HomeMy WebLinkAboutWater Main Easement 12-6000-0000 - .
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Water Main Easement 8599776Tx:4442846
DOC# 1817961
nn,ut.,,arit1r11mti°r n.,,."`"'"* NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
THIS Agreement,made this 2-aTh day of r i , ,2020 05 J 01/20 20 10 11 A M
By and between OSHKOSH ASSISTED LIVING, LLC, a Wisconsin Limited RECORDING FEE: 30.00
Liability Company (Grantor) and CITY OF OSHKOSH (CITY), a Wisconsin PAr-cc• 7
Municipal Corporation,(Grantee). °
1. PURPOSE: Grantor will allow City to use the Easement Property for Recording Area
its municipal water distribution system,including use and maintenance Name and Return Address
of the water equipment and facilities,and the construction of new, City Attorney's Office
upgraded,or other facilities related to the City's municipal water P.O.Box 1130
distribution system. Oshkosh,WI 54903-1130
2. EASEMENT: Grantor grants,and Grantee accepts,a municipal 91260000000 �-
Water Main Easement over,under,and through Grantor's Property Parcel Identification Number (PIN)
described in this Easement Agreement. The City is allowed to use the Easement Property for all purposes
related to its municipal water distribution system. It is anticipated that the municipal water distribution
facilities will be primarily underground,although the approved design of the facilities may require surface
level elements,including water valve access boxes and fire hydrants. Except as otherwise specifically
described in this Agreement,this municipal Water Main Easement is limited to those facilities 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 Grantor will benefit from access to
municipal utilities enhancing the development and operation of Grantor's Property. Grantee benefits from
the efficient and accessible location of its municipal systems and facilities.
4. GRANTOR'S PROPERTY:This Easement is located within a larger parcel owned by Grantor(Grantor's
Property)located in the City of Oshkosh, County of Winnebago, Wisconsin,and more particularly described
as:
Lot Two(2)of Certified Survey Map 4395 recorded in the Winnebago County _
Register of Deeds on October 25, 1999 as Document Number 1076909,all being
part of the SE'A of the SE'/ of Section 35,Township 19 North,Range 16 East. RECEIVED •
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5. EASEMENT PROPERTY: The Easement Property is described as follows: Ja 4 �QZ�
[legal description of 30' Water Main Easement attached as Exhibit A]
6. LOCATION OF EASEMENT:A map identifying the location of the Easement Property.is.attached_and
incorporated into this Agreement as Exhibit B. "' "� '
7. ACCESS RIGHTS:The Grantee 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.
8. MAINTENANCE: The City shall be responsible for maintaining,repairing,and replacing its municipal water
distribution equipment and facilities installed in the Easement Property. The City shall be responsible for repairing
the surface of the Easement Property to the extent that it is disturbed by the Grantee's use of the Easement Property.
The City's surface repairs shall return the surface to a condition that is substantially similar to the condition before tit:
disruption. When repairing grass,the City may grade,seed,and mulch,and is not required to install sod. Grantor is
responsible for routine maintenance of the surface, including mowing, landscape maintenance,snow and ice removal
from driveway,drive aisles,parking,and similar improvements that are part of Grantor's plans approved by the City,
October 23, 2019 1
as well as any future driveways,drive aisles,or other similar improvements that the City may allowed to be
constructed within the Easement Property. Grantor is responsible for maintenance of any other improvements
Grantor is allowed to place within the Easement Property. Grantor shall not move or place snow or ice onto the
Easement Property. Grantor is also responsible for maintenance,repair,and replacement of any improvements
allowed to be placed within the Easement Property.Grantor and Grantee agree to work together to minimize the
effects of any maintenance,repairs,or replacement of the City's municipal water management equipment and
facilities that may disrupt Grantor's use of its Property. Except for emergencies,the City will provide Grantor with at
least seven(7)calendar days advance notice of any routine maintenance or repairs within the Easement Property that
may reasonably materially disrupt Grantor's use of its Property.
9. INTERFERENCE WITH EASEMENT: Grantor shall not materially interfere with the Grantee use of the Easement
Property. Except as otherwise approved by the Grantee,Grantor shall not install or construct any new or additional
structures, improvements,or landscaping on the Easement Property without the permission of the Grantee.
a. Grantor is allowed to install private utilities and certain surface improvements within the Easement Property
based on plans approved by the City. Anticipated private utilities include private laterals and service lines
connecting to the City's water main in the Easement Property,as well as connecting to other public utilities that
are located within the Jackson Street right-of-way. Also,Grantor anticipates installing driveways or drive aisles
over parts of the Easement Property. All of these private encroachments would be allowed provided they are
approved in advance by the City and are constructed according to the approved plans. In all cases,the City's
use of the Easement Property will take precedence,and the City reserves the right to require that these private
encroachments be located, or moved at Grantor's expense,in the event such private encroachments interferes
with or adversely affects the City's use of the Easement Property.
b. Grantor shall not construct or install new structures or improvements,or alter approved structures or
improvements,including temporary or permanent building structures,parking areas not otherwise approved
through the City's zoning process,sheds,change in elevations,vegetation except grass, landscaping or fences
unless otherwise approved in writing by the City. A separate Encroachment Agreement,or other document
acceptable to the City,shall be required for any structure or improvement that is not explicitly allowed by this
Agreement.
c. Grantor shall register and located all private utilities within the Easement Property as part of the Diggers Hotline
process.
d. In the event that the Grantee discovers any obstruction within the Easement Property that has not otherwise been
identified within this Agreement as being approved,regardless of whether the obstruction existed at the time of
this Agreement or thereafter,then Grantor shall have the opportunity to remove or relocate the obstruction at its
expense if the obstruction is something that the Grantor wishes to actively retain. However,in the event the
obstruction discovered by Grantee existed as of the date of this Agreement and is something that the Grantor
does not wish to actively retain,then Grantee shall be responsible for removal of such obstruction to the extent
necessary to complete its construction or installation.Grantee shall not be subject to any liability to Grantor for
Grantee's removal of any obstruction within the Easement Property.
10. USE OF EASEMENT BY OTHERS: Grantor and Grantee may temporarily delegate or assign construction and
maintenance rights within the Easement Property identified herein to any contractor,third party,or other person.
Assignees must demonstrate 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 interests in the Easement Property to the same extent as if the party was itself performing the construction
or maintenance.
11. DEFAULT: If either Grantor or Grantee reasonably believes that the terms of this Easement Agreement have been
breached,then written notification of the alleged breach shall be delivered to the breaching party along with a copy of
the same to any other non-breaching 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 water distribution system 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 water distribution system. All costs and expenses incurred under such circumstances due to any
October 23, 2019 2
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party's breach or negligence shall be reimbursed the party sustaining damage within thirty(30)days of receipt of a
bill for the same.
12. TERM: This Easement is being granted in perpetuity for the purposes described herein without regard of the
Grantee'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
Grantor and Grantee,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.
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 Grantor and
Grantee,and their respective heirs,executors,administrators,successors,assigns,and legal representatives. It is not
the intention of either Grantor or Grantee 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 as"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 Grantor or Grantee 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: Grantee 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.
Oshkosh Assisted Living,LLC
c/o Thomas Ostrom
101 North Wacker Dr.
Suite 608
Chicago,IL 60606
And
October 23, 2019 3
City of Oshkosh
c/o Director of Public Works
215 Church Avenue
Oshkosh,WI 54902
20. AUTHORITY: The Grantor and Grantee assert and affirm that all approvals for this Easement Agreement necessary
accordingto its municipal or corporate structure have been obtained and have approved the P rP pp granting and acceptance
of this Easement,and that the undersigned have the authority to sign this Easement on behalf of the Grantor and
Grantee.
[SIGNATURE PAGES FOLLOW]
•
fi
DRAFTED BY:
Attorney David J. Praska
Deputy City Attorney
Oshkosh, Wisconsin
October 23, 2019 4
GRANTOR: OSHKOSH ASSISTED LIVING, LLC
By: -V1Z' (9Zie
Thomas Ostrom cps.( Gri(C 444 /,-t,•---
(title)
STATE OF ILLINOIS )
)ss.
COOK COUNTY )
Personally came before me this30'IL day of a2.c . ,2019,the above named Thomas Ostrom,to me known to be
such person who executed the foregoing instrument d owledged the same, r the purpose herein contained.
---2----_J'
Notary Public, State of Wisconsin
KYLA REBECCA BOND My Commission expires: ems-- 2i t 4-c:2.-I
SEAL
Notary Public, State of Indiana
My Commission Expires June 21, 2021
GRANTEE: CITY OF OSHKOSH
By:
A.Rohlo fC City- r
By: '
Pamela R.Ubrig,City Cler
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
20
Personally came before me this Lofir' day of Mrly , 20X,the above named Mark A.Rohloff and Pamela R
Ubrig of the City of Oshkosh,to me known to be such perso who executed the foregoing instrument and acknowledged the
same,for the purpose herein contained.
Not Ty Public, tate of Wisconsin
My Commission expires: 12' 16/2O23 =
APP OVED AS TO FORM:
orenson, A orney
October 23, 2019 5
30' Water Main Easement
Part of Lot 2, Certified Survey Map 4395, recorded in Winnebago County Register of
Deeds as Document No. 1076909, located in Southeast '/4 of the Southeast "/ Section
35, T19N, R16E, City of Oshkosh, Winnebago County, Wisconsin, containing 16,164
Square Feet (0.3711 acres) more or less, described as follows:
Commencing at the Northeast corner of Lot 2, Certified Survey Map 4395; thence, along
the North line of said Lot 2, 889°22'20"W 20.01 feet to the point of beginning; thence,
parallel with the Westerly right of way line of Jackson Street, S01°56'45"E 538.78 feet to
the South line of said Lot 2; thence, along said South line, S89°13'49"W 30.01 feet;
thence S01°56'45"E 538.86 feet to said North line of Lot 2; thence, along said North
line, N89°22'20"E 30.01 feet to the point of beginning.
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Xhibit 11-6
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Exhibit
Utility Easement
City of Oshkosh, Winnebago County, WI I
For: 41 Management, LLC w 11 rui 18 I
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_3 Lot 2
————1- S 89°22'20"W 365.10' Lot 1 N 89°22'20"E
30.01' "-S 89°22'20"W
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16,164 Square Feet (/)
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Lot 1 N 89°13'49.E 365.08' S 89°13'49"W
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a. Davel Engineering&
Environmental, Inc.--"---.( 0 80 160
Civil Engineers and
Aq' Land Surveyors
ENOINEERINo 1811 Racine Street
Mena88a,Wisconsin Exhibit
Ph.920-991-1886,Fax 920-830-9595
100
May 01, 2019 — 01:32 PM J:\Projects\5402gan\dwg\Carlson\5402Easement.dwg
Sheet:Exhibit