Loading...
HomeMy WebLinkAboutBicycle and Pedestrian Trail Easement Agreement- Annex 71, LLC 2018 Bicycle and Pedestrian Trail 2, 711 8 4 4 8 9 0 6 Easement Agreement Tx:4328897 DOC# 1774516 Dnennipnt'Vitip NATALIE STROHMEYER REGISTER OF DEEDS THIS Agreement, made this day of August,2018, WINNEBAGO COUNTY,WX by and between ANNEX 71, LLC, an Indiana Limited Liability Company, 409 RECORDED ON: Massachusetts Avenue,Suite 300,Indianapolis,Indiana 46204,Grantor,and the CITY 09/05/2018 01:26 PM OF OSHKOSH,a Wisconsin Municipal Corporation,215 Church Avenue,Oshkosh, RECORDING FEE: 30-00 Wisconsin 54901,Grantee. PAGES: 8 1. PURPOSE: ANNEX 71 is redeveloping an old industrial property as multi-family housing. Annex 71 and the City seek to enhance bicycle Recording I Area and pedestrian traffic in and around this new development. To help Name and Return Address achieve this goal,Annex 71 will grant the City a thirty(30)foot City Attorney's Office Easement along the eastern edge of Annex 7 I's Property,connecting PO Box 1130 the Marion Road right-of-way on the south to the adjoining City Oshkosh,W1 54903-1130 property on the north. The purpose of the Easement is to allow the construction of a bicycle and pedestrian recreation trail connecting 90102410100 the City's River Walk,on the south end of this easement,with the Parcel Identification Number(PIN) WIOUWASH Recreation trail and other bicycle and pedestrian areas,near the north end. 2. EASEMENT:Annex 71 grants,and the City accepts,an Easement over,under,and through the Property described in this Bicycle and Pedestrian Trail Easement Agreement. The City is allowed to use the Easement Property as part of its public bicycle and pedestrian trail system as more specifically described in this Easement Agreement and as may be further described in the City's Ordinances,Resolutions,and policies related to bicycles and pedestrians. This Bicycle and Pedestrian Trail Easement will allow the construction of a recreation trail assisting the connection of the public River Walk with the WIOUWASH Trail,the University of Wisconsin-Oshkosh,and the nearby public sidewalk system. In addition to the installation of the actual trail,the City may install signage to the extent it is necessary or desirable as part of its public trail. This Easement is subject to the rights and obligations as described in this Easement Agreement. 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. Both Annex 71 and the City benefit from increased ability of bicycles and pedestrians to utilize the public trials and sidewalks,regardless of whether bicyclists and pedestrians are Annex 71 tenants or members of the public. 4. GRANTOR'S PROPERTY: Annex 7 I's larger Property on which this Easement is located is described as follows: That part of the South East 1/4of the North East 1/4and pail 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 the terms of this Easement Agreement(Easement Property), is located in the City of Oshkosh, Winnebago County,Wisconsin, is described as follows" [Easement Property Described in Exhibit A,Attached] 6. LOCATION OF EASEMENT: A map identifying the location of the Easement Property within which the public bicycle and pedestrian trail 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 public bicycle and pedestrian recreation trail purposes. 8. USE AS EASEMENT FOR PUBLIC PURPOSES: The City shall have the right to access, survey, lay,construct, use,operate,maintain,repair,replace,relocate,and/or remove a bicycle and pedestrian recreation trail within the Easement Property. The bicycle and pedestrian recreation trail within the Easement Property will be pail of a connection between the public River Walk that is south of this Easement,and the public WIOUWASH Trail and University that are North of this Easement. This bicycle and pedestrian recreation trail is not intended to be considered a public sidewalk as defined by local and state law,but instead will be operated and maintained by the City as a public bicycle and pedestrian recreation trail for all purposes. 9. CONSTRUCTION/MAINTENANCE: The City will construct,at its cost,the bicycle and pedestrian recreation trail within the Easement Property. The trail will be constructed in the future after sufficient funds are generated become available to the City within the Tax Increment District within which the Property is located. After the initial construction,the City shall be responsible for constructing,maintaining,repairing, and replacing the bicycle and pedestrian recreation trail within the Easement Property. Annex 71 is responsible for mowing and other maintenance of the remaining surface of the Easement Property, excepting the City's aforementioned obligation to maintain the actual recreation trail. The City is responsible for repairing surface damage within the Easement Property caused by its use of the Easement Property. The City's responsibilities may include grading and seeding the Easement Property upon the initial installation of its facilities,and thereafter upon any maintenance,repair,or replacement of any other utility and/or utility structure over,under,and through the Easement Property. Annex 71 shall be responsible for repairing any damage to the City's recreation trail that are the result of the actions of Annex 71,or their agents. 10. INTERFERENCE WITH EASEMENT: Annex 71, its agents or assigns,shall not interfere in any way with the City's use of the Easement Property,and in particular shall not alter the slope,elevation,or vegetation associated with the Easement Property,or install or construct any structures or improvements within the Easement Property,except underground private laterals or private utility connections crossing the Easement Property,which shall be allowed provided they are subservient to the City's use of the Easement Property. Prohibited structures or improvements include,but are not limited to,temporary or permanent building structures,driveways,parking areas, sheds,change in elevations, and vegetation except as permitted by the City Board of Public Works. Annex 71 shall be expected to promptly remove any materials or objects it is directly,or inadvertently responsible for locating in the Easement Property and that interferes with the City's use of the Easement Property. If Annex 71 fails to remove these structures,materials or objects,the City may remove them at Annex 7 I's expense. The City's written consent will be required before any additional easements or uses of this Easement Property is granted by Annex 71 to third parties; except for Annex 7 I's mortgagee identified herein or its successors and/or assigns if any become owners of the Annex 71's property. 11. 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 assignee who is working with the City on construction of or maintenance of the bicycle and pedestrian trail and who demonstrates to the City sufficient competence and gives adequate assurances that any work to be performed in or around the easement shall be conducted in a skillful manner,and that Annex 7 I's interest in the Easement Property shall be protected to the same extent as if the City itself was performing the construction and maintenance. 12. 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. However,the City may immediately take any actions it believes is necessary to remedy any situation that materially interferes with the lawful use of the Easement Property and/or poses a danger or hazard to the public. 13. 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, 2 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. 14. 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. 15. INVALIDITY: If any term or condition of this Easement Agreement,or the application of this Easement Agreement to any person or circumstance, shall be ruled to be invalid or unenforceable by a court of competent jurisdiction,then the remainder of this Easement Agreement shall not be affected thereby, and each remaining term and condition shall be valid and enforceable to the fullest extent permitted by law. 16. NO THIRD PARTY BENEFICIARY: The terms of this Easement Agreement are for the benefit of the two parties identified,as well as their successors and assigns,and it is not the intention of either Annex 71 or the City that other parties shall acquire any rights to enforce or benefit through this Easement Agreement. 17. MUNICIPAL LIABILITY: Nothing in this Easement 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 by the Grantor and incorporated into this agreement by the municipality and its agents,offices,and employees. Such limitations and immunities shall apply to any dispute related to this Easement Agreement,even if the claim is based in tort law. 18. GOVERNING LAW: This Easement Agreement shall be construed and enforced in accordance with the laws of the State of Wisconsin. Venue for any action regarding this Easement 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: Any notices required by 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 THE GRANTOR: Annex 71,LLC c/o The Annex Group, LLC Attn: General Counsel 409 Massachusetts Ave.,Suite 300 Indianapolis,IN 46204 FOR THE GRANTEE: City of Oshkosh c/o Director of Public Works P.O. Box 1130 Oshkosh,WI 54903-1130 20. AUTHORITY: The City 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 City. Annex 71 affirms that it has the authority without limitation to enter into 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 their respective party. 3 SIGNATURE PAGE(S) FOLLOW DRAFTED BY: Attorney David J. Praska Deputy City Attorney Oshkosh, Wisconsin IN WITNESS WHEREOF,said Grantor and Grantee have hereunto set their hand and sea]the day and year first above written. GRANTOR ANNEX 71,LLC, an Indiana limited liability company By: Mecca Companies, Inc., Its: Manger By: ---------------------------------------- Kyle D. Bach,CEO STATE OF INDIANA ss' MARION COtJNTY ) Personally,came before me this q day of August,2018 the above-named Kyle D. Bach,CEO of Mecca Companies, Inc.,the Manager of Annex 71,LLC,to me known to be such person who executed the foregoing instrument and acknowledged the same,for the Purpose herein contained. -------........................................................................ War Public, State of Indiana My Commission expires: .......... Al JULIE M.ELLIOTT Marion County My Commission Expires August 24,2023 4 GRANTEE CITY OF OSHKOSH B I�IoiC,Crt .. a lag r By: Pamela I U .:. ... f C.......... -. ' R. brig,City Clerk STATE OF WISCONSIN ) ss. WI'N'NEBAC:O COUNTY ) Personally, came before me this�.day of � ]] 2018 the above named Mark A. Rohloff and Pamela R. LJbrig of the City of Oshkosh,to me known to be such pers is who executed the foregoing instrument and acknowledged the same,for the purpose herein contained, ....______.................. ....... .... ..—............................._............-...-........................................................................................... Notary Pubile, ,tat of Wisconsin �� My Commission expires: `J� ff _ `""I�W_ APPROVED AS TO FORM: A. aqsn,Ci A torney 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: 4eedle,L EVP STATE 01"WISCONSIN ss. WINNEBAGO COUNTY Not 011� 1pp.HE Sp 3 of Choice Personally,came before me this 0 .day of 2018,the above-narj!d V G, Lee Batik,to rne known to be such persons who executed the 176t going instrument and ackno edg,4d i as Choice herein contained. aryPdblic, e of Wisconsin I VVISM My Commission expires: I PEDISTRLA.N BICYCLE EASMENT 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 1/4 of the northeast 1/4 and part of the northeast 1/4 of the southeast '/a 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 30 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. { i f Exhibit kt Mad 09-Hom I (,I,'J3za TII) 3Ty�S ,LZ:gd 09 = HOMI T "- •••� �..,L�VI.l 1�lVA�.M J/1L V V� 47OC-91-01 msovI3==ao2SxohIYf4 N.l1Q,vau xraasvasvaxzxncnortanactaa ,L.[�I3I/�Tasys SS3oo�d 210AOM .[�vralLSSQ3d xolslnla�c�Ilx��ru� ��I3 HSOIHSO dO ADD a S W 4d3! V o am Mz 0 Q I-- W coZw � d© Ocom of w n CL LL] zN IL w� W N F C� �r�iy r5 O ka UZ b , V rd cq U. a s/yt* cV \ 0 �� Exhibit �o�I