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HomeMy WebLinkAboutHistoric Preservation Easement c..-. HISTORIC PRESERV A TION EASEMENT Document Number Document Title The S 27.1 ft. of Lots 11 and 12, Block 7, Plat ofOrigina13rd Ward, 3rd Ward, City of Oshkosh, Winnebago County, Wisconsin. Commonly known as 716 Oregon Street, Oshkosh, Wisconsin 1336844 REGISTER'S OFFICE WINNEBAGO COUNTY. VI RECORDED ON 12/01/2004 09:41AM SUSAN WINNINGHOFF REGISTER OF DEEDS R!:.COkliING Ft.!:. r MAN~JFi:R ft::i: >> O~ PAGES 1~.00 5 Recordinl! Area Name and Return Address City Attorney's Office n Oshkosh, WI 54902-1130 cJ~ _903-0068-0000 Parcel Identification No. ,/ 0- S HISTORIC PRESERVATION EASEMENT 716 OREGON STREET, OSHKOSH, WI THIS PRESERVATION AND CONSERVATION EASEMENT DEED, made this_ day of October, 2004, by and between 716 Oregon Street LLC ("Grantor") and the City of Oshkosh, a municipal corporation ("Grantee"). WHEREAS, Grantor is owner in fee simple of certain real property located in the City of Oshkosh, commonly referred to as 716 Ore~on Street and legally described as the South 27.1 feet of Lots 11 and 12, Block 7, Plat of Original 3r Ward, 3rd Ward, City of Oshkosh, Winnebago County, Wisconsin ("Property"); and WHEREAS, Grantee is authorized to accept preservation and conservation easements to protect property significant in national and state history and culture under the provisions of 966.1111 and 9700.40 ofthe Wisconsin Statutes (hereinafter "the Act"); and WHEREAS, Grantor and Grantee recognize the architectural, historic, and cultural values (hereinafter "conservation and preservation values") and significance of the Property, and have the common purpose of conserving and preserving the aforesaid conservation and preservation values and significance of the Property; and WHEREAS, to that end, Grantor desires to grant to Grantee, and Grantee desires to accept, a preservation and conservation easement (hereinafter, the "Easement") in gross in perpetuity on the Property pursuant to the Act. NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable consideration, receipt of which is hereby acknowledged, and pursuant to Sections 66.1111 and 700.40 of the Wisconsin Statutes, Grantor does hereby voluntarily grant and convey unto the Grantee a preservation and conservation easement in gross in perpetuity over the Property. PURPOSE 1. Purpose. It is the Purpose of this Easement to assure the architectural, historic, and cultural features ofthe Property, specifically consisting of the building fa9ades facing Oregon Street, and 8th Avenue along with any remaining portion of the building facades visible from any public right of way will be retained and maintained forever substantially in their current condition for conservation and preservation purposes and to prevent any use or change of the Property that will significantly impair or interfere with the Property's conservation and preservation. GRANTOR'S COVENANTS 2. Grantor's Covenants: Covenant to Maintain. Grantor agrees at all times to maintain the Building in the same or better structural condition and state of repair as that existing on the effective date of this Easement. Grantor's obligation to maintain shall require replacement, repair, and reconstruction by Grantor whenever necessary to preserve the building in substantially the same or better structural condition and state of repair as that existing on the date of this Easement. This obligation to maintain shall require replacement, rebuilding, repair, and/or reconstruction of the Buildings whenever necessary in accordance with The Secretary of the Interior's Standards for Rehabilitation and Guidelinesfor Rehabilitating Historic Buildings, and The Secretary of the Interior's Standards for the Treatment of Historic Properties with Guidelines for the Treatment of Cultural Landscapes (36 C.F.R. 68), as these may be amended from time to time (hereinafter the "Secretary's Standards"). GRANTOR'S CONDITIONAL RIGHTS 3. Conditional Rights Requiring Approval by Grantee. Without the prior express written approval of the Grantee, which approval shall not be unreasonably withheld or conditioned, Grantor shall not undertake any of the following actions: (a) increase or decrease the height of, make additions to, change the exterior construction materials or colors of, or move, improve, alter, reconstruct, or change the facades (including fenestration) and roofs of the Buildings; 1 (b) erect any external signs or external advertisements except a temporary sign to advertise the sale or rental of the Property; 3.1 Review of Grantor's Requests for Approval. Grantor shall submit to Grantee for Grantee's approval of those conditional rights set out at paragraph 3 information (including plans, specifications, and designs where appropriate) identifying the proposed activity with reasonable specificity. In connection therewith, Grantor shall also submit to Grantee a timetable for the proposed activity sufficient to permit Grantee to monitor such activity. Grantor shall not undertake any such activity until approved by Grantee. Grantee reserves the right to consult with governmental agencies, nonprofit preservation and conservation organizations, and/or other advisors deemed appropriate by the National Trust, concerning the appropriateness of any activity proposed under this easement. Grantor shall make no change or take any action subject to the approval of Grantee unless expressly authorized in writing by an authorized representative of Grantee. 3.2 Standards for Review. In exercising any authority created by the Easement to inspect the Property; to review any construction, alteration, repair, or maintenance; or to review casualty damage or to reconstruct or approve reconstruction of the Building following casualty damage, Grantee shall apply the Secretary's Standards. INDEMNIFICATION 4. Indemnification. Grantor hereby agrees to pay, protect, indemnify, hold harmless and defend at its own cost and expense, Grantee, its agents, trustees, directors, officers and employees, or independent contractors from and against any and all claims, liabilities, expenses, costs, damages, losses, and expenditures (including reasonable attorneys' fees and disbursements hereafter incurred) arising out of or in connection with injury to or death of any person; physical damage to the Property; the presence or release in, on, or about the Property, at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any law, ordinance, or regulation as a hazardous, toxic, polluting, or contaminating substance; or other injury or other damage occurring on or about the Property, unless such injury or damage is caused by Grantee or any agent, trustee, director, officer, employee, or independent contractor of Grantee. In the event that Grantor is required to indemnify Grantee pursuant to the terms ofthis paragraph, the amount of such indemnity, until discharged, shall constitute a lien on the Property with the same effect and priority as a mechanic's lien. Provided, however, that nothing contained herein shall jeopardize the priority of any recorded lien of mortgage or deed of trust given in connection with a promissory note secured by the Property. ADMINISTRATION AND ENFORCEMENT 5. Written Notice. Any notice which either Grantor or Grantee may desire or be required to give to the other party shall be in writing and shall be delivered by one of the following methods: by overnight courier postage prepaid, facsimile transmission, registered or certified mail with return receipt requested, or hand delivery; if to Grantor, then at ownership address shown in records of the office of the Assessor of the City of Oshkosh and if to Grantee, then to the attention of the Director of Community Development, City of Oshkosh, Department of Community Development, 215 Church Avenue, P.O. Box 1130, Oshkosh, WI 54903-1130. Each party may change its address set forth herein by a notice to such effect to the other party. 5.1. Inspection. With appropriate prior notice to Grantor, Representatives of Grantee shall be permitted at all reasonable times to inspect the Property. 5.2 Grantee's Remedies. Grantee may, following reasonable written notice to Grantor, institute suites) to enjoin any violation ofthe terms of this easement by ex parte, temporary, preliminary, and/or permanent injunction, including prohibitory and/or mandatory injunctive relief, and to require the restoration of the Property and Buildings to the condition and appearance that existed prior to the violation complained of. Grantee shall also have available all legal and other equitable remedies to enforce Grantor's obligations hereunder. In the event Grantor is found to have violated any of its obligations, Grantor shall reimburse Grantee for any costs or expenses incurred in connection with Grantee's enforcement of the terms of this easement, including but not limited to all reasonable court costs, and attorney's, architectural, engineering, and expert witness fees. Exercise by Grantee of one remedy hereunder shall not have the effect of waiving or limiting any other remedy, and the failure to exercise any remedy shall not have the effect of waiving or limiting the use of any other remedy or the use of such remedy at any other time. 2 5.3 Liens. Any lien on the Property created pursuant to any paragraph of this Easement may be confirmed by judgment and foreclosed by Grantee in the same manner as a mechanic's lien, except that no lien created pursuant to this Easement shall jeopardize the priority of any recorded lien of mortgage or deed of trust given in connection with a promissory note secured by the Property. BINDING EFFECT; ASSIGNMENT 6. Runs with the Land. The obligations imposed by this Easement shall be effective in perpetuity as long as the improvements as constructed in approximately 1900 are in place and shall be deemed to run as a binding servitude with the Property. This Easement shall extend to and be binding upon Grantor and Grantee, their respective successors in interest and all persons hereafter claiming under or through Grantor and Grantee, and the words "Grantor" and "Grantee" when used herein shall include all such persons. Any right, title, or interest herein granted to Grantee also shall be deemed granted to each successor and assign of Grantee and each such following successor and assign thereof, and the word "Grantee" shall include all such successors and assigns. Anything contained herein to the contrary notwithstanding, an owner of the Property shall have no obligation pursuant to this instrument where such owner shall cease to have any ownership interest in the Property by reason of a bona fide transfer. The restrictions, stipulations, and covenants contained in this Easement shall be inserted by Grantor, verbatim or by express reference, in any subsequent deed or other legal instrument by which Grantor divests itself of either the fee simple title to or any lesser estate in the Property or any part thereof, including by way of example and not limitation, a lease of all or a portion of the Property. 6.1. Effective Date. Grantor and Grantee intend that the restrictions arising under this Easement take effect on the day and year this instrument is recorded in office of the Winnebago County Register of Deeds.. 6.2 Extinguishment. Grantor and Grantee hereby recognize that circumstances may arise that may make impossible the continued ownership or use of the Property in a manner consistent with the Purpose of this Easement and necessitate extinguishment of the Easement. Such circumstances may include, but are not limited to, partial or total destruction of the Buildings resulting from casualty. If circumstances arise under which extinguishment of this Easement would be appropriate, Grantor and Grantee may by mutual written agreement jointly extinguish this Easement. The extinguishment shall be recorded in the office of the Register of Deeds for Winnebago County, Wisconsin. Nothing in this paragraph shall require Grantor or Grantee to agree to any extinguishment or to consult or negotiate regarding any extinguishment. INTERPRET A TION 7. Interpretation. The following provisions shall govern the effectiveness, interpretation, and duration of the Easement. (a) Any rule of strict construction designed to limit the breadth of restrictions on alienation or use of Property shall not apply in the construction or interpretation of this Easement, and this instrument shall be interpreted broadly to effect its Purpose and the transfer of rights and the restrictions on use herein contained. (b) This instrument is made pursuant to the Act, but the invalidity of such Act or any part thereof shall not affect the validity and enforceability of this Easement according to its terms, it being the intent of the parties to agree and to bind themselves, their successors, and their assigns in perpetuity to each term of this instrument whether this instrument be enforceable by reason of any statute, common law, or private agreement in existence either now or hereafter. The invalidity or unenforceability of any provision of this instrument shall not affect the validity or enforceability of any other provision of this instrument or any ancillary or supplementary agreement relating to the subject matter thereof. (c) Nothing contained herein shall be interpreted to authorize or permit Grantor to violate any ordinance or regulation relating to building materials, construction methods, or use. In the event of any conflict between any such ordinance or regulation and the terms hereof, Grantor promptly shall notify Grantee of such conflict and shall cooperate with Grantee and the applicable governmental entity to accommodate the purposes of both this Easement and such ordinance or regulation. 3 (d) To the extent that any action taken by Grantee pursuant to this Easement gives rise to a claim of breach of contract, Grantor and Grantee agree that the sole remedy on the part of Grantor shall be reimbursement of actual direct out-of-pocket expenses reasonably incurred by Grantor as a result of such breach and that Grantor shall not have any right to indirect, consequential or monetary damages in excess of such actual direct out-of-pocket expenses. AMENDMENT 8. Amendment. If circumstances arise under which an amendment to or modification of this Easement would be appropriate, Grantor and Grantee may by mutual written agreement jointly amend this Easement. Any such amendment shall be consistent with the protection of the conservation and preservation values of the Property and the Purpose of this Easement and shall not affect its perpetual duration. Any such amendment shall be recorded in the office of the Register of Deeds for Winnebago County, Wisconsin. Nothing in this paragraph shall require Grantor or Grantee to agree to any amendment or to consult or negotiate regarding any amendment. THIS EASEMENT reflects the entire agreement of Grantor and Grantee. Any prior or simultaneous correspondence, understandings, agreements, and representations are null and void upon execution hereof, unless set out in this instrument. IN WITNESS WHEREOF, Grantor and Grantee have set their hands under seal on the days and year set forth below. 716 OREGON STREET LLC. YY\~l~ MEGAN OOPMAN CITY OF OSHKOSH ~~ ERIC HOOPMAN V;:::L~ RIQ-IARD A. WOLLANGK, CI Y MANAGER ~ r" )1 : ' .. t1f n "Uut: lJ0V PAMELA R. UB G, CITY CI1RK j ACKNOWLEDGMENT STATE OF WISCONSIN ) ...' 'M", .", )ss .' CIt " WINNEBAGO COUNTY ) ...\..~.............'.l/~("# ~ Q ./..L :,;:;.... ~J ...~#.. Personally came before me this 1LL- day of aTCP e r- ,2004, ~ dbo~-~~ ~ rt Hoopman and Eric Hoopman, of 716 Oregon Street, LLC, to me known to be the pEWSMlEs) ~ ffiQllf(s): 0: executed the foregoing instrument and acknowledged that they executed the sam~ .:.su~o lea · ~ authority, for the purpose therei~>c9ntained. ......~('l....." -<....~C5 .- 1/1 .. OJ ...........-<~ ." ~.~ .':~... '~'.',,' Notary Public, Winnebago County, Wisconsin My commission is permanent/expires: B~S--Q'J AUTHENTICATION Signatures of Richard A. Wollangk, ~ Manager and Pamela R. Ubrig, City Clerk, for the City of Oshkosh are authenticated this ayof '/Iil~..J, 2004. ..r ( This document drafted by: Atty. Lynn Lorenson City of Oshkosh, WI 4