HomeMy WebLinkAboutEasement- Northern Telephone and DataRECEIVED 1AN t, 6.J20
Easement
THIS INDENTURE, made this 2n11_1 day of nPf`P1 0 V1 &.Y , 2019,
by the CITY OF OSHKOSH, 215 Church Avenue, Oshkosh, Wisconsin 54901
municipal corporation, Grantor, and NORTHERN TELEPHONE AND DA'
CORP., 300 North Koeller Street, Oshkosh, Wisconsin 54903, a Wiscon
Corporation, Grantee,
Tx:4412857
DOC# 1806929
NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
12/30/2019 10:39 AM
RECORDING FEE: 30.00
PAGES: 7
WITNESSETH: Recording Area
Name and Return Address
IN CONSIDERATION of the sum of One Dollar ($1.00) and other good City Attorney's Office
and valuable consideration paid by the Grantee, the receipt of which is hereby P.O. Box 1130 d tig
acknowledged, the Grantor, its successors and assigns, does hereby give and grant Oshkosh, WI 54903-1130
unto the Grantee, its successors and assigns, and Grantee accepts, a non-exclusive
Easement over, under, and through the land hereinafter described. 90600010100
1. PURPOSE: A non-exclusive Easement to construct, repair, modify, Parcel Identification Number (PEN)
supplement, maintain, operate and/or remove underground facilities necessary for the normal course of
Grantee's business, namely for the transmission of signals used in the provision of communication, video
and/or information services and/or any other services or uses for which such facilities may be used. This
Easement is located on the City's critical Riverwalk which includes not just the Riverwalk on the surface,
but also City utilities above and below ground. This non-exclusive Easement will always be subordinate to
the City's use of the Easement Property, and the City's use of its larger parcel within which the Easement
Property is located, whether such City uses are current or future, or active or passive.
2. EASEMENT PROPERTY: The Easement Property is within a City -owned tract of land over, under and
across a portion of the fractional Section 23, Township 18_ North, Range 16_ East, City of Oshkosh,
Winnebago County, Wisconsin, and more fully described as follows:
Legal Description of Easement Property attached, Exhibit A
MAP: A map reflecting the location of the Easement Property is attached as Exhibit B and fully incorporated in this
document.
4. EASEMENT: The Grantor grants, and the Grantee accepts, a non-exclusive Easement over, under, and through the
Easement Property to construct, repair, modify, supplement, maintain, operate and/or remove underground facilities
used for the transmission of signals for communication, video and/or information services and/or any other services
or uses that are part of the Grantee's current business operations.
a. Grantee's use of the Easement Property shall be limited to the cable, equipment, and facilities necessary to set
parcels adjacent to the Easement Property. Under no circumstances shall the use of the Easement Property be
expanded to include cable, equipment, and facilities that serve other properties, blocks, neighborhoods, areas,
zones, or to otherwise expand the geographic area served by the equipment and facilities within the Easement
Property without prior approval from the Grantor. The prior approval referenced in the foregoing sentence sb
be solely at the Grantor's discretion, and the Grantor is not required to approve such request.
In. Grantee's cables, wires, equipment, and facilities within the Easement Property shall be underground unless
otherwise explicitly allowed by Grantor. Grantor retains the sole and complete discretion in determining
whether or not to allow surface level facilities. If surface level facilities are allowed, the Grantor retains the s(
and complete discretion to direct the location of such facilities, without regard to the costs associated with the
design or location of surface level facilities or alternatives that may be required below the surface that may be
necessary to comply with rules or regulations. This prohibition of surface use does not prevent Grantee from
using the surface to mark the location of its facilities upon request of the Grantor, Digger's Hotline, or similar
entity.
7.2019
C-1
RECEIVED 1AN �, 6.3210
c. Grantee shall install and replace its facilities through the boring process unless specific approval is obtained
from the Grantor to use a trench or other method.
d. Except for an existing access box at the East end of the Easement Property, all Grantee's underground access
boxes that are necessary to operate the facilities shall be within adjoining public right-of-way and not within the
Easement Property. Grantee shall not use Grantor's access boxes or any other Grantor equipment or facilities
for any purpose.
e. The surface and underground of the Easement Property is currently used as a section of the Riverwalk recreation
trail, parkland, grass, landscaping, park amenities, sidewalks, and the electrical and other utility systems serving
the Riverwalk and the Grantor's interests. Grantee's use of the Easement Property, both above and below
ground, shall remain subordinate to any existing or future use of the Easement Property by Grantor.
f. Grantor may use the Easement Property in any manner it deems necessary or appropriate to carry out its
municipal functions. Any use of the Easement Property by the Grantor that is incompatible with Grantee's use
will require the Grantee to remove and relocate its facilities, at Grantee's sole expense.
g. Other easements of record exist on or near the Easement Property, and Grantee's Easement is offered and
accepted subject to those interests. Grantor may grant additional non-exclusive easements allowing other
persons or entities to use the Easement Property for public utility purposes to the extent that such additional uses
are compatible with Grantee's use(s) of the Easement Property at the time of the additional proposed use(s).
Grantor will notify Grantee of additional uses of the Easement Property prior to the construction or installation
of these additional uses.
h. In the event Grantee installs conduit or similar products within the Easement Property for the purpose of
utilizing its Easement rights, such conduit or similar products shall not be used by others for any purpose. This
restriction includes prohibited use by partners, related companies, or unrelated companies that may wish to use
such conduit or similar products for their private or public purposes.
5. MAINTENANCE:
a. Grantee shall obtain a right-of-way permit from the Grantor before performing any work within the Easement
Property.
b. Except for emergencies, no repair, replacement, or maintenance of Grantee's equipment and facilities within the
Easement Property shall close, block, or limit the use of the Riverwalk, or materially interfere with the use of the
Riverwalk or any of Grantor's equipment, structure, wire, cable, pubic amenity, or facility. Material interference
includes both temporary and permanent circumstances. Material interference with the foregoing may be
allowed, at Grantor's discretion, upon reasonable advance notice of the need for repair, replacement, or
maintenance of Grantee's equipment and facilities, along with an approved plan for repair of the site, protection
of Grantor facilities, and restoration of the site. Any approval of any such request, including any limitations or
- conditions, must be in writing. - -- ---
c. Grantee shall return the surface of the Easement Property to a condition that is the same or better than that prior
to any work Grantee performs on the Easement Property at its own expense.
d. Grantee shall be responsible for maintaining its equipment and facilities within the Easement Property, including
maintenance, repair, replacement, or removal when appropriate. The Grantee shall install, repair, and replace its
facilities via boring, and in all cases shall be fully responsible for grading and restoring the surface of the
Easement Property to the same or better condition than it was before the installation. Grantee shall be fully
responsible for repairing the Easement Property to the extent that it is disrupted, altered, or damaged by
Grantee's use of the Easement Property. Repairs to the Easement Property must result in a condition which is
the same or better condition than at the time of the repair or maintenance commenced. All Grantee's
responsibilities to act within this Agreement shall be at Grantee's expense.
November 7, 2019
RECEIVED
JAN u 6.320
t
e. All work within the Easement Property that is performed by or under the direction of Grantee, or their
r
shall conform to all requirements for the City of Oshkosh right-of-way
employees, agents, or representatives,
permits, including the televising any storm sewer or sanitary sewer lines that are bored across. Grantee remains
responsible to Grantor for all responsibilities and liabilities related to use of the Easement Property regardless of
whether or not Grantee has assigned or delegated tasks, jobs, or activities to others.
f. Grantor shall be responsible for all normal and routine maintenance and repairs of the surface of the Easement
Property. Grantor shall notify Grantee prior to digging or otherwise removing soil and other materials to a depth
that is more than two (2) feet below the surface elevation of the Easement Property at the location of Grantee's
facilities.
6.
INTERFERENCE WITH EASEMENT: Grantor may install or construct fences, benches, lighting, pubic space
amenities, municipal services or utilities, shrubs or similar vegetation in the Easement Property at the location of
Grantee's facilities after providing notice to the Grantee.
7.
USE OF EASEMENT BY OTHERS: The Grantor agrees that the Grantee may temporarily assign the construction
and maintenance rights identified herein to any contractor, third party, or other person. Assignees must demonstrate
to the Grantee that they have sufficient competence and must give adequate assurances that any work to be performed
in or around the Easement shall be conducted in a skillful manner. Assignees must also protect the Grantor's interest
in the Easement Property to the same extent as if the Grantee was itself performing the construction or maintenance.
8.
DEFAULT: 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. However, either party may immediately remove any object or material
which it believes materially interferes with its facilities.
9.
TERM: This non-exclusive Easement is being granted in perpetuity for communications purposes and uses within the
scope of Grantee's normal business operations, both current and future, subject to rerouting, termination, and/or
requirements described in this Agreement. All rights, title and privileges herein granted, including benefits and
burdens, shall run with the land and shall be binding upon and inure to the benefit of the Grantor and Grantee, their
respective heirs, executors, administrators, successors, assigns, and legal representatives.
10.
EXISTING EASEMENTS: At least one existing public utility easement exists within some or all of the Easement
Property. Each party retains sole responsibility to undertake any due diligence it deems necessary to determine the
existence of other liens, easements, or encumbrances related to the Easement Property. Each party is responsible for
the current condition of the Easement Property and the title of the Easement Property.
11.
WAIVER: No delay or omission by any party to this Agreement in exercising any right or power arising out of any
default under any of the terms or conditions of this Agreement shall be construed as a waiver of the right or power. A
waiver by a party of any of the obligations of the other party shall not be construed to be a waiver of any breach of
any other terms or conditions of this Agreement.
12.
INVALIDITY: If any term or condition of this Agreement, or the application of this Agreement to any person or
circumstance, shall be invalid or unenforceable, the remainder of this Agreement, 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.
13.
NO THIRD PARTY BENEFICIARY: The terms of this Agreement are for the benefit of the two parties identified,
and it is not the intention of either the Grantor or Grantee that other parties shall acquire any rights to enforce or
benefit from through this Agreement.
14. MUNICIPAL LIABILITY: Nothing in this Agreement is intended as a waiver of the municipality's right or
opportunity to rely upon the municipal limitations and immunities contained within Wisconsin law. Municipal
immunities and limitations include, but are not limited to, Sections 345.05, 893.80, and 893.83, Wisconsin Statutes.
Such damage limits, caps and immunities are intended to be preserved and are incorporated into this agreement and
shall govern all disputes, contractual or otherwise, as they apply to the municipality and its agents, officers, and
employees.
November 7, 2019
RECEIVED JAli 6.320
15. 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.
16. NOTICES: Any notices required by this Easement shall be in writing and delivered via certified mail, return receipt
requested, 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.
19191.i11CIX11) ZXQ1Ka)R
City of Oshkosh
c/o Director, Parks Department
P.O. Box 1130
Oshkosh, WI54903-1130
116)[iM I 1 [d7:\Z t7 4
Northern Telephone and Data Corp.
c/o William K. Miller
300 North Koeller Street
Oshkosh, WI54903
17. AUTHORITY: The Grantor affirms that all necessary boards and elected officials have approved the acceptance of
this Easement, and that the undersigned have the authority to sign this agreement on behalf of the Grantor. Grantee
aff Tins that it has the authority without limitation to enter into this easement agreement.
te7�/:VtI�17�17�e7 A
This instrument drafted by:
David 1. Praska
Deputy City Attorney
Oshkosh, WI 54903-1130
November 7, 2019 4
RECEIVED )AN u g ,310
`
1 If IN WITNESS WHEREOF, said Grantor and Grantee have hereunto set their hand and seal the day and year first above
written.
CITY OF OSHKOSH
By:
c7----NITl A. Rohlof , Ci4 e t
By:
amela R. Ubrig, City Clerk
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this 2-01h day of fl- mbPa', 2019, the above named Mark A. Rohloff and Pamela R.
Ubrig, to me known to be such persons who executed the foregoing instrument and acknowledged the samei kt'We pui�StSse
herein contained.
Mary FlublicpState of Wisconsin
My Commission expires: 12_r / 2O2 3 u _
i3
AP OVED kST FORM: YAAA
'•,
A. LoreII ty Attorney
NORTHERN TELEPHONE AND DATA CORP.
By: / / �
Vhfflfm K. Miller, President & CEO
STATE OF WISCONSIN
) ss.
WINNEBAGO COUNTY )
Personally came before me this -I" " day of 3tRetL1fC , 2019 the above named William K. Miller, to me known to be
such person who executed the foregoing instrument ackno le ed the same, for the purpose herein contained.
c.. J/
Notary Pu c, ate of Wiscon. ,
J!
My Commission expires: .'-Gy •'�I. zcs••
Y
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T9 PUd\\ "
s
Tr OFN1\
November Z 2019
RECEIVED 1AN
6.320
EXHIBIT 1
Buried Communications Cable Easement —Northern Telephone and Data Corp. (NTD)
Oshkosh City Parks Parcel ID 0600010100
Legal Description:
A communications underground cable easement, 8 feet in width lying within the above listed City Park
parcel being part of Lots 10, 11 & 12 Block 92 Plat of Original P Ward now in the Sixth Ward, also
northeasterly %of vacated Texas Street in Document #559321 also that part of Lot 2 & Northwesterly % of
vacated Texas Street lying easterly of Wisconsin Street in Document #532463 also westerly X of vacated
Michigan Street, Wakeman & Dlchmann's Replat, Document#918681 all located in fractional section 23,
T18N, R16E, as recorded with Register of Deeds, City of Oshkosh, Winnebago County, Wisconsin. Said parcel
containing approximately 1.11 acres and easement further described as follows:
-Commencing at the Wert X corner of Section 23; thence, along the West line of the Southwest of said
- - Section 23, S00018'42"W, 670.77 feet; thence N8901226"E, 2647.25 feet to a point on the East right of way
line of Ohio Street per CSM 7423 recorded as Document #1780133; thence, along said East right of way line,
N00°19'SS"W, 107.03 feet; thence, continuing along said East right of way line, N03028'230E, 13.30 feet;
- thence, continuing along said East right of way line, N00032'25"E, 114.70 feet; thence continuing along said
East right of way line, N03055'36"E, 65.54 feet; thence continuing along said East right of way line,
N24428'WE, 102.59 feet per CSM 903 recorded as Document# 564044, thence continuing along the arc of a
curve to the right with a radius of 228.72 feet and cord of 80.43 feet with bearing N34035'56"E to the West
corner of City Parks parcel and point of easement beginning with center reference line thence commencing
S68033'56"E 46.65 feet within said City Park parcel; thence S44000'020E, 86.21 feet, thence S42°52'51"E,
106.92 feet; thence S5103749"E, 40.03 feet; thence 545017'3eE, 90.02 feet; thence S34033420E, 83.80
feet; thence S44057'32"E, 109.24 feet, more or less, to a point of communications easement termination
lying S45002'28"W, 4.00 feet from northeast property corner of Lot 1 per CSM 5619 recorded as Document #
1334088 and subject to all easements and restrictions of record.
PAGE lOF3 Exhibit
RECEIVED