Document Number

 

 

                                    Document Title

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 Recording Area                                             

 Return: Department of Natural Resources

               Bureau of Facilities & Land - LF/6

               P.O. Box 7921

               Madison, WI 53707-7921

               Attn: Sharene Smith (LU-                              )

                                                                          

 Parcel Identification Number (PIN):

               016-00800-0000

 

1

 


State of Wisconsin

Department of Natural Resources

P.O. Box 7921

Madison, WI  53707

MEMORANDUM OF UNDERSTANDING AND AGREEMENT

 

Section 23.09(2), Wis. Stats.

Form 2200-118

 

 

THIS MEMORANDUM OF UNDERSTANDING AND AGREEMENT (hereinafter referred to as “MOUA”), made by and between the State of Wisconsin Department of Natural Resources (hereinafter referred to as “DNR”) and Lake Puckaway Protection and Rehabilitation District (hereinafter referred to as “LPPRD”).

 

RECITALS

 

WHEREAS, the Princeton Dam and Lock (hereinafter referred to as the “Dam”) is located approximately eight miles downstream from Lake Puckaway, and about 1 mile upstream from the City of Princeton and was originally constructed in 1897 by the US Army Corps of Engineers (hereinafter referred to as the “USACE”) as part of a series of river transportation improvements on the Fox River to ultimately allow steamboat access from Lake Butte des Morts to the Portage canal connecting the Fox and Wisconsin Rivers;

 

WHEREAS, the Dam is approximately 8 feet high and 180 feet long and is constructed of timber rock-filled cribs, covered with wood planking and a concrete cap, which uses about 12 inches of wooden flashboards placed along the concrete crest of the Dam behind metal pins to raise the water for navigation;

 

WHEREAS, during the 1950s, USACE realized river navigation would never economically compete with the railroad so they abandoned the lock canals and various dams and transferred ownership of the Dam to DNR in 1961;

 

WHEREAS, in the early 1970s the DNR began placing an additional 6 inches of boards on the Dam to raise the water levels further, but for the most part has maintained the same operational regimen that USACE used to control water levels by the placing of flashboards on the Dam in spring and removal of the flashboards in fall;

 

WHEREAS, in order to install and remove these flashboards the Dam operator must walk out in the water on the concrete spillway and place metal pins in pre-drilled holes along the crest, which consist of 3 layers of wooden 2 inch by 6 inch flashboards set on the upstream side of the pins to hold the water flow in place;

 

WHEREAS, from the 1960s until 2000 DNR was responsible for the Dam’s operation, but since 2000 DNR has authorized others to install and remove the flashboards on the Dam, and for the last 5 years LPPRD has acted as the Dam operator under an agreement with the DNR;

 

WHEREAS, the DNR and LPPRD are both interested in working cooperatively to preserve and improve the ecology of Lake Puckaway in a manner that balances the recreational desires of humans with the ecological needs of the lake;

 

WHEREAS, because of safety, fish passage, and habitat restoration concerns, the DNR has decided to reconstruct the Dam with said construction to be completed as soon as funding is secured and available, but until such time as the Dam is reconstructed the DNR and LPPRD wish to renew their agreement regarding operating and maintaining the flashboards;

 

WHEREAS, this MOUA is made for the purpose of allowing LPPRD to enter upon and conduct work on the DNR’s following described property in Green Lake County, Wisconsin:

 

Township 16 North, Range 11 East, Princeton Township

Section 35:   The Princeton Dam and Lock Gates as located in the SW¼ of the NE¼ and the SE¼ of the NW¼, including access to the Princeton Dam crest and Lock Channel gates;

 

WHEREAS, the purpose of this MOUA is to set forth the understanding which has been reached between DNR and LPPRD regarding the placement, removal, and repair of the pins and flashboards on the Dam;

 

WHEREAS, this agreement shall be in effect for a 5 year period commencing the 1st day of December, 2015, and ending the 30th day of November, 2020 and may be extended through mutual agreement by the DNR and LPPRD; 

 

NOW, THEREFORE for mutual benefits the DNR and LPPRD enter into this MOUA regarding the placement, removal, and repair of the pins and water control flashboards on the Princeton Dam.

 

It is understood by the DNR and LPPRD that this MOUA is subject to the following conditions:

 

1.               The parties hereto confirm and agree that the recitals set forth above are true and correct and incorporate the same herein for all purposes.

 

2.               LPPRD may terminate this MOUA by written notice to the DNR with no less than 30 days’ notice.

 

3.               DNR may terminate this MOUA if the LPPRD breaches any terms or conditions and said breach continues for a period longer than 15 days from receipt of the DNR’s written notification of said breach by the LPPRD, unless otherwise mutually agreed upon.

 

4.               This MOUA is subject to all applicable laws and regulations.  The DNR will issue any necessary permits to the LPPRD for said placement, removal, or repair of the pins and flashboards on the Dam if required under Wis. Stats., Ch. 31.

 

5.               The DNR will continue general property maintenance, management and operation obligations relating to the Dam, except those outlined in paragraphs 9 – 15 contained herein.  The DNR will have sole discretion as to the extent of any such maintenance and associated costs.

 

6.               The MOUA shall not be construed as creating a public debt on the part of the DNR in contravention of Article VIII, Wisconsin Constitution and all payments or obligations hereunder are subject to the availability of future appropriations.

 

7.               Each party shall be responsible for the consequences of its own acts, errors, or omissions and those of its employees, board, commissions, agencies, officers and representatives and shall be responsible for any losses, claims, and liabilities which are attributable to such acts, errors, or omissions including providing its own defense.  In situations including joint liability, each party shall be responsible for the consequences of its own acts, errors, or omissions and those of its employees, agents, boards, commissions, agencies, officers and representatives.  It is not the intent of the parties to impose liability beyond that imposed by the state statutes.  Each party reserves and maintains all the rights to assert any and all affirmative defense afforded a public entity under Wis. Stat., 893.80 or other Wis. Stats., available for defense.

 

8.               The LPPRD has the authority to conduct operation of the Dam’s lock gates to facilitate placement, removal, and repair of the flashboards and pins.  The LPPRD has the authority to have a contractor perform the placement, removal, maintenance, and repair of the flashboards and pins throughout the year, if they so choose.    

A.              In the event LPRRD elects to hire a contractor to perform said work, said contractor shall provide the same insurance coverage as required in paragraph 16 and name DNR and LPPRD as an additional insureds.  In the event that LPRRD hires a contractor to perform said work in lieu of performing those activities itself, then LPRRD does not need separate insurance coverage as required in paragraph 17. 

B.              LPPRD, or its contractor, shall comply with all required federal and state occupational safety and health act laws and standards in performing the work authorized under this MOUA.

C.              Costs associated with contracting for services and purchase of the pins and flashboards will be the responsibility of the LPPRD.

 

9.               No more than 3 rows of nominal dimensional 2x6 inch lumber planks will be placed on the crest of the Dam.  Flashboards will be placed no earlier than May 15th of each year and removed from the Dam no later than October 31st of each year.  Changes to theses dates require mutual agreement by DNR and LPPRD.

 

10.            When a mutually agreeable water level management plan is adopted as part of the Lake Puckaway Management Plan during the time specified in the MOUA, flashboard placement or operation of any other water control device shall thereafter be in accordance with the plan.

 

11.            The LPPRD will be responsible for addressing public relations activities associated with placement, removal, or repair of pins and flashboards on the Dam including newspapers, newsletters, kiosk postings, web site, and telephone contact information.

 

12.            LPPRD will make a reasonable effort to schedule flashboard manipulation in a manner that allows for advanced notification of manipulation.  LPPRD will notify the DNR, the mayor of Berlin and a local newspaper to issue a press release of flashboard placement, removal, or repair no less than 7 business days in advance of said event.

 

13.            LPPRD will open all 5 lock gates a minimum of 4 hours prior to any manipulation of pins and flashboards located on the Dam.

 

14.            Appropriate Personal Protective Equipment (“PPE”) must be worn at all times by any LPPRD personnel, or its contractor, while manipulating the flashboards on the Dam.  Such PPE shall include, but not be limited to a tether and cable. 

 

15.            Emergency response services personnel must be present during any flashboard operation activities and the rescue team must be proficient in water rescue.

 

16.            Except as provided in paragraph 8.A., LPPRD shall purchase public liability insurance to be effective on or before the day of the execution of this MOUA naming the LPPRD and the State of Wisconsin, Department of Natural Resources, and DNR employees as the named insured in the minimum amount of $1,000,000 single limit per occurrence, including coverage of $1,000,000 for bodily and personal injury and $250,000 for property damage so that the DNR shall be protected from any liability arising out of the operation or management by the LPPRD of the Dam.  The LPPRD shall furnish the DNR with a copy of the insurance policy or a certificate of insurance before the LPPRD performs any work under this MOUA.  This MOUA is conditioned on the DNR's approval of the insurance policy. Any notice of cancellation of the insurance policy will require immediate notice to the DNR.

 

17.            This MOUA will become void when the Dam is either repaired or replaced and flashboards are no longer needed for water manipulation.

 

18.            This MOUA sets forth the entire understanding of the DNR and the LPRRD and may not be modified or amended except by a written document executed and acknowledged by all parties to this MOUA.

 

19.            If any term or condition of this MOUA shall be deemed invalid or unenforceable, the remainder of this MOUA, or the application of the term or condition to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each term and condition shall be valid and enforceable to the fullest extent permitted by law.

 

20.            It is intended that this MOUA shall be construed as being an adequate and legally enforceable agreement.  Enforcement of this MOUA may be by proceedings at law or in equity against any person or persons violating or attempting or threatening to violate any term or condition in this MOUA, either to restrain or prevent the violation or to obtain any other relief. 

 

21.            This MOUA shall be construed and enforced in accordance with the laws of the State of Wisconsin.

 

END OF CONDITIONS


 

IN WITNESS WHEREOF, the DNR grants this agreement and has caused this instrument to be executed on its behalf this                     day                                         , 2015.

 

                                                                        State of Wisconsin

                                                                        Department of Natural Resources

                                                                        For the Secretary

 

                                                                        By                                                                                (SEAL)

                                                                                    Kurt A. Thiede

Deputy Secretary

 

State of Wisconsin     )

                                    ) ss.

County of Dane          )

 

Personally came before me this          day of                                     , 2015, the above named Kurt A. Thiede, State of Wisconsin Department of Natural Resources, to me known to be the person who executed the foregoing instrument and acknowledged that he executed and delivered the same as for the act and deed of said Department of Natural Resources.

                                                                                   

                                                                                                                                                                       

                                                                        *

                                                                        Notary Public, State of Wisconsin

                                                                        My Commission (expires)(is)                                                           


IN WITNESS WHEREOF, the LPPRD hereby accepts and consents to the terms and conditions of this agreement this ____ day                                       , 2015.

 

                                                                       

                                                                        Lake Puckaway Protection and Rehabilitation District

 

                                                                        By                                                                               (SEAL)

                                                                                    Phil Malsack, District Chair

 

 

                                                                        By                                                                                (SEAL)

                                                                         

 

State of Wisconsin                 )

                                                ) ss.

County of ______________   )

 

Personally came before me this ___________ day of                       , 2015, the above named       and       to me known to be the persons who executed the foregoing instrument and acknowledged that they executed and delivered the same.

 

                                                                        ______________________________________________

                                                                        *

                                                                        Notary Public, State of Wisconsin

                                                                        My Commission (expires)(is) ______________________.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This instrument drafted by:

Attorney Kristin A. Hess

State Bar # 1001214 

State of Wisconsin

Department of Natural Resources