HomeMy WebLinkAboutEasement- Annex 71, LLC 173
Easement
8 4 4 8 9 0 5
(General Municipal Utilities) Tx:4328897
DOC# 1774515
nt Ninnhor bornment Titir NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY,WX
THIS Agreement,made this�day of August,2018, RECORDED ON:
by and between ANNEX 71,LLC,an Indiana foreign Limited Liability Company,409 09/05/2018 01:26 PM
Massachusetts Avenue,Suite 300,Indianapolis,Indiana 46204,Grantor,and the CITY RECORDING FEE: 30-00
OF OSHKOSH,a Wisconsin Municipal Corporation,215 Church Avenue,Oshkosh, PAGES: 8
Wisconsin 54901,Grantee.
1. PURPOSE: Annex 71 is redeveloping an old industrial property as Recording Area
multi-family housing. Due to this redevelopment project, as well as Name and Return Address
other surrounding public and private projects, the City is replacing City Attorney's Office
and/or reconfiguring its municipal utility systems. The current location P.O.Box 1130
of municipal utilities within the eastern part of Annex 7 I's Property and Oshkosh,W1 54903-1130
the location of adjoining municipal utility systems in the same 90102410100
general area have resulted in the eastern part of Annex 71's Property Parcel Identification Number (PIN)
being considered the most appropriate location for new,upgraded,
and future parts of the City's municipal utility system.
2. EASEMENT: Annex 71 grants, and the City accepts,an Easement with a uniform sixty(60)foot width over,
under,and through the eastern part of Annex 7 I's Property described in this Easement Agreement. The City
is allowed to use the Easement Property for all purposes related to its municipal utility systems and facilities.
It is anticipated that the municipal utility systems and facilities will be primarily underground. However,
the proper design of various municipal utility systems and facilities may require surface level elements,
including manholes, inlets,valves and signage. These surface level municipal utility facilities that are pall of
the underlying municipal utility system and facilities will also be allowed within the Easement Property.
This municipal utility Easement is considered by the parties to be limited to those municipal utilities of the
City of Oshkosh,and is not intended to be interpreted as allowing the location of other entities considered to
be"public utilities"as defined or described by law.
3. CONSIDERATION:The sum of One and NO/100 dollars($1.00)along with other good and valuable
consideration,the receipt and sufficiency of which is acknowledged. Both parties agree that each is giving
and receiving material benefits exceeding monetary value. The City will benefit from the redevelopment of
Annex 7 I's property and the improvement of its municipal utility systems,and Annex 71 will benefit from
the efficient operation of City utility systems and facilities.
4. GRANTOR'S PROPERTY: Annex 7 I's larger Property on which the Easement is located is described as
follows:
That part of the South East'/4of the North East'A and part of the North East 1/4ofthe
South East 1/4of Section 23,Township 18 North,Range 16 East, in the First Ward,
City of Oshkosh, Winnebago County,Wisconsin,described as follows,
Lot One(1)of Certified Survey Map 7242,recorded with the Winnebago County
Register of Deeds on August 4,2017,as document number 1745976.
PIN: 90102410100
Street Address:482 Marion Road
5. EASEMENT PROPERTY: The Property subject to this Sixty(60)foot Easement Agreement(Easement
Property)is located in the City of Oshkosh,Winnebago County, Wisconsin, is described as follows:
Legal Description Attached as Exhibit A
6. LOCATION OF EASEMENT: A map identifying the location of the Easement Property within which the
City's municipal utility systems and facilities will be located is attached and incorporated into this
Agreement as Exhibit B.
7. ACCESS RIGHTS: The City shall have the right to access and use the Easement Property for any purpose related to
the terms and conditions described in this Easement Agreement.
S. MAINTENANCE: The City shall be responsible for maintaining,repairing,and replacing its municipal utility
systems and facilities installed in the Easement Property. The City shall be responsible for maintaining and repairing
the surface of the Easement Property to the extent that it is disturbed by the City's use of the Easement Property.
Annex 71 is responsible for routine maintenance of the surface, including mowing, landscape maintenance,snow and
ice removal on any drive aisles, and maintenance of any allowed improvements Annex 71 places within the Easement
Property. Annex 71 shall not place snow and ice onto the Easement Property. The Pat-ties agree to work together to
minimize the effects of any maintenance or repairs of the City's municipal utilities and facilities that may disrupt any
existing or future use of Annex 7 I's Property. Except for emergencies,the City will provide Annex 71 with seven(7)
calendar days advance notice of any maintenance or repairs within the Easement Property that would disrupt or
interfere with Annex 71 s use of a drive way or drive aisle that has been installed within the Easement Property, In the
event that the surface of the Easement Property is damaged during the City's maintenance or repair activities,then the
City shall repair the surface to a condition substantially similar to the condition before the damage. When repairing
grass,the City may grade and seed and is not required to install sod.
9. INTERFERENCE WITH EASEMENT: Annex 71 shall not materially interfere with the City's use of the Easement
Property,or,except as otherwise approved by the City, install or construct any new or additional structures,
improvements,or landscaping on the Easement Property without the permission of The City, Prohibited new
changes,structures,or improvements include,without limitation,temporary or permanent building structures,parking
areas,sheds,change in elevations,vegetation except grass, landscaping or fences unless otherwise approved in
writing bythe City. Annex 7 I's plans as approved by the City include a drive aisle connecting Annex 7 I's
development with Marion Road. Annex 71 may install,maintain,and repair this driveway and drive aisle and any
other improvement that is approved by the City that is otherwise within the surface area of the Easement Property.
Annex 71 shall obtain a right-of-way pert-nit fi-onn the City before performing any work within the Easement Property.
10. USE OF EASEMENT BY OTHERS: Annex 71 agrees that the City may temporarily assign the construction and
maintenance rights identified herein to any contractor,third party,or other person that is working with the City on the
City's utilities. Assignees must demonstrate to the City that they have sufficient competence and must give adequate
assurances that any work to be performed in or around the Easement Property shall be conducted in a skillful manner.
Assignees must also protect the City's interest in the Easement Property to the same extent as if the City was itself
performing the construction or maintenance.
It. DEFAULT: If either Annex 71 or the City reasonably believes that the terms of this Easement Agreement have been
breached,then written notification of the alleged breach shall be delivered to the other party. Any party in breach
shall have thirty(30)days to cure any actual breach or, if the breach cannot reasonably be cured within the 30-day
period,take appropriate steps to materially comply with the party's obligation to cure. Notwithstanding the
foregoing,the City is entitled to ensure the continuous proper functioning of its municipal utilities and facilities
without waiting thirty(30)days. The City may use its discretion to evaluate any necessary maintenance and/or
repairs, or any interference with a permitted use of the Easement Property,and take any immediate reasonable action
without notice to ensure the proper functioning of The City's municipal utilities systems and facilities. All costs and
expenses incurred under such circumstances due to either party's breach or negligence shall be reimbursed the other
within thirty(30)days of receipt of a bill for the same.
12. TERM: This Easement is being granted in perpetuity for public purposes and uses,both current and future,without
regard to the City's use of the Easement Property at any particular time. 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 Annex
71 and the City,their respective heirs,executors,administrators,successors,assigns,and legal representatives.
13. WAIVER: No delay or omission by any party to this Easement Agreement in exercising any right or power arising
out of any default under any of the terms or conditions of this Easement 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 Easement Agreement.
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14. INVALIDITY: If any term or condition of this Easement Agreement,or the application of this Easement Agreement
to any person or circumstance,shall be invalid or unenforceable,then the remainder of this Easement Agreement shall
not be affected and each remaining term and condition shall be valid and enforceable to the fullest extent permitted by
law.
15. NO THIRD PARTY BENEFICIARY: The terms of this Easement Agreement are for the benefit of the two parties
identified, and their respective heirs,executors,administrators,successors,assigns,and legal representatives. It is not
the intention of either Annex 71 or the City that other parties shall acquire any rights to enforce this Easement
Agreement or to benefit from it including,without limitation,other entities that may be considered"public utilities"
by law.
16. MUNICIPAL LIABILITY: Nothing in this Easement Agreement is intended as a waiver of the municipality's right
or opportunity to rely upon or use 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 applied,and are incorporated
into this agreement and shall govern all disputes regardless of the underlying theory for relief,whether contractual or
otherwise,as they relate to the municipality and its agents,officers,and employees.
17. FORCE MAJEURE: Neither The City nor Annex 71 shall be in default under this Easement Agreement if its failure
to perform is caused by any of the following events: act of God;fire;flood;severe storm;power outages;material
shortages or unavailability or other delay in undertaking their responsibilities identified in this Easement Agreement
that do not result from the parties failure to maintain their property or facilities. In order to claim relief under this
Section,the other party must be notified in writing of the existence of the event relied upon and the expected
cessation or termination of that event. For the duration of any valid Force Majeure event as defined by this Section,
the affected party's performance shall be excused. However,the affected party is still required to take appropriate
means to minimize or remove the event causing Force Majeure and,within the shortest possible time,attempt to
resume performance of the obligation affected by the event of Force Majeure.
18, 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.
19. NOTICES: The City shall provide reasonable notice prior to entering the Easement Property for any purpose related
to this Easement Agreement. Any notices related to a possible breach of this Easement Agreement 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.
FOR ANNEX 71:
Annex 71, LLC
c/o The Annex Group,LLC
Attn: General Counsel
409 Massachusetts Ave., Suite 300
Indianapolis, IN 46204
FOR THE CITY:
City of Oshkosh
c/o Director of Public Works
P.O. Box 1130
Oshkosh, WI 54903-1130
20. AUTHORITY: Annex 71 affirms that the undersigned have the authority to sign this agreement on behalf of the
entity. The City affirms that all necessary boards and public officials have authorized this Easement Agreement. The
undersigned assert and affirm that they have they have the authority without limitation to enter into this Easement
Agreement on behalf of the City and Annex 71.
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SIGNATURE PAGE(S)F01,LOW
DRAFTED BY:
Attorney David J. Praska
Deputy City Attorney
Oshkosh, Wisconsin
IN WITNESS WHEREOF,said Grantor and Grantee have hereunto set their hand and seal the day and year first above
written.
ANNEX 71,LLC,
an Indiana limited liability company
By: Mecca Companies, Inc.,
Its: Manager
By: — / /6� ��' e,�L ' ...— ............
Kyle D. Bach,CEO
STATE OF INDIANA
ss.
MARION COUNTY
Personally,came before one this of the above-named Kyle D.Bach,CEO of Mecca
Companies, Inc.,the Manager of Annex 71, I.,LC'to me kn6) to be such person who executed the foregoing instrument and
acknowledged the same, lor the purpose herein contained.
t/)-
...... ......
No,a r y u I Ifi c State of I t i d ian a
My""ornmission expires:
EMJULIE M.ELLIOTT
MY.
- :*,. Madon County
MY Commission Expires
August 24,2023
CITY OF OSHKOSIJ
By: By:
Mark A. Rohloff,City Manager Pamela R.Ubrig,City C er
STATE OF WISCONSIN
)ss.
WINNE'BAGO COUNTY
Personally,came before me this__a day of 2018,the above-naj �M Mark A.Rohlo and Pamela R.
Ubrig of the City of Oshkosh,to me known to be such who.o-ex.ecuted ff the foregoi g inst ument and acknowledged the
same,for the purpose herein contained.
....................... .....................-
Notary Public, Wisconsin
My Commission expires:
AP AS TO FORN)
i. a
LyNkA,4,01ison, .4XApy
5
CONSENT OF MORTGAGEE
The undersigned, being the holder of a mortgage against the property which includes the identified and described as
"Easement Property"described in this Easement Agreement, consent to the grant of the Easement set forth above for the sole
purpose of subordinating its interest in the Easement Property to the conveyance of this Easement.
Choice Bank
By: ......................
Stanley G, "VP
STATE OF WISCONSIN
ss.
WINNEBAGO COUNTY
4e,FVP ofChoice
mf d 8ame�,S, urpose herein
Bank,to me known to be such persons who executed the fn�egoing instrument and ackno 10*111@ceia
contained.
0 T4
ary Kiblic State of'W sconsii
L 10
My Commission expires:
MUNICIPAL UTILITY EASEMENT
482 Marion Road
The property is located in the City of Oshkosh,Winnebago County,Wisconsin,and is more
particularly described as follows:
That part of the southeast'/a of the northeast 1/4 and part of the northeast 1/4 of the southeast
1/4 of Section 23, Township 18 north, Range 16 east, in the first ward, City of Oshkosh,
Winnebago County, Wisconsin, described as follows:
Commencing at the southerly extended northeasterly line of said lot 23 of block"F"of the
Western addition at a point on the corner of Lot 1 C.S.M 7242; thence North 38 degrees
28 minutes 57 seconds east, along the southerly extension of the northeasterly line of said
lot 23 of block"F" of the Western addition a distance of 15.10 feet; thence southwesterly
along and parallel to the southerly line of Lot 1 of C.S.M 7150 a distance of 60.03;thence
south 38 degrees 25 minutes 36 seconds west, along the northwest line of lot 2 of said
C.S.M. 7150 a distance of 15.13; thence south along the westerly line of lot 2 of C.S.M.
7150 a distance of 126.13 feet to a point on the northern right of way line of Marion road;
thence northwesterly along and parallel to the northern right of way line of Marion road a
distance of 60 feet; thence northeasterly along a line parallel to the westerly line of Lot 2
of C.S.M 7150 back to the point of beginning.
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