HomeMy WebLinkAboutTemporary Limited Easement/002039100, 002039600 111111111111111111
TEMPORARY LIMITED 8055433
ors C -1-.1 Clerk Easement Tx:4038217
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DocumCdf er Document Title
REGISTER'S OFFICE
WINNEBAGO COUNTY, WWI
THIS INDENTURE,made this-3l day of OCA7 be r" ,2012, RECORDED ON
by KEVIN W. RADLOFF and KIM M. RADLOFF, collectively, Grantor, and 1.1102/2.01 09:27 AM
CITY OF OSHKOSH, a municipal corporation, located in Winnebago County,
Wisconsin,Grantee, JULIE PAGEL
WITNESSETH: REGISTER OF DEEDS
IN CONSIDERATION of the sum of Fifty Thousand and NO/100 Dollars RECORDING FEE 30.00
Recording Area
($50,000.00)and other good and valuable consideration paid by the Grantee,the Name and Return Address
receipt of which is hereby acknowledged,the Grantor,their successors and assigns,
does hereby give and grant unto the Grantee,its successors and assigns, and Grantee City Attorney's Office
accepts, a temporary limited easement over,under,and through the land hereinafter Oshkosh,WI 54903-1130
described.
1. PURPOSE: Grantee is the owner of property adjoining the 002039100
Grantor's western boundary. Grantee obtained this western property 002039600
from Grantor for the purpose of constructing a storm water drainage Parcel Identification Number (PIN)
basin as part of the City's storm water management system. Grantee now wishes to construct the storm
water basin. Construction of the basin will require removal of significant amounts of soil,clay,and similar
material from Grantee's property and relocation of the material to property east of Grantor that is also owned
by Grantee. The Grantor and Grantee have reached an agreement that will allow Grantee to temporarily use
a sixty(60)foot strip of property across Grantor's farm(Easement Property)as a haul road to allow the
transport of material between the Grantee's western and eastern properties.
2. TERM: This temporary limited easement shall commence on October 24,2012 and terminate on May 1,2013,or on
the date that the material hauling has ended and the Easement Property is restored by Grantee,whichever is earlier.
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.
3. PROPERTY: The property subject to this easement granted herein shall be over,under,and through certain
tracts of land situated in the Town of Algoma,Winnebago County,Wisconsin, (`Easement Property"),
identified visually in Exhibit A[attach map], and described as follows:
Part of the Northeast 1/4 and the Southeast 1/4 of the Southwest 1/4 of Section 31 and the Northwest 1/4 of
the Southeast 1/4 of Section 31,Township 18 North,Range 16 East,Town of Algoma,Winnebago County,
Wisconsin, being part of Lot 2 of Certified Map Number 4518 describing the centerline of a 60 foot access
easement described as follows:
Commencing at the West 1/4 Corner of said Section 31;thence South 89°06'03"East 942.01 feet along the
North line of the Southwest 1/4 of said Section 31;thence South 00°41'32"West 1,328.45 feet to a point on
the North line of the Southwest 1/4 of the Southwest 1/4 of said Section 31;thence continuing South
00°41'32"East 2.13 feet; thence South 89°12'16"East 395.43 feet to the West line of Outlot 1 of Certified
Survey Map 4255;thence continuing South 89°12'16"East 30.97 feet to the East line of said Outlot 1;
thence continuing South 89°12'16"East 451.86 feet;thence 77.23 feet along a curve to the right having a
radius of 100 feet whose chord bears South 67°04'48"East 75.32 feet;thence South 44°57'19"East 194.27
feet;thence 35.65 feet along a curve the left having a radius of 100 feet whose chord bears South 55°10'11"
East 35.47 feet to a point on the West line of Lot 2 of Certified Survey Map 4518 and the Point of
Beginning. Thence continuing 42.58 feet along the curve to the left with a radius of 100 feet whose chord
bears South 77°35'00"East 42.26 feet;thence South 89°46'57"East 321.76 feet;thence 90.69 feet along a
curve to the left having a radius of 100 feet whose chord bears North 64°14'12"East 87.61 feet;thence
North 38°15'22"East 183.29 feet; thence 91.98 feet along a curve to the right having a radius of 100 feet
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whose chord bears North 64°36'20"East 88.77 feet;thence South 89°02'43"East 4.80 feet to the East line
of Lot 2 of Certified Survey Map 4518 approximately 30 feet northerly of the Southwest Corner of Parcel
0020396.
Also including the South 60 feet of Parcel 0020396.
4. ACCESS RIGHTS: Grantee shall have the complete right to access and use the Easement Property for,and related
to,ingress and egress for hauling material for Grantee's construction of a storm water drainage basin west of
Grantor's property. Grantor may use the Easement Property for crossing or transport purposes at any time that it is
not being used for Grantee's purposes described herein,provided Grantor's use does not affect or interfere with any
existing or future use of the Easement Property by Grantee during the term herein.
5. USE FOR HAUL ROAD: The Grantee will use the Easement Property for hauling and transportation purposes while
constructing a storm water drainage basin adjacent to the Easement Property. Grantee shall have the right to fully use
the Easement Property for these purposes during the term of this Easement. The Grantee shall have the right to
access,survey,lay,construct,use,operate,maintain,repair,replace,relocate,and/or remove the haul road on any
part of the Easement Property.
6. IMPROPER USE BY GRANTEE OR CONTRACTORS:
a. Grantee will include language in its contracts for the storm water basin project which will require its contractors
to stay on the designated easement and to charge liquidated damages at a rate of$200.00 per day per violation
any contractor who does not follow such rules.
b. Grantee will include language in its contracts for the storm water basin project which will require contractors to
repair any damage to Grantor's property caused by any contractor that does not stay within the designated
easement. Grantee,or its contractors, shall be allowed to enter Grantor's property to repair any damage to
property. This paragraph does not refer to repair of damage to crops themselves,as such damages are addressed
under a separate paragraph.
c. Grantee will include language in its contracts to require its contractors to make crop damage payment(s)caused
by any contractor that does not stay within the designated easement. Crop damage payment(s) shall be
calculated by multiplying the area damaged/disturbed by the average yield per acre of the crop disturbed by the
price of the harvest value of the crop when mature. at the time of the disruption. There shall be a minimum
payment for crop damage of one thousand dollars($1000.00).
d. Grantor shall be responsible for notifying Grantee as soon as they are aware of any instance in which a
contractor fails to stay within the Easement Property and/or causes any crop damage. Grantor must notify
Grantee of any failure to stay within the Easement Property,or any crop damage,no later twenty-one(21)days
after each occurrence. Late claims will not be reimbursed.
e. Grantee shall be responsible for collecting from its contractors any damages based upon paragraphs 6.b.and c.,
above,and for paying the same to Grantor,whether or not Grantee's collection from their contractor is
successful.
7. CREATION,USE,AND TERMINATION OF HAUL ROAD:
a. The Grantee will use all reasonable efforts to maintain the haul road as indicated on Exhibit A,but shall have the
discretion to adjust or modify the route within the Easement Property.
b. Creation: Grantee shall construct the haul road using the following guidelines:
i. Grantee will remove the black dirt from the specific route to be used as a haul road and store the same
within the Easement Property so that it can be used to restore the Easement Property at the expiration
of this temporary easement.
ii. The Grantor shall locate and identify all existing drain tile and culverts within the Easement Property.
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iii. Grantee shall install any necessary temporary culverts to maintain reasonable drainage during the use of
the Easement Property.
c. Use: Grantee shall use the Easement Property in the manner described in this Agreement.
d. Restoration: Grantee shall restore the Easement Property by the expiration of this temporary easement using the
following guidelines:
i. Grantee shall replace all drain tile and existing culverts located by Grantor pursuant to paragraph
7.b.ii.,above,which is within the Easement Property.
ii. Grantee shall remove all temporary culverts installed for the haul road.
iii. Grantee shall remove any temporary material that is hauled in to construct or maintain the haul road.
iv. Grantee will"deep rip"the subgrade outside of the existing farm lanes to a depth of eighteen inches
(18")to twenty-four inches(24")with three feet(3')to four feet(4')between shanks/rows to
decompact the subsoils within the easement. The entire surface of the subsoil will be scarified.
v. The Easement Property will be graded to restore its original drainage and prevent ponding.
vi. Topsoil will be replaced upon the scarified surface and chisel plowed to decompact the topsoil
vii. Farm lanes existing at the commencement of this temporary easement will be restored. Any temporary
material hauled in to construct or maintain the haul road will be removed. The Grantee will then
compact the entire surface of the farm lane between subsoil and crushed aggregate base course and
place and compact crushed aggregate base course six inches(6")deep and twenty feet(20')wide.
8. INTERFERENCE WITH EASEMENT: Grantor,their heirs,agents,or assigns,shall not interfere in any way with
the Grantee's use of the temporary easement. Grantor shall promptly remove all vehicles,equipment,objects,
materials,or structures which affect or impede the Grantee's use of the Easement Property or limits the capacity of
the haul road for Grantee's purposes. The Grantor shall take reasonable steps to prevent third parties from interfering
in any way with the Grantee's use of this easement.
9. USE OF EASEMENT BY OTHERS: The Grantor agrees that the Grantee may temporarily assign the access rights
identified herein to any contractor,third party,or other assignee that will be performing work on the Easement
Property which would otherwise be allowed for Grantee itself to undertake. Grantee shall take reasonable steps to
ensure that the other party with sufficient competence and gives adequate assurances that any work to be performed in
or around the easement shall be conducted in a skillful manner,and that the Grantor's interest in the easement
premises shall be protected to the same extent as if the Grantee was itself performing the construction and
maintenance.
10. 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
thirty(30)days to cure any actual breach. However,Grantee may immediately remove any object or material which
it believes materially interferes with the use of the haul road within the Easement Property.
11. EXISTING EASEMENTS: The Grantor and Grantee are not aware of any recorded easements which relate to or
affect the Easement Property.
12. 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.
13. 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
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affected thereby,and each term and condition shall be valid and enforceable to the fullest extent permitted by law.
14. 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 the Grantor or Grantee that other parties shall acquire any rights,to enforce or
benefit from,through this Agreement.
15. MUNICIPAL LIABILITY: Except for damages pursuant to paragraph's 6 and 7,above,nothing in this Agreement is
intended as a waiver of the municipality's right or opportunity to rely upon 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 are incorporated into this agreement and shall govern all disputes,contractual or otherwise,as they
apply to the municipality and its agents,officers,and employees.
16. 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.
17. NOTICES: Any notices required by this Easement 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.
FOR THE GRANTOR:
Kevin W.Radloff
Kim M.Radloff
2061 James Road
Oshkosh,WI 54904
FOR THE GRANTEE:
City of Oshkosh
c/o Director of Public Works
P.O.Box 1130
Oshkosh,WI 54903-1130
18. 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 agreement on behalf of the Grantee. Grantor
affirms that they have the authority without limitation to enter into this easement agreement.Grantee's written consent
will be required before any additional easement or use of this easement property is granted by Grantor to third parties
during the term of this temporary limited easement.
19. UNDERSTANDING: The Grantor and Grantee both acknowledge that they enter into this temporary limited
easement agreement knowingly,upon the conclusion of negotiations with the other party,and that they have had the
opportunity to consult with and seek the advice of those with knowledge of their rights and obligations related to this
type of transaction,including without limitation, legal,accounting,real estate,and agricultural professionals. After
reviewing the situation, each party has determined that the agreement with this temporary easement is in their best
interests.
SIGNATURE PAGES FOLLOW
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IN WITNESS WHEREOF, said Grantor has hereunto set their hand and seal the day and year first above written.
KEVIN W. RADLOFF
i� //
Kevin W.Radloff
KIM M. RADLOFF
a�/Kim M.Radlo(
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY ) _
Personally came before me this 354"day of `-pre'r,2012,the above named Kevin W. and Kim M.Radloff, to
me known to be such persons who executed the fore.oing instrument a d acknowledged the same, for the purpose herein
contained.
Nota •ublic,Winne..go County,Wisconsin
My Commission expired: -3,er,rr,ee ne r•}
CITY OF OSHKOSH
By: = (—� ��'�✓� '�
M. A.Rohloff,City Manager
By: �
' . 4��'? " �/T Clerk
Aletk, !J
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
�c ,\Personally came before me this "Ns day of C , 2012, the above named Mark A. Rohloff and�.
Usfg of the City of Oshkosh,to me known to be such . rsons who exe ted the foregoing instrument and acknowledged the
same,for the purpose herein contained.
\Isle .'�'ublic,Wes:.to County,Wisconsin
My Commission ems: �o �rnGi✓iCtt>�--
APP'' VED AS TO FO eta kA.AM"II orenson, srney
This instrument drafted by:
Attorney David J.Praska
Oshkosh,WI 54903-1130
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