EPA Region 5 Records Ctr.

301487

"Clark, Douglas B." To<DCIark@foley.com> OA. . CDr. n ... .

^ ' Subject FW: LSRG Deed Notices08/02/2005 03:54 PM

Nola and Darryl,

Here are the deed notices that we put in place several years ago. As you can see, the language does notspecifically track the kind of language that is typically included, these days, in environmental deedrestrictions. On the other hand, the deed notices and restrictions that are in place, as well as the State ofWisconsin groundwater use restriction for the entire area, accomplishes the same purpose. In otherwords, no one can use groundwater in this area without first getting DNR permission and without firstverifying that a groundwater well drilled (inside the fenced Superfund site!) would not interfere with theongoing remediation.

Doug

Doug ClarkFoley & Lardner LLP608-258-4276 (office)608-438-6381 (mobile)

—Original Message

From: Clark, Douglas B.

Sent: Wednesday, November 17, 2004 10:51 AM

To: hicks.nola@epa.gov

Subject: LSRG Deed Notices

Hello Nola,

Here are copies of the in place deed notices for the two Lembergers sites. In addition to these notices,the State of Wisconsin has designated the entire area as a groundwater notice area, i.e. anyone drilling awell has to get special approval, etc. Also, as you know, both Lemberger sites are fenced and posted.

If it turns out that these notices, etc., need to be revised, updated or additional language inserted, pleaselet me know. Also, if you'd prefer faxed or hard copies, let me know.

Doug Clark

Doug ClarkFoley & Lardner LLP608-258-4276 (office)608-438-6381 (mobile)608-258-4258 (fax)

«LSRG Deed.pdf»

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herein. LSRG Deedpdf

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Document Number

HEM1*1*2000

DOUGLAS B. O.ARK. HI attorney at the law firmof Foley and Lardner and fegsl counsel to (he Lamberger Site*Remediation Group CLSRO"). hereby certifies that the followingstatements m true.

1. LSRO is i group of cornpaales, corporations,munidpalkies and odier parries (hat, at directed by be United StalesEnvironmental Protection AgencyCUSEPA*) and the WisconsinDepartment of Natnnl Remices (' WDNR*), are iccpoanble foritmedUtaf envaxxunenul eontandntdaa aaoclatel with, andalfeaediy orijto«tfn» at. lha Len*«rjer Landfill Superfund Site ind theLeraberger Trtncpon it. Recycling Site (the 'Sites.')

2. In order to feilhato tba •Tun-***1"" of Ac Sites.LSRO and USEPA have entered into ceitain Aoceai Atreemeots andEajoneot Agreements with (he ownen of ihe paroeb in the vicinity ofthe Sites. Then Access Agreements and Easement* permit LSRG,USEPA. and WDNR to eater (he properties to: InttaU. operate andmonitor die groundwaier and teachate enlueOoa and monhorinf wells;hi some cases, install, operan and monitor pipeline* and anociatact

equipment necessary to uaaaport gtouadwater aad Mated •IBnent;in some cues. Install, operate and monitor landfill caps, day and nil borrow sources; and a variety of otheractivities necessary to complete me USEPA and WDNR required remediation at, and morittnd with, the Sues.

3. The parcel described on Exhibit "A", attached hereto and incorporated herein, is abject to «nAccess Agreement in favor of LSRO, USEPA and WDNR. Any conveyance, transfer, lease or encumbranceaffecting such property will be subject to roca Access Agreements and/or Easement and the purpose of thisAffidavit is to give me public notice of soch Interest.

4. Additional information regarding tba enounbrances on these parcels may be obtained by contactingAttorney Donglas B. Clark ac

1413 « 119

Name and Return Addre**Attorney DoucUi B. Ctork (ENV]ISO EutGamM StreetP.O. Box 1497MadUoo, Wocooiin 53701-1497

Set Attached Exhibit A• Motor (MM)

R>toy A LardnerISO East GUman StreetP.O. Box 1497Madison, Wisconsin 53701-1497

nr Douglas B. dark

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STATE OF WISCONSIN )) SS

COUNTY OF DANE )

Personally came before me this 12* day of January. 2000, the above named Douglas B. Clark, tome known to be the person who executed the foregoing and acknowledged the same.

NotuyPuhocDane CountyStale of Wisconsin . 'My commission expires: /»/Z.<,/o 3

This Instrument was drafted by Douglas B. Clark, Foley & Lardner.

119OO3.204440.I

120

The But One-half (Bl/Z) of the Northeast Qutrta (NBJM)of *e Northeaa Quarter (NEW) of SectionNumbered Thirty-tar (34), Towmbip Nundmtd TwwJy (20) North, Rrage Numbered Twenty-two (22) East, inthe Tom of Franklin, Mnfiowoc County,

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•Illlllligililllll vi 1442 P WE 447

Document Number

860130AMENDED AND RESTATED

GLOBAL ACCESS ANDEASEMENT AGREEMENT

RECEIPT* 4898

$22 .W «SCSTHTF. Of «W»B1N

REBISTCR OTRCCCIUCD FOR RECORD

Alter reconUng. return to:Attorney Douglas B. ClarkFoley A. LardnerP.O. Box 1497Maditon. Wisconsin 33701-1497

See in«rhH Exhibit A

Parcel Identification

and Restated Global Access and Easement Agreement (the"Agreement") is dated this 23" day of June, 2000, and is between Kenneth J. Lemberger (the"Owner") and the Lemberger Sites Remediation Group ("LSRG"), whose members are theCity of Manitowoc, Manitowoc Company, Manitowoc Public Utilities, Newell Company, RedArrow Products Company, LLC, Invincible Metal Furniture Company, Inc., The GreatAtlantic & Pacific Tea Company, Inc.

WHEREAS, the Owner owns several contiguous and non-contiguous parcels ofproperty in Section 27 and Section 34, Township Number Twcnty(20) North, Range NumberTwenty-two (22) East, in the Town of Franklin, Manitowoc County, Wisconsin, moreparticularly described on the attached Exhibit A (collectively, the "Property").

The Property includes the Lemberger Landfill ("LL")1 and die LembergerTransport Recycling ("LTR")2 Superfund sites located near the Village of Whitdaw, which

1 The LL site it located hi the Northeast Quarter (NE1/4) of the Southeast Quarter (SB1/4) of SectionNumbered Twenty-seven (27). Township Numbered Twenty (20) North. Range Numbered Twenty-two (22) Eait,in (he Town of Franktin.

1 The LTR site is located to the East One-*atf (El/2) of the Northwest Quarter (NW1/4) of the NonheattQuartet (NE1/4) of Section Numbered Thirty-four (34), Township Numbered Twenty (20) North, RangeNumbered Twenty-two (22) Bast, in the Town of Franklin and the West One-half (Wl/2) of the Northeast Quarter(NE1/4) of Section Numbered Thirty-four (34), Township Numbered Twenty (20) North, Range NumberedTwenty-two (22) East, in the Town of Franklin.

003.235408.6

w. 1442 PAQE448

have been listed on the National Priority List under the Comprehensive EnvironmentalResponse. Compensation and Liability Act;

WHEREAS, the Owner and the LSRG previously executed a Global AccessAgreement dated May 31. 1995 (the "Prior Agreement"), which prior Agreement specified theconditions upon which the LSRO was granted unrestricted, continuous and permanent access tothe Property for itself, U.S. EPA, WDNR, and their contractors, consultants andrepresentatives;

WHEREAS, pursuant to the Prior Agreement the LSRO has been investigatingand remediating hazardous substance contamination at the LL and the LTR Sites (the"Remediation") under the direction of the United States Environmental Protection Agency("U.S. EPA") and the Wisconsin Department of Natural Resources ("WDNR"), pursuant toConsent Decree No. 92-C-OS83 (E.D. Wis. 1992) and Administrative Order by Consent No.V-W-93-C-196 (U.S. EPA Region V, 1993Xthe "AOC");

WHEREAS, the Prior Agreement required that the LSRG perform certainrestoration after the completion of the Remediation;

WHEREAS, the parties wish to amend and restate the Prior Agreement in itsentirety in order to clarify the obligations of the parties with respect to Restoration and to putthis Agreement hi a recordable form.

NOW, THEREFORE, in consideration of mutual promises contained in thisAgreement, me sufficiency of which is hereby expressly acknowledged, the Owner and theLSRG (hereinafter collectively the "Parties") hereby agree as follows:

1. Access. The Owner grants to the LSRO. U.S. EPA. WDNR. and theircontractors, consultants and representatives a perpetual easement and access to the Property forthe purpose of: (a) preparing for and conducting the Remediation, including but not limited tothe construction, operation and maintenance of a groundwater treatment system, a portion ofwhich may be located on the Property; (b) locating and excavating clay and other borrowmaterials from the Property,3 and (c) any other purpose deemed reasonably necessary by theLSRG. U.S. EPA and/or WDNR, pursuant to the Consent Decree and AOC. The LSRG shallattempt, but is not required, to give the Owner prior notice, written or otherwise, beforeentering onto the Property pursuant to this Agreement. The access and easement granted underthis Agreement shall be unrestricted, continuous and permanent, shall run with the land, andshall be binding upon and inure to the benefit of the Parties hereto and their heirs, personalrepresentatives, successors and assigns. The access and easement given by the Owner pursuantto this Agreement shall be for the sole purpose as described in subparagraph (a) and (b).Subparagraph (c) shall not be interpreted to expand the purposes for which access is given, butshall be interpreted to be consistent with subparagraphs (a) and (b) and the purpose for which

* Subparagraph (b) does not Include any com of purchasing clay and other borrow mw**1* from theOwner, but only includes the payment for access to the property.

003.233408.6 -2-

va 1442 p«£449

access u needed. In no event shall die Agreement be interpreted to provide the LSRG, or anyother party, any ownership rights to the Property, or the right to interfere with the Owner'suse of the Property, except to the extent Owner's use or access is regulated by law, or Owner'suse or access interferes with the LSRG's remediation activities on the Property. Owner agreesto refrain from activity on the Property that could negatively affect the LSRG's remediationefforts or exacerbate the soil or gronndwater contamination at or in the vicinity of the LL orLTR sites.

2. Wftrryijieg and Reppf«ept8t|Q"y The Owner represents and warrants that he hasgood and indefeasible fee simple tide to the Property, free and clear of all liens andencumbrances, except that the Owner owes to the County of Manitowoc back taxes on aportion of the Property. Subject to municipal and zoning ordinances and easements, the Ownerrepresents and warrants that he has the full power and authority to convey the rights grantedunder this Agreement. If die Owner's representations and warranties under this Section aredetermined after the effective date of this Agreement to be inaccurate, the LSRG may at itssole option: (a) declare this Agreement null and void, in which case the Owner shall promptlyreturn to the LSRG the full sum paid by die LSRG to the Owner pursuant to Section 3(Payment of Costs) of this Agreement; or (b) agree with the Owner that this Agreement shallremain effective only if the Owner immediately obtains from all third parties with title and/orrights to the Property a written agreement that such parties shall be bound by die terms of thisAgreement, without compensation by die LSRG.

3. Payment qf Costs. In consideration for the access and easement granted in *hfoAgreement, die LSRG paid the Owner die sum of Two Hundred Thirty Six Thousand Dollars($236,000), as required by the Prior Agreement. Other than as provided in Section 6 hereof.the LSRG shall not be responsible for or be required to reimburse die Owner for any othercosts, including without limitation die value of any crops, trees or vegetation on the Propertywhich are damaged or destroyed as a result of die access or easement granted under thisAgreement.

4. Improvements. The LSRG shall be responsible for and shall pay all costsincurred in connection with die 'FiTtallatK*!*. operation and maintenance of all structures andequipment placed on me Property in connection with die Remediation or any other activitiesspecified in Section 1 (Access) of this Agreement.

5. iqflemnjfiW"?" The LSRG shall indemnify and hold die Owner harmless fromand against any and all physical injuries to persons and damage to personal property caused bydie actions of the LSRG or their contractors, consultants, and representatives, on die Propertyarising out of or relating to the access granted under this Agreement, provided, however, thatthis indemnity shall not apply to any injuries, death, damages, claims, losses, demands,expenses or liabilities dial: (a) are caused by die Owner or any third party who is not an agent,employee or contractor (including subcontractors) of die LSRG; or (b) result from die presenceof hazardous substances on die Property, unless the damage or injury was caused by an act ofomission of die LSRG or its contractors, consultants and representatives.

003.235408.6

VOL 1442 PWE450

6. Restoration/Release. Pursuant to the Prior Agreement the LSRG had agreed toperform restoration of tkc Property upon completion of the Remediation. In full satisfaction ofthose restoration obligations under the Prior Agreement. LSRG. concurrently with theexecution of this Agreement, is paying to Owner the sum of $75,000 (the "RestorationPayment"). The parties agree that the Restoration Payment will fulfill any and all restorationobligations of the LSRG relating to the Remediation conducted to date on any of the Property,and the parties also agree that the Restoration Payment shall fulfill any and all restorationobligations of the LSRG relating to any remediation to be conducted in the future on thefollowing parcels: (i) LL, including the adjacent property within the existing fence; (il) theLTR, including the adjacent property within the existing fence; and (iii) the Southwest V4 ofthe Southeast tt of Section 27 (collectively, the "Released Properties''). The Owner herebyacknowledges that the Restoration Payment is being paid in fulfillment of the LSRG'srestoration obligations with respect to (be Released Properties and hereby releases LSRG fromany present or furore obligations to restore the Released Properties during or upon completionof the Remediation.

7. Continqif^g Qh^ga.t'QP tff Restore. Notwithstanding the terms of Section 6, theLSRG agrees to restore the areas of the Property, other than the Released Property, wherework will be performed subsequent to the date of this Agreement, to its original grade andappearance, to the extent practicable. However, at the conclusion of the Remediation, theLSRG may, at its sole option, leave on the Property, including the Released Property, anyunderground pipeline installed on the Property.

8. Taxes. The Owner shall be responsible for the timely payment of all real estatetaxes, both general and special, levied against the property.

9. Cooperation. The Parties shall cooperate in good faith during the pendency ofthis Agreement. Except as otherwise specified in this Agreement, the LSRG shall use theProperty in a manner so as not to unreasonably interfere with the Owner's rights of reasonableuse of the Property. The Owner shall fully cooperate with the LSRG's efforts to remediate theLL and LTR sites and shall assist with the LSRG's efforts to obtain access from other propertyowners near the LL and the LTR sites.

10. Attorney's Fees. Either Party may enforce this Agreement by appropriateaction, and should it prevail hi such litigation, it shall recover, as part of its costs, reasonableattorneys' fees.

11. No Waiver of Rights. Nothing in this Agreement shall be construed to waiveany rights, claims or privileges which the LSRG may have against any person or entity, andthe LSRG expressly reserves all rights of action, claims, and demands against any and allpersons and entities under all state and federal statutes and regulations.

12. Compliance with Applicable Laws. The LSRG shall comply with all applicablefederal, state or local laws ordinances, rules, orders, or regulations in conducting work on theProperty pursuant to this Agreement.

003.236408.8

VOL 1442 PAQE451

13. Notice. Notices relating to this Agreement shall be sent to die following:

Douglas B. ClarkFoley & LardnerP.O. Box 1497150 E. Oilman StreetMadison, WI 53701-1497(414)297-5826 (Milwaukee)(608)258-4276 (Madison)

Kenneth Lemberger10007 Rief Mills RoadCato.WI 54206(414)732-4324

14. AnMTUdnHIlt Uti TffrnUM^Ml This Agreement may be amended only by diewritten agreement of both Parties. This Agreement shall remain in effect until the LSRGprovides written notice to the Owner mat the activities described herein are concluded, or uponthe written agreement of both Parties.

15. Binding Effect. This Agreement, including the benefits and burdens, shall runwith the Property and is binding upon and shall inure to the benefit of the Parties hereto andtheir heirs, personal representatives, successors, and assigns.

16. No Adrnjffipn gf Liability. This Agreement is not an admission of liability onthe part of LSRG and/or the Owner.

17. Fnrire A.yfeMnent. This Agreement reflects the entire agreement between theLSRG and the Owner with respect to the matters contained herein, and no statements,promises, or inducements, including without limitation, the contents of the Prior Agreement,that are not contained herein shall be valid or binding.

18. Severability. If any provision of this Agreement is deemed invalid orunenforceable, the balance of this Agreement shall remain in full force and effect.

19. Governing Law. This Agreement shall be interpreted under the laws of theSlate of Wisconsin.

20. Advice of COUIVK1 The Owner has read this Agreement, has had opportunity toconsult with legal counsel, and represents that he knows and understands the content andmeaning of the Agreement.

21 . Headings. The Section headings contained herein are for convenience only andshall not be deemed to limit, construe, affect or alter the meaning of such Sections.

003.23S4O8.6

•IllllffllPi WL 1442 PME452

IN WITNESS WHEREOF, the Parties hereto, which may be represented by andthrough their appointed counsel, enter into this Agreement, Each person signing thisAgreement represents aid warrants that he or she has the full power and authority to enter intothis Agreement.

i J. Lemberger. Owner Date

Douglas *.rClarr Folcy & LardnerAttorney for the Lemberger Sites

Remediation Group

Date

STATE OF WISCONSIN )) ss.

COUNTY OF DANE )

Personally came before me this 23rd day of June, 2000, the above-namedKenneth J. Lemberger, to me known to be the person who executed the foregoing instrumentand acknowledge that he executed the same. ~

onica J. BbhmanNotary Public, Dane County, WisconsinMy commission expires October 26, 2003

STATE OF WISCONSIN )} ss.

COUNTY OF DANE )

Personally came before me this 23rd day of June, 2000, the above-namedDouglas B. Clark, to me known to be the person who executed the foregoing instrument andacknowledge that be executed the same. /"-v ^ - ^

Monica J^BohmanNotary Public, Dane County, WisconsinMy commission expires October 26, 2003

DRAFTED BY:

ATTORNEY DOUGLAS B. CLARKFOLEY & LARDNERFOB 1497HADISON, WI 53701-1497

003.236*06.6

va 1442

EXHIBIT A

Parcel 1:

The Noitbew Quarter (NE1/4) of the Soomeatt Quarter (SB1/4) of Section Numbered Twenty-«even (27)Towaihip Numbered Twenty (20) North. Rn|e Numbered Twenty-two (22) But, in the Town of Franklin,Manitowoc County, Wucoum.

Puce! No.: 5-027-012-00.00

Piroel2:

The But One-half (Bl/2) of me Northweit Quarter (NW1/4) of the Norfheut Quvter (NE1/4) ofSectionNumbered Thhly-fonr (34), Townihip Numbend Twenty (20) North, Range Numbered Twenty-two (22)But, in me Town of Franklin, Mwitowoc County, WUconun nd me Northewt Qnuter (NEt/4) of theNormetit Quvter (NE1/4) of Section Numbered Thirty-few (34), Towmship Numbered Twenty (20)North, Range Numbered Tweaty-two (22) EM!, hi the Town of Franklin, Manitowoc County. Wisoonm.

Pwel No.: 5-034-002-001.005-O34-001-000.00

Pircel 3:

The Southwett % of me SoutheMl % of Section Number 27, Towiahip Number 20 Norm, Range Number22 East of die Fourth Principal Meridian, located in the Town of Franklin, County of Manitowoc, State ofWisconsin.

Parcel No.: 5-027-015-001.005-027-015-002.00