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HomeMy WebLinkAbout2023-09-28- sidewalk easement - 750 Elmwood - RecordedDocument Number Easement Document Title THIS INDENTURE, made this 1 B day of , 2023, by BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN, Grantor, and CITY OF OSI KOSH, a municipal corporation, located in Winnebago County, Wisconsin, Grantee, WITNESSETH: DOC# 1911089 REGISTER OF DEEDS WINNEBAGO COUNTY, WI RECORDED ON: 0• RECORDING FEE: 30.00 PAGES: 6 IN CONSIDERATION of the sum of One Dollar ($1.00) and other good Recording Area and valuable consideration paid by the Grantee, the receipt of which is hereby Name and Return Address acknowledged, the Grantor, its successors and assigns, does hereby give and grant City Attorney's Office �K Q unto the Grantee, its successors and assigns, and Grantee accepts, an Easement PO Box 1130 over, under, and through the land hereinafter described. Oshkosh, WI 54903-1130 05-0432-0000 1. PURPOSE: The purpose and use by Grantee of the Easement Parcel Identification Number (PM Property described in this Agreement shall be for the installation and use of a public sidewalk. The City is reconstructing West Lincoln Avenue which is located within the campus of the University of Wisconsin Oshkosh. While there is an existing sidewalk along the street, the slight relocation of the new public sidewalk onto the Easement Property will allow a better connection to adjoining public sidewalks on both ends of the relocated sidewalk. This Easement will allow the public sidewalk to be located on Board of Regents property with the same rights, conditions, and obligations as if it were within the public right-of-way. 2. EASEMENT PROPERTY: The property subject to the Easement granted herein, the Easement Property, is located in the City of Oshkosh, Winnebago County, Wisconsin, is described as follows: Legal Description Attached as Exhibit A 3. EASEMENT LOCATION: For visual reference purposes, the Easement Property is described as: Easement Property Map Attached as Exhibit B 4. ACCESS RIGHTS: Grantee shall have the complete right to access and use the Easement Property as described in this Easement Agreement. 5. USE OF EASEMENT PROPERTY FOR PUBLIC PURPOSES: The Grantee shall -have the.right to access, survey, lay, construct, use, operate, maintain, repair, replace, relocate, and/or remove public sidewalk as well as accessory sidewalk uses including Grantee's signage, all of which may be over, under, and through the Easement Property. The determination of details related to sidewalks and signage that may be necessary shall be at the discretion of the Grantee. Maintenance and repair of the public sidewalk installed within the Easement Property shall be the financial responsibility of Grantor, as Property owner, as it would be if it was within the public right- of-way, pursuant to all relevant codes, rules, and statutes, including special assessments, pertaining to public sidewalks within the City of Oshkosh. 6. CONSTRUCTION/M kUTMNANCE: Grantee will install a public sidewalk and other allowed facilities of the Easement Property. Due to Grantor's use of its adjoining properly, and its overall campus maintenance equipment and procedures, Grantor may request certain changes to the standard public sidewalk installed by Grantee. Such sidewalk changes may be implemented after consultations between Grantor and Grantee, with the changes reflected in corresponding special assessments or other agreement between the parties. Special assessments may be used for work within the Easement Property as described by the City's special assessment policy: Regardless of whether or not special assessments are used for work within the Easement Property, the sides of the Easement Property may be used to calculate frontage for other work that may be specially assessed. The construction and 1 ?clay 26, 2023 installation shall be according to Grantee's specifications and at its discretion. Responsibility for the operation, maintenance, and repair of the public sidewalk will be the Grantor's responsibility as the property owner, as described in the Oshkosh Municipal Code or other applicable laws. For clarification purposes, Grantee will be responsible for all of its subsequent maintenance, repair, and replacement, except to the extent caused by the willful or negligent actions of Grantor, while Grantor retains all maintenance obligations for any public sidewalk, grass, snow and ice within the Easement Property in the same manner as if the public sidewalk was in the public right-of-way. If other City facilities allowed by this Agreement are installed at a later date, the City/Grantee will be responsible for operation, maintenance of those public facilities. INTERFERENCE WITH EASEMENT: The Grantor, its agents or assigns, shall not interfere in any way with the Grantee's use of the Easement Property. In particular Grantor shall not alter the vegetation, hard surface, or other improvements associated with the Easement Property without express written consent of the Grantee, which consent shall not be unreasonably withheld.. Grantor shall not install or construct any structures or improvements within the Easement Property; except that Grantor may cross the Easement with underground private laterals or similar underground facilities serving the adjacent property. Such encroachments, however, are subject to the Easement granted in this Agreement and ultimately are subject to applicable law, including but not limited to those governing the placement of utilities. Grantor shall not place, pile, or move snow or ice on to the Easement Property except in those parts of the Easement that are grass. Prohibited structures or improvements include, but are not limited to, temporary or permanent building structures, driveways, parking areas, sheds, change in elevations, vegetation, landscaping, and fences. Grantor shall be expected to promptly remove any materials or objects it is directly, or inadvertently responsible for locating in the Easement Property and interfering with the use of the Easement Property. If Grantor fails to remove these improper materials or objects, Grantee may remove them at Grantor's expense. 8. USE OF EASEMENT BY OTHERS: The Grantor and the Grantee agree that the parties may temporarily assign the construction and maintenance rights identified herein to any contractor, third party, or other assignee who demonstrates a sufficient competence and gives adequate assurances that any work to be performed in or around the Easement Property will be conducted in a skillful manner, in accordance with Grantor's policies, and that the parties' interests in the Easement Property shall be protected to the same extent as if the respective party was itself performing the construction and maintenance. 9. 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 other party. Any party in breach shall have thirty (30) days to cure any actual breach. However, Grantee may immediately remedy any circumstance when it believes that the circumstance materially interferes with the lawful use of the Easement Property and/or poses a danger or hazard to the public. The cost of such remedies shall be the responsibility of the party causing the circumstance to arise. 10. TERM: This Easement is being granted in perpetuity for public purposes and uses. The Easement shall only be _ considered abandoned or vacated upon the official action taken by the City. 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. 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 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. 12. 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, the remainder of this Easement 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 terns of this Easement 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 through this Easement Agreement. May 26; 2023 14. MUNICIPAL LIABILITY: Both parties to this Agreement as of the date of the Agreement is entered into are governmental bodies that benefit from certain constitutional, statutory, and/or common law immunities and limitations of liability. Nothing in this Easement Agreement is intended as a waiver of either parties' right or opportunity to rely upon the governmental limitations and immunities contained within Wisconsin law. Damage limits, caps and immunities applicable to each party are intended to be preserved and incorporated into this agreement by the parties and their respective 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. However, the foregoing immunities and limitations referenced do not apply to any successors in interest that are not governmental entities as the purpose of this paragraph is to explicitly preserve and incorporate immunities and limitations that already exist applicable to the parties, and not to create new limitations and limitations that do not already exist. 15. 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 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. Notwithstanding anything stated in this agreement to the contrary, Grantor does not agree to any term or condition it cannot agree to by law, nor does it waive sovereign immunity. 16. 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 parry informed of issues or questions regarding the Easement Property. FOR THE GRANTOR: Board of Regents of the University of Wisconsin System 1860 Van Hise Hall 1220 Linden Drive Madison, WI 53706 FOR THE GRANTEE: City of Oshkosh c/o Director, Dept. of Public Works P.O. Box 1130 Oshkosh, WI 54903-1130 17. AUTHORITY: The Grantee 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 Easement Agreement on behalf of the Grantee. Grantor affirms that he has the authority without limitation to enter into this Easement Agreement. The undersigned assert and affirm that they have the authority without limitation to enter into this Easement -Agreement on behalf of the Grantor. SIGNATURE PAGE(S) FOLLOW DRAFTED BY: Attorney David J. Praska Deputy City Attorney Oshkosh, Wisconsin May 26, 2023 IN WITNESS WHEREOF, said Grantor and Grantee have hereunto set their hand and seal the day and year first above written. GRANTO BOARD GENTS OF THE &ERSITY OF WISCONSIN SYSTEM By. , \\0 \ 111 1 1 11 I 1 ////// Alexandria Roe, Senior Associate Vice President ��`� �*. • .... SNF ''; STATE OF WISCONSIN )ss. DANE COUNTY ) P U B\-tp Personally came before me this day of , 2023, the above named Alexaniif4 k cfo to be such person who executed the foregoing instrument and, a�cknojwle ed the same, for the purpose i� idhl dd�4fained. � K. sp,— Nothry Public, State of Wisconsin My Commission expires: _ GRANTEE CITY OF OSHKOSH By: elr— k A. Rohloff City Manag r c By: Di Bartlett, ity Clerk STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY ) Personally came before me this AVday of 2023, the above named Mark A. Rohloff and Diane Bartlett of the City of Oshkosh, to me known to be such p rsons who executed the foregoing instrument and acknowledged the same, for the purpose herein contained. APP) VED AS TO F . A. orenson, i orney May 26, 2023 4emna., QVd4k&nT- Notary Public, State of Wisconsin My Commission expires: Easement for Sidewalk & Electric Parcel 05-0432-0000 Owner: Board of Regents University of Wisconsin Address: 750 Elmwood Avenue Being a part of the Southwest 1/4 of the Southeast 1/4 of Section 14, Township 18 North, Range 16 East, Fifth Ward, City of Oshkosh, Winnebago County, Wisconsin, bounded and described as follows: Commencing at the northwesterly corner of Lot 30 southeasterly of West Lincoln Avenue City's Replat No. 2, the true point of beginning; thence southeasterly 7.5 feet along the westerly line of said Lot 30; thence northeasterly in a straight line a distance of 227.9 feet at a bearing of 76.53 degrees; thence easterly in a straight line a distance of 37.3 feet to the northwesterly corner of Lot 12 southwesterly of McKinley Street City's Replat No. 2; thence northerly 16.0 feet along the easterly line of Lot 26 southwesterly of McKinley Street City's Replat No. 2 to the northeasterly corner of said Lot 26, thence southwesterly 270.0 feet along the southerly line of West Lincoln Avenue to a point on said westerly line of Lot 30, the true point of beginning. Said easement contains 2096.18 square feet or 0.048 acres more or less. EXHIBIT A (1 of 1) I:\Engineering\2021 — 2030 Contracts\2023 CONTRACTS\23-02 Lincoln—McKlntey\dwg\Lincoln—MaKlnley Dedering, Jake 2/2/2023 Easements.dwg SOUTHERLY LINE OF W. LINCOLN AVENUE , / 34 REP�� NQ•2 I C,v' S 1 33 1 0 31 t ' r 36 J N z b 71a 35 t — �°a'd J-- f PROP EASEMENT /�' AREA= / 2096.18 SQ FT ` �► ' 16.0' �•��'CO�. 2Zp,0' 37 .3—� i P.O.B. 27 2 � C �� No.2 28 ^ � , fir(' S REP ` 29 C L 30 ' PARCEL 90504320000 1750 ELMWOOD AVE SW 1/4 OF 12 I 11 SEC. SE 114, �O 25 T18N R16E 24 EXHIBIT B (1 of 1)