HomeMy WebLinkAbout2023-11-13 Drainage Easement - Recorded Johnson AveDrainage Easement
THIS INDENTURE, made this-0 day of 1 V-m,-r , 2023,
by Basler Properties, LLC, a Wisconsin Limited Liability Company, Grantor;
and, City of Oshkosh, a Wisconsin municipal corporation, located ir.
Winnebago County, Wisconsin Grantee.
IN CONSIDERATION of the sum of One Dollar ($1.00) and other
and valuable consideration paid by Grantee, the receipt of which is hi
acknowledged, Grantor, its successors and assigns, does hereby give and
unto Grantee, its successors and assigns, and Grantee accepts, an ease
over, under, and through the land described.
DOC# 1913609
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
RECORDING 00
PAGES: 7
Recording Area
Name and Return Address 6�
City Attorney's Office CAP( @
P.O. Box 1130 0��0
Oshkosh, WI54903-1130
91413680500
PURPOSE: The Easement Property described in this Agreement Parcel Identification Number (PIN)
consists mostly of an unnamed natural creek in the Johnson
Avenue watershed, the creek bank, and adjoining areas that allow the use and maintenance of the
Easement Property. This Easement allows the City to address drainage issues related to the creek, the
watershed, and the City's public storm water management system. The purpose and use by the City as
Grantee of the Easement Property shall be at the City's discretion as part of its public storm water
management system. Grantee's intention is to address current and future storm water drainage issues,
but makes no promises or warranty regarding this Easement's impacts on storm events or
circumstances. Grantee's use may include adding, subtracting, rerouting, and/or enclosing the natural
creek drainage area.
2. GRANTOR PROPERTY: The Easement Property described herein is part of a Grantor's larger
Property currently used for aviation purposes, including buildings, vehicular parking, and airplane
access routes connecting to the adjoining airport.
3. EASEMENT PROPERTY: The Drainage Easement granted in this Agreement shall be over, under,
and through Grantor's larger Property situated in the City of Oshkosh, Winnebago County,
Wisconsin. The Easement Property is more particularly described as follows:
Legal Description Attached as Exhibit A
4. MAP: A map reflecting the location of the drainage Easement granted in this Agreement is attached as
Exhibit B and is fully incorporated.
ACCESS RIGHTS: The water traveling through the drainage Easement is currently designed to be
comprised of mostly natural flow withing the watershed, supplemented through other design elements ofthe
Grantee's public storm water management system. Grantee currently has a structure or artificial facilities
such as pipes, inlets, outlets, and/or rip rap within the Easement Property. Access to the Easement Property
will be from Oregon Street.
6. USE FOR STORM WATER MANAGEMENT SYSTEM: Grantee shall have the right to the non-exclusi
use of the Easement Property as part of its storm water management system. Grantee shall have the right
access, survey, construct, dredge, grade, use, operate, maintain, repair, reconfigure, or relocate the water flc
and drainage areas within the Easement Property. Grantee may construct, install, and maintain any ott
storm water facility or structure on, over, or under the Easement Property that is deemed necessary for pub
storm water drainage purposes at Grantee's discretion. Grantee shall give Grantor not less than seventy-ti
13, 2023
(72) hours written notice prior to performing any substantial work within the Easement Property. In the event
of an emergency, notification shall not be required prior to work or repair, but Grantee shall notify Grantor as
soon as reasonably practical after the commencement of such work or repair. Grantor may install, operate,
and maintain private, storm water drainage facilities within the Easement Property upon receiving explicit
written permission from Grantee, and such permission shall not be unreasonably denied or delayed. Any
storm water drainage facility installed by Grantor within the Easement Property shall remain privately owned,
operated, and maintained. Potential private storm water facilities may include, without limitation, pipes,
drains, inlets, box structures, backflow structures, and pumps and pumping structures.
7. MAINTENANCE: Grantee shall be responsible for maintaining its facilities within the Easement Property.
Maintenance activities include, without limitation, dredging, grading, bank stabilization, maintenance, repairs,
and removal of refuse adversely affecting the flow of water within the unnamed creek and/or other swales
within the Easement Property. Grantee shall grade, seed, and mulch areas disturbed by its activities within the
Easement Property. For Grantee's actions within the Easement Property where Grantor's improvements such
as its parking lot is located, Grantee shall return the improvement to a condition that is materially similar to its
condition before Grantee's work within the Easement Property. Grantee shall not be responsible for the
design, installation, maintenance, repair, or replacement of any private storm water drainage facilities.
Grantee's responsibilities include dredging, grading, bank stabilization, seeding and all other efforts necessary
to allow necessary flow of the creek while minimizing erosion within the Easement Property due to Grantee's
use. The Grantee's use and maintenance of the Easement Property shall be at Grantee's sole discretion for the
purpose of facilitating a reasonable level of functioning of the creek and related areas within the Easement
Property and for its use as a component of the City of Oshkosh's overall public storm water management
plan(s). Grantee shall maintain all public storm water drainage facilities within the Easement Property in a
reasonably good, safe, neat, clean and functional condition at all times during the term of this Easement.
Grantor shall not have any right of entry to perform any repair or maintenance of public storm water facilities
associated with the Easement Property that it believes is necessary, except as otherwise expressly provided in
this Agreement, or except with Grantee's express permission. This restriction shall not prevent or restrict
Grantor from removing debris, rubbish or similar items or materials from the easement area, or for mowing or
trimming vegetation. Grantee shall not be liable to Grantor for any costs related to such activities. Grantor
may access the Easement Property to repair or maintain private storm water facilities. Installation, repair, and
maintenance of private storm water facilities, along with restoration thereafter, shall be at Grantor's expense.
Grantor's responsibilities do not include repairs which are the result of Grantee's use of the Easement
Property.
GOVERNMENTAL OVERSIGHT: To the extent the unnamed creek is now or in the future may be
designated as a navigable waterway, it may be regulated by State and Federal agencies or bodies. Both
Grantor and Grantee understand and agree that they will obtain all necessary permissions, licenses, and
approvals as required and will follow all rules and regulations that pertain to their respective use of the
Easement Property. Grantor agrees to provide Grantee, or the applicable agency, with consent or approval of
Grantee's actions within the Easement Property in Grantor's capacity as property owner, and that such
approval or consent shall not be unreasonably denied or delayed. Grantee agrees to provide Grantor, or the
applicable agency, with consent or approval of Grantor's actions within the Easement Property in Grantee's
capacity has holder of easement rights. Grantor and Grantee agree to provide, as soon as practicable, the other
with copies of any notices received from any governmental agency affecting or relating to the Easement
Property. Grantor and Grantee agree to confer and exchange information in good faith with each other
regarding the use and regulation of the unnamed creek within the Easement Property.
INTERFERENCE WITH EASEMENT: Grantor currently has part of a parking lot, including parking spaces
and drive aisles, located over and across part of the Easement Property. These improvements may remain in
the Easement Property, subject to Grantor's obligation to maintain them. Except for these existing
improvements, Grantor, its agents or assigns, shall not interfere in any way with Grantee's use of the
Easement Property, and in particular shall not dredge, fill, grade, alter the slope or elevation, materially alter
the vegetation associated with the Easement Property, alter any storm water facility intentionally placed
therein, install or construct any structures or improvements or landscaping within the easement, depositing
refuse or waste, or knowingly allowing the deposit of refuse or waste by others. Any maintenance of
September 13, 2023 2
vegetation in the Easement Property by Grantor, including mowing and trimming, shall not be considered
altering the vegetation. Grantor may add private storm water drainage facilities within the Easement Property
upon issuance of appropriate permits and approvals. Grantor shall not place, pile or move snow onto or into
creek or any part of the Easement Property which may cause any interference with the flow of the creek.
Prohibited new structures or improvements include, but are not limited to, temporary or permanent building
structures, driveways, parking areas, sheds, change in elevations, vegetation except grass, landscaping or
fences. Grantee shall be responsible for removing storm debris from the Easement Property. Except as
otherwise expressly provided with respect to snow or ice, Grantor shall promptly remove all other objects,
materials, or structures which materially impede Grantee's use of the Easement Property or limits the capacity
of the creek and any other public storm water drainage feature and facility installed in the Easement Property.
If Grantor fails to remove materials or objects for which it is responsible, Grantee shall remove them at
Grantor's expense.
10. USE OF EASEMENT BY OTHERS: Grantor agrees that Grantee may temporarily assign the construction
and maintenance rights identified herein to any contractor, third party, or other person. Assignees must
demonstrate to Grantee that they have sufficient competence and must give adequate assurances that any work
to be performed in or around the Easement shall be conducted in a skillful manner. Assignees must also
protect Grantor's interest in the Easement Property to the same extent as if Grantee was itself performing the
construction or maintenance.
11. DEFAULT: If either Grantor or Grantee reasonably believes that the terms of this Easement have been
breached, then written notification of the alleged breach shall be delivered to the other party. Any party in
breach shall have sixty (60) days to cure any actual breach or, if the breach cannot reasonably be cured within
the 60-day period, take appropriate steps to materially comply with the party's obligation to cure.
Notwithstanding the foregoing, Grantee is entitled to ensure the continuous proper functioning of its utilities
without waiting sixty (60) days. Grantee 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 Grantee's utilities. All costs and expenses incurred
under such circumstances due to a Party's breach or negligence shall be reimbursed by the responsible party to
the other party within sixty (60) 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 Grantee's use of the Easement 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 Grantor and Grantee, their respective heirs, executors, administrators, successors, assigns, and legal
representatives.
13. 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 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 Agreement.
14. INVALIDITY: If any term or condition of this Agreement, or the application of this Agreement to any person
or circumstance, shall be invalid or unenforceable, the remainder of this 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.
15. NO THIRD -PARTY BENEFICIARY: The terms of this Agreement are for the benefit of the two parties
identified, and it is not the intention of either Grantor or Grantee that other parties shall acquire any rights to
enforce or benefit from through this Agreement.
16. MUNICIPAL LIABILITY: Nothing in this 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,
September 13, 2023
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 ofthe 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 nor Grantee shall be in default under this 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
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 not be required to provide notice prior to exercising any rights pursuant to the
Easement Property and this Agreement, except that Grantee will provide a responsible person at the business
operating on Grantor's Property with advance notice of significant work to be performed within the Easement
Property provided no emergency exists. Any notices related to a breach of this Agreement shall be in writing
and delivered via certified mail, return receipt requested, to the following. 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 GRANTEE:
Basler Properties, LLC
2000 Chicago Drive
Grand Rapids, MI 49519
FOR GRANTOR:
City of Oshkosh
c/o Director of Public Works
P.O. Box 1130
Oshkosh, WI 54903-1130
20. AUTHORITY: Grantor affirms that the undersigned have the authority to sign this agreement on behalf
of Grantor. Grantee affirms that all necessary boards and public officials have authorized this Easement.
The undersigned asserts and affirms that they have they have the authority without limitation to enter into
this Easement Agreement on behalf of Grantor and Grantee.
[SIGNATURE PAGE FOLLOWS]
September 13, 2023 4
IN WITNESS WHEREOF, said Grantor and Grantee have hereunto set their hand and seal the day and year
first above written.
BASLER PROPERTIES, 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 of Authority, 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:
Balow, President
STATE OF WlSe&td N )
) ss.
DATE COUNTY )
Personally came before me this 1$fh day of
r-m bgC , 2023, the above named Lori Balow, to me
known to be such person who executed the foregoininstrument and acknowledged the same, for the purS os�'11�f€�ifr�r,,
contained.
EMILY RAS
Notary Public, State of Michigan NO ry
'
blic, State of Wf3��.Sii, M ICh �Cpetii
County of Ottawa My Commission expires: IlJ%3ca/o�(�?��
ut3
My Commission Expires 10/30/2029
CITYA` in the Coun of Kok*
OSHKOS H
�; i F �> i'
-
B y.
By
Mark A. Rohloff, City Manager
Diane M. Bartlett, City Clerk
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this � day of wycm be r , 2023, the above named Mark A. Rohloff and
Diane M. Bartlett of the City of Oshkosh, to me known to be such persons who executed the foregoing instrument t,-
and acknowledged the same, for the purpose herein contained.
y1�� �V"k
Notary P b ic, State of Wiscon in ��� ���'k':,.�'�
My Commission expires: 23
AP OVED AS TO FORM: ; ? ''Z4~ "
tyllr,A. Lorenson, ,e ity Attorney Fe ...... t; O �'
®FlDtSg6tl``•�'
This instrument drafted by:
Attorney David J. Praska
Oshkosh, WI 54903-1130
September 13, 2023 5
Legal Description for PLE for Parcel #91413680500
PART OF NE 1/4, SE-1/4 O,IACTION 2, T.17N. - R.16E., CITY OF OSHKOSH, WINNEBAGO
COUNTY, Wisconsin, more particularly described as follows:
Beginning at the Southeast Corner of said Section 2;
Thence N 2°22'05"E, along the east line of said SE1/4, also being the centerline of CTH I/
Oregon Street, 2087.26 feet;
Thence N 87"37'55" W, 56.35 feet, to the west right of way line of said Street, also being the
point of beginning of this description;
Thence S 84°53'13'W, 100.87 feet;
Thence N 02026' 19"E, 40.35 feet;
Thence N W53' 13"E,100.87 feet, to the west right of line of said road;
Thence S 2°26'19"W,.continuing along said right of way line, 40.35 feet, to the point of
beginning of this description.
Said Parcel contains 4035 square feet. Said parcel is also subject to any and all easements,
reservations, restrictions and conveyances of record.
The purpose of this description is to describe a 40 foot in width permanent limited easement
for storm sewer maintenance, repair and or replacement to the City of Oshkosh, from
the parcel owners.
i
i
EXHIBIT A (1 of 1)
41
P.L - P.L.
NOTES:
THIS EXHIBIT IS A GRAPHIC REPRESENTATION AND IS FOR REFERENCE PURPOSES
REFER TO THE CONVEYANCE DOCUMENT FOR PARCEL RELATED DETAILS.
PLE COORDINATE TABLE
POINT
Y COORDS
XCOOROS
150
456549.662
791514.884
151
456589.97E
791S16.601
152
456598.966
791617.074
153
456SS8.652
79161S.358
134
4S6556.324
791671.660
PROJECT' NUMBER: 4636-05-72 (SHEET NUMBER:1
PLE ACQUISITION EXHIBIT
W RIPPLE AVENUE TO W WAUKAU AVENUE
CTH I CITY OF OSHKOSH WINNEBAGO COU
PARTOF NE 1/4, SE 1/4 OF SECTION 2, T.17N. - R.16E., CITY OF OSHKOSH,
WINNEBAGO COUNTY, WISCONSIN
PLECOURSE .i o- '
COURSE
BEARING
DISTANCE
Tl'SO T151.
NO2' W 19"E.
40.35'
T151 T152
N84.53'13"E
100.87'
T152 T153
S02.26' 19W
40.36'
T153 T150
S8.4.93'13"W
100.87'
T153 T154
N87'37'55"W
56.35'
TAX PARCEL NUMBER:91413680SOO I (; S2—\
1 T151 n
IT1S3 ,.
P.L.
cx
TAX PARCEL NUMBER: 91413680700
SCALE, FEET
0 25 SO
C3 C3
SCHEDULE OF LANDS OWNERS NAMES ARE SHOWN FOR REFERENCE
PURPOSES ONLY ANO ARE SUBIECTTO CHANGE,
PRIOR TOTHETMSFER OF IANO INTERESTSTO
&INTERESTS REQUIRED THE
PARCEL
INTEREST
PLE
NUMBER OWNEB(SI REQUIRED S.F.
1413680SOO BASLER PROPERTIES LLC PLE 403S
EXHIBIT B (1 of 1)
FILENAME: FASEMENT.OWG PLOTOATE: 8/18/20132:15 PM
b
PROIECI: