HomeMy WebLinkAbout2023-08-23 Watermain Easement - 420 Koeller -RecordedWatermain Easement
THIS Agreement, made this ) I day of AVM , 2023,
By and between 965 South Green Bay Road LLC, a Wisconsin Limited
Company (Grantor) and the City of Oshkosh (City), a Wisconsin P
Corporation, (Grantee).
PURPOSE: The Grantor is redeveloping it's Property. The parties are
entering into this Easement Agreement to allow the installation,
operation, and maintenance of a public watermain and related facilities
benefitting the redevelopment as well as the Grantee's overall water
distribution system.
2. EASEMENT: The Grantor grants, and the Grantee accepts, a muni,
watermain easement over, across, and through the Easement
Property described in this Agreement. The Easement may be used
for all purposes related to the City lawful provision of public water
D • •
NATALIE •III
REGISTER OF DEEDS,
WINNEBAGO CO
RECORDED e
RECORDING FEE: 30.0
PAGES: 6
Name and Return Address
City Attorney's Office
P.O. Box 1130
Oshkosh. WI54903-1130
90611630000=
Parcel Identification Number (PEN)
distribution services. It is anticipated that the municipal watermain facilities, in the present and future, will
be primarily underground. However, the approved design of the facilities may require surface level elements
which are allowed at Grantee's sole discretion pursuant to the terms of the Easement.
3. CONSIDERATION: The sum of One and N0/100 dollars ($1.00) along with other good and valuable
consideration, the receipt and sufficiency of which is acknowledged. Each party agrees that it is giving and
receiving material benefits that may or may not reflect quantifiable monetary value. The Grantor will
benefit new public water services within the redevelopment as well as having more certainty regarding the
uses of the surface of the Easement Property, and Grantee will benefit from the protected operation of its
public watermain facilities along with more certainty regarding the easement's surface condition, which will
result in more efficient maintenance, repair, and construction of its facilities.
4. EASEMENT PROPERTY: The legal description for the Easement Property is attached as Exhibit A
5. LOCATION OF EASEMENT: A map identifying the location of the Easement Property is attached and
incorporated into this Agreement as Exhibit B.
6. ACCESS RIGHTS: The Grantee shall have the right to access and use the Easement Property for any purpose
described in this Easement Agreement.
7. MAINTENANCE: The City shall be responsible for installing, maintaining, repairing, and replacing its municipal
watermain facilities 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 the disruption. Whe
repairing grass, the City may grade, seed, and mulch, and is not required to install sod. When repairing hard surface
areas, the City will patch the area disturbed so that the condition thereafter is substantially similar to the condition
before disruption. 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, as well as any future driveways, drive aisles, or other similar improvements
that the City may allow to be constructed within the Easement Property. Grantor is responsible for maintenance of
any other improvements, such as private utilities serving the redevelopment Property that Grantor is allowed by the
City to place within the Easement Property. Grantor shall not move or place snow or ice onto the Easement Propert3
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 watermain facilities that may disrupt Grantor's use of it
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.
W
06, 2023
INTERFERENCE WITH EASEMENT: Grantor shall not materially interfere with the Grantees 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.
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 electrical facilities, private laterals
and service lines internally serving the redevelopment property, as well as connecting Grantor's development to
the City's utilities. Grantor anticipates installing curb, 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 interfere with or adversely affects the
City's use of the Easement Property.
Grantor shall not construct or install new structures or improvements, or alter approved structures or
improvements, including temporary or permanent building structures, drive aisles, and/or parking areas that
have not been otherwise approved in writing by the City's Department of Public Works and also through the
City's zoning process, sheds, change in elevations, vegetation except grass, landscaping or fences. A separate
Encroachment Agreement, or other document acceptable to the City, shall be required for any future structure or
improvement that is not explicitly allowed by this Agreement.
c. Grantor shall register and locate all private utilities within the Easement Property as part ofthe Diggers Hotline
process. In the event Grantor will be performing work within the Easement Property, excepting non -intrusive
work such as mowing snow removal and the like, Grantor shall be responsible for obtaining a right of way
permit in the same manner as if they were performing work in the public right of way.
d. The parties are unaware of any existing Encroachments or obstructions within the Easement Property that
would limit the City's lawful use of the Easement Property. Encroachments that are not identified within this
Agreement or within a separate Encroachment Agreement as being allowed by the City, regardless of whether
the Encroachment existed at the time of this Agreement or was installed in the future, shall be removed or
relocated in a manner acceptable to the City, at Grantor's expense. In the event the unauthorized
Encroachment/obstruction is not removed by Grantor after reasonable notice under the circumstances, then
Grantee will remove the Encroachment/obstruction to the extent necessary to complete the City's construction
or installation in a manner that will allow the functioning of its facilities in the manner for which they were
designed. Grantee shall not be subject to any liability to Grantor for Grantee's removal of any
Encroachment/obstruction within the Easement Property.
9. 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.
10. 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 parry's obligation to cure. Notwithstanding the foregoing, the City is entitled to ensure the
continuous proper functioning of its municipal watermain 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 watermain system. All costs and expenses incurred under such circumstances due to any parry's
breach or negligence shall be reimbursed the party sustaining damage within thirty (30) days of receipt of a bill for
the same.
11. 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.
June 06, 2023
12. 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.
13. 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.
14. 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.
15. 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.
16. 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 parry'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.
17. 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.
18. 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.
965 South Green Bay Road LLC
c/o aei 5 PRk4l'
3305 N Ballar . Road, Suite C
Appleton, WI 54911
And
City of Oshkosh
c/o Director of Public Works
215 Church Avenue
Oshkosh, WI 54902
19. AUTHORITY: The Grantor and Grantee assert and affirm that all approvals for this Easement Agreement necessary
according to its municipal or corporate structure have been obtained and have approved the 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 PAGE FOLLOWS]
June 06, 2023
GRANTOR: 965 SOUTH GREEN BAY ROAD LLC
I am signing this document based upon the contents of a Statement of Authority filed with the State of Wisconsin
Department of Financial Institutions pursuant to Wis. Stat. 183.0302, which authorizes my signature to bind this
Limited Liability Company without restrictions applicable to this document. Alternatively, this Limited Liability
Company has not filed a Statement ofAuthority, but I explicitly assert that I do have the authority to bind the Limited
Liability Company to the terms of this document without limitation or restriction.
By:
Christopher A. Winter, Managing Member
STATE OF WISCONSIN )
) ss.
OUTAGAMIE COUNTY )
By:
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Personally came before me this 184t, day of emu`V 1 2023, the above named
, to me known to be such persons who executed fhe foregoing instrument anddo
purpo6e herein contained. F --,
Notaty�iblic, State of Wisconsin
My Commission expires: "7 / /
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GRANTEE: CITY OF OSHKOSH
By: ✓ 3�-�'— vci
k A. Rohlofl,Qfy Manager
By:
e B Lett, Ci erk
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
A. Winter and
ie same, for the
Personally came before me this N-"' day of QS1F- 2023, the above named Mark A. Rohloff and Diane Bartlett
of the City of Oshkosh, to me known to be such persons who executed the foregoing instrument and acknowledgedg��n�e 4for
the purpose herein contained. ••••.•.•GGp•AND/4*1.•+.y�o
S
Notary Public, State of Wisconsin
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My Commission expires: o�}�o $ % .'n �o TA -
.�... ,, . $ -.3,
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Drafted by:
Attorney David J. Praska
Deputy City Attorney
Oshkosh, Wisconsin
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June 06, 2023 4
LEGAL DESCRIPTION:
PART OF LOT 3 OF VOLUME 1, CERTIFIED SURVEY MAPS, PAGE 4996 (DOC. #1180343),
WINNEBAGO COUNTY RECORDS, LOCATED IN PART OF THE SOUTHWEST 1/4 OF THE
SOUTHWEST 1/4 AND THE NORTHWEST 1/4 OF THE SOUTHWEST 1/4 OF SECTION 22,
TOWNSHIP 18 NORTH, RANGE 16 EAST, 13TH WARD, CITY OF OSHKOSH, WINNEBAGO
COUNTY, WISCONSIN, DESCRIBED AS FOLLOWS:
THE SOUTH TWENTY-FIVE FEET OF LOT 3 OF VOLUME 1, CERTIFIED SURVEY MAPS,
PAGE 4996 (DOC. #1180343), COMMENCING AT THE SOUTHEASTERLY CORNER OF LOT
3 OF CSM 4996 ALSO KNOWN AS THE POINT OF BEGINNING; THENCE NORTH ALONG
THE EAST LINE OF LOT 3 OF CSM4996 A DISTANCE OF 25'; THENCE WEST ALONG A
LINE PARALLEL TO THE SOUTH LINE OF LOT 3 OF CSM 4996 409.65FT TO A POINT
WHICH INTERSECTS WITH THE WEST LINE OF LOT 3 OF CSM 4996, THENCE SOUTH
ALONG THE WEST LINE OF LOT 3 OF CSM 4996 25' TO A POINT KNOWN AS THE
SOUTHWEST CORNER OF LOT 3 OF CSM 4996 ,THENCE EAST ALONG THE SOUTH LINE
OF LOT 3 OF CSM 4996 BACK TO THE POINT OF BEGINNING.
EASEMENT AREA CONTAINS 10,250 SQUARE FEET / 0.235 ACRES, MORE OR LESS.
EXHIBIT A (1 of 1)
POINT OF BEGINNING
P.O.B
A PART OF THE SW i OF THE
SIN i OF SECTION 22 T22N
W STH "E
R1BE IN THE 13TH WARD OF
THE CITY OF OSHKOSH.
I
WINNEBAGO COUNTY,
WISCONSIN
LOT /3 ♦
`�
CSM 4996
P CEL 90611530000
I
I
�
PROPOSED NEW PROPERTY LINE
FOR440 S KOELLER ST�
25 MUNICIPAL
WATER MAIN
EASEMENT
1
�26'�
1
I
1
I
Y
S KOELLER ST
CITY OF OSHKOSH
ENGINEERING DIVISION
MUNICIPAL WATER MAIN
EASEMENT
UTILITY
EXHIMB
DRAWN:
420 KOELLER STREET
25 5o
GRAPHIC 0
SCALE: (IN FEET) -�
EXHIBIT B (1 of 1)
1INCH =5oFEET