interest in said property.

The Covenantor agrees to notifY the Government of any such conveyance in writing and by certified mail at least 60 days prior to the conveyance.

The Covenantor agrees to notifY the Government at least 60 days prior to the establishment of any other legal claims over the Mitigation Site. The Government may prohibit the establishment of legal claims that are incompatible with the purposes and covenants stated herein.

As the Covenantor received a Department of the Army permit or other valuable consideration for the making of these Covenants, these Covenants may only be modified or amended by a properly recorded written instrument executed by the Covenantor, with the written consent of the St. Paul District, U.S. Army Cotps of Engineers, or other Federal agency authorized by law to enforce Section 404 of the Clean Water Act.

The terms "Covenantor" and "Government" as used herein shall be deemed to include, respectively, the Covenantor and its heirs, successors, personal representatives, executors and assigns, and the United States Government, acting by and through the U.S. Army Corps of Engineers or other Federal agency authorized by law to enforce Section 404 of the Clean Water Act.

TO HAVE AND TO HOLD the above described together with all the appurtenances, rights and privileges belonging thereto, either in law or equity, for the proper use and benefit of the Government and its successors and assigns, forever.

EXECUTIONS AND ACKNOWLEDGMENTS

IN WITNESS THEREOF, the Covenantor has hereto set its hand and seal this 11 ~day of

October, 2011. ~ m 0 ~E~Uecror

Milwaukee Metropolitan Sewerage District

IF THERE ARE ADDITIONAL HOLDERS OF INTERESTS IN THE REAL PROPERTY,

ATIACH ADDITIONAL SIGNATURE PAGES FOR THEIR CONSENT AND

SUBORDINATION

This instrument was drafted by:

Joseph T. Ganzer, MMSD Staff Attorney using a form developed by the St Paul District, U.S. Army Corps of Engineers

EXHIBIT A

Grantor: Milwaukee County Grantee: Milwaukee Metropolitan Seweraac District Part ofTax Key Numbers: 374-9999-06, 374-9999-10, 340-9996-02 and 340-9996

Lepl Daeriptioa

Plrt of the Southwest 1/4 of the Nonhwest 1/4 and tho Northwest 114 and Soudtwesll/4 of the Southwest 1/4 ofScction 20, in Township 7 North, Ranae 21 East, in die City ofWauwatou, Milwaukee CoUDty, Sllte ofWisc:oasin., beiiJI more tuDy described IS follows:

CommeaciDa at the Soulbwest comer oftbe Soudawcst 1/4 of said Section 20, thence N 02"10'30'' W .mn. tbe west line oftbe SW 114 of said Section20, 977.70 feet; thence N 17"49'30" E. 90.00 C. to the eut lino ofNortb May&ir Rold (STII-100) IDd the Point of Beainnfna oflbe berein described lands; 1boace N 02"10'30"W aJonaaid ast line, 917.59 feet to a poiDt on the east 1iDe oftbe C..tbm Pacific Rallway; 1henc:e S Br21'19" E aJoq said eat liDc, 26.97 feet, tbencc N 07°31 '41" E along said east line, Sl1 .19 feet to a point of curve to the ri&ht, havina a radius of3663.92 feet; thence nordHiucerly along Aid curve and cut line. an arc lqth of 12.62 feet, with a chord barinl N 0?037'3~' E, 12.62 feet; thence N 12" 16'21" W aJona said east line, 24.00 feet to a point on a non-1anpnt curve to the risftt, havina a rldius of

3617.92 bt; thcnco nortbu~Cerly a1oog sllid curve ucl Cllt Hnc. an arc lqth of273.29 feet, with a chord bcuina N 09"50'S4" E. 273.23 feet to a point of compound curve to the riaht.

J.vina a rldius o£2224.20 ftlet; lbenc:o DOI'theasterly Ilona uld curve and east line, ID uc 1eDatb of19.96 feet, with a chord be1rinJ N 1,2013'43" E, 19.96 feet; thence S 77"30'52" E aJona said eat line, 24.00 feet to a point on a non-1111pnt c:UMI to lho rfpt, bavina a radius of 2200.20 feet;

lhonc:e nordaeasterly aloaa said curve ud east line, an lrC lcnglb of 427.16 feet, widl a claord beariq N I J003 '24" E, 427.18 feet, to a point on a non-tanpnt curve to the right, havina a ...Uus ofl53.SO feet; tbcnco l•vina the afOreAJd east line ofthc Cantdian Plcific Railway, run southeatcrly alona said curve, an arc Jenatb of 179.99 feet, with a chord belriua S 21°53'16" E,

169.86 feet to a polntoftu~~oncy; thence S 11°42'17" W, 539.56 feet; tbenc:c N 61°57'43" E,

126.60 feet; tbcoce S 12"05'23" W, 3S7.84 feet; thc:nc:e S 01 "39'19" E. 14S.07 feet; thence S 14°11 '24" W, 176.12 fact to a point on •~tanaentc:urve to tbe ri&ht havina a radius of71S.OO bt;lhence southerly alona said curve, 111 arc Jena1h of516.5S -with a cborcl bclrina S 05"35'10" E. 505.39 feet to a point ofmnaency; thence s 15"06'31" W, 152.03 &et; 1hence s 14°35'14" E, 154.01 feet; ~eace S 14~'53" W,40.02 feet to a point on a non-tupnt curve 10 the left, havina a radius of 120.00 feet; 1heoco soulhweslerly along said curve, an arc lenath of

150.48 feet, with a c:bord belrina S W'21'2S" W, 140.11 feet to apoiatoftarJaency; 1bcnco S 32"32'56" W, 51.14 felt to a poiatofcurve to the risbt, havinaarldius ofl7.00 teet; tbencc southwcs1erly alons said curve, an uc lenath ofl3.93 feet, with a chord bearina S 6()011'13" W,

10.72 feet to a point of11118CD~; thence S 87°49'30" W,1.67 feet 1o a point on the aforesaid cast line ofNortb Mayfair Road mxl tbe Point ofBoainnins· Said pucel conllias 472,351 sqUIU'e feet or 10.144 acres.

Said piiCOI is tJansfi:rrecl by Grantor and ICCCpced by 0raDtee "As Is Where Ia", Gtantec also acceptina responsibility for any required repair, cl~~~nup, nsmediation or detoxification llrisina out of any bazlrdous IJlllleria1s fCHDd in Or Oil the parcel, and CJrwdee further aarocioJ to indemnify, defend and bold Graotor hlrmless from any UabWty, cost, danwp, claim, loas or iqiwy (includins reasonable anomey fees) nina ftom the praeDCe of any haDrdous llllllerills.

The above dascription is also identified IS Lot I ofCcr1ified Survey Map B I 5.3

EXHIBIT "8"

IJIIILA TTED LANDS

NOTES:

1'110'&11£0 FOil ULWAUIU COUNTY, A IUICPAL COIPCIIIA1111H.

llhMIIS AilE IIEFOIOICED TO 'ftiE lEST LIE t11 M SOUTHIUT V4 OF SECTION ZO•l•lti'I&ISIU 8Y S£1'111'C AS KMIIIG N 02"10'30" 1.

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