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HomeMy WebLinkAboutE.B. Davis Children's Home & Oshkosh, 8284968 Easement Tx:4205848 Document Dumber Document Title 1 1715394 REGIS T ER'S OFFICE WINNEBAGO COUNTY, WI RECORDED VN THIS INDENTURE,made this day of ,2016, 06/15/2036 8:54 AM by the E,B, DAVIS CHILDREN'S HOME, INC, a isconsin Non-Stoc Corporation,Grantor,and CITY OF OSHKOSH,amunicip corporation,located in CHRISTOPHER LARSON Winnebago County,Wisconsin,Grantee, DEPUTY REGISTER OF DEEDS WITNESSETH: RECORDING FEE :30.00 IN CONSIDERATION of the sum of One Dollar($1.00)and other good Rccording Area D Name and Return Address and valuable consideration paid by the Grantee,the receipt of which is hereby City Attorney's Office acknowledged,the Grantor,its successors and assigns, does hereby give and grant PO Box 1130 unto the Grantee, its successors and assigns,and Grantee accepts, an easement over, Oshkosh,W151903-1130 under,and through the land hereinafter described. 1. PURPOSE: The purpose and use by Grantee of the Easement 91608600000 Property described in this document shall be for use by Grantee for Parcel Identification Number (PIM the installation and use of traffic control poles,signals,wiring,and appurtenances,as well as for the installation and use of a public sidewalk. 2. CONSIDERATION: The parties agree that a material portion of the consideration for this Agreement is the Grantor providing Grantee with the fill I benefit of use of the Easement Property as described herein in return for the Grantee's initial installation,at Grantee's cost, of a public sidewalk with a curb within the Easement Property. The size, location,and construction, including the time of construction,of the public sidewalk and traffic control poles and appurtenances shall be at the sole discretion of the Grantee. Both parties agree that after the initial installation of the sidewalk,all future maintenance,repair,and replacement of the sidewalk shall be the financial responsibility of the Grantor, its successors and assigns pursuant to all relevant codes, titles,and statutes pertaining to sidewalks within the City of Oshkosh. 3. EASEMENT PROPERTY: The property subject to this Easement granted herein shall be over,under,and through certain tracts of land situated in the City of Oshkosh,Winnebago County,Wisconsin,('Easement Property")as identified in Exhibit A,attached,and more specifically described as follows: Part of a parcel of land being part of the SE 1/4 of the NW%a of Section 15, TI8N,RI 6E,Lot I CSM 2196, 16th Ward,City of Oshkosh, Winnebago County,Wisconsin,and being described as follows: Part of Lot 1 northwesterly of a line described by: beginning 10.0 feet southeasterly of the northwest corner of said Lot i and terminating 13.0 feet northeasterly of the northwest corner of said Lot 1,bounded on the north by Oshkosh Avenue and on the west by North Westfield Street. Said Easement contains approximately 65.0 square feet. Street Address: 1260 Westfield Street,Oshkosh 4. CONSTRUCTION ACCESS: The Grantee shall have the ongoing right to temporarily access and use a uniform strip of property five(5)feet in width within Grantor's parcel#91611800000, directly adjacent to the Easement Property for construction and maintenance purposes. The Grantee shall have the right to use this property only for construction and maintenance purposes,and only for periods reasonably necessary to complete each construction and/or maintenance project. Construction and maintenance access shall include the initial construction,as well as subsequent maintenance,repair, and replacement completed by,or at the direction of,Grantee. Grantor is not prohibited from installing landscaping,fencing, or structures on this adjacent property that are otherwise allowed by 1 Aril 12, 2016 1�' City Code. Grantee shall be responsible for grading and seeding this adjacent property comprising the construction/maintenance easement, if necessary,upon completion of construction or maintenance activity. 5. ACCESS RIGHTS: Grantee shall have the complete right to access and use the Easement Property for Grantee's use as a public right of way. The general public shall have access to the Easement Properly on locations where there is a sidewalk or as otherwise is generally allowed on public rights of way. 6. USE AS EASEMENT FOR PUBLIC PURPOSES: Grantee shall have the right to fully use the Easement Property as a right of way for public purposes. The Grantee shall have the right to access,survey, lay,construct,use,operate, maintain,repair,replace,relocate, and/or reprove sidewalks,signs,and other public utilities that may be necessary for use for a public utility. The determination of public utilities that may be necessary shall be at the discretion of the Grantee. The public shall have the right to use any sidewalks on the Easement Property in a manner consistent with use of other sidewalks within the City by the public. The location of sidewalks,signs,and other public utilities may be over,under, or through the Easement Property. 7. CONSTRUCTION/MAINTENANCE: Grantee shall be responsible for maintaining,repairing, and replacing all underground utilities and utility structures within the Easement Property. Grantee shall be responsible for maintaining above ground public utilities and public utility structures, excluding sidewalks. Grantor shall be responsible for all aspects of maintenance,repair,and replacement of the sidewalk and the terrace area between the sidewalk and street. The Grantee responsibilities include grading and seeding the Easement Property upon the initial installation of a sidewalk,and thereafter upon any maintenance,repair,or replacement of any other utility and/or utility structure over,under,and through the easement property. Grantor may be assessed costs of construction and/or maintenance on the Easement Properly as otherwise allowed or required by the Municipal Code. 8. INTERFERENCE WITH EASEMENT: The Grantor, its agents or assigns,shall not interfere in any way with the Grantee's use of the easement,and in particular shall not alter the slope or elevation of the Easement,alter the vegetation associated with the Easement Property,or install or construct any structures or improvements within the Easement Property. Grantor shall not place,pile,or move snow or ice onto the Easement Property.Prohibited 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. 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 Easement or,if Grantor fails to remove these materials or objects,Grantee shall remove them at Grantor's expense. 9. USE OF EASEMENT BY OTHERS: The Grantor agrees that the Grantee may temporarily assign tine construction and maintenance rights identified herein to any contractor,third party,or other assignee who demonstrates to the Grantee sufficient competence and gives adequate assurances that any work to be performed in or around the Easement Property shall be conducted in a skillful manner,and that the Grantor's interest in the Easement Property shall be protected to tine same extent as if the Grantee was itself performing the construction and maintenance. 10. DEFAULT: If either Grantor or Grantee reasonably believes that tine terms of this 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 remove or repair the sidewalk or terrace, at Grantor's cost,when it believes that the condition of the sidewalk and/or terrace materially interferes with the lawful use of tine Easement Property and/or poses a danger or hazard to the public. Il. TERM: This Easement is being granted in perpetuity for public purposes and uses,both current and future,without regard to tine 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. 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. 2 April 12, 2016 13. INVALIDITY: If any term o►•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. 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 through this Agreement. 15. MUNICIPAL LIABILITY: 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 inununities and limitations include,but are not limited to,Sections 345.05, 893.80,and 893.83,Wisconsin Statutes. Such damage limits,caps and irmmmities are intended to be preserved by the Grantor and incorporated into this agreement by the municipality and its agents,offices,and employees. Such Iimitations and immunities shall apply to any dispute related to this agreement,even if tite statutory and/or common law limitation is based upon a tort. 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: E.B. Davis Children's Home, Inc. c/o Executive Director 1260 North Westfield Street Oshkosh,WI 54902 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 Agreement,and that the undersigned have the authority to sign this agreement on behalf of the Grantee. Grantor affirms that it has the authority without limitation to enter into this easement agreement.The undersigned assert and affirm that they have they have the authority without limitation to enter into this easement agreement on behalf of the Grantor. Grantee's written consent will be required before any additional easement or use of this easement property by third parties is granted. SIGNATURE PAGE(S) FOLLOW DRAFTED BY: Attorney David J.Praska Assistant City Attorney Oshkosh, Wisconsin 3 April 12, 2016 IN WITNESS WHEREOF,said Grantor has hereunto set their hand and seal the day and year first above written. GRANTOR E.B. DAMS I l-I.DRE RE'; E C. Andrew rips,BoaP es ent (print name) (print title) STATE OF WISCONSIN ) )ss. WINNEBAGO COUNTY } ,•••••tptt/1Hr flrrrprrrrr Personally came before me this IL day of ,2016,the abort pati 1�i�v 1a llips,to me known to be such person who executed the foregoing instrument d ack wiled d t same +i'he ur osN died contained. N ary Public, State of Wi fir . z My Cormnission expires: Z VV STATE OF WISCONSIN )ss. ts� '+•+� O ay T,Q �G���. WINNEBAGO COUNTY } '400,104+fill I00 Ott, Personally came before me this day of ,2016,the above named ,to me known to be such person who executed the foregoing instrument and acknowledged the same,for the purpose herein contained. Notary Public,State of Wisconsin My Commission expires: GRANTEE CITE'OF OSHKOSH By: �-- M rk . Rohloff, City M na er By: tj t(0 Pamela R.Ubrig,City Cler STATE OF WISCONSIN ) )ss. WINNEBAGO COUNTY ) Personally came before me this day of � _ ,2016, the above named Mark A. Rohloff and Pamela R. Ubrig of the City of Oshkosh,to me known to be such persons who executed the foregoing instrument and acknowledged the same, for the purpose herein contained. {{J Notary Public,State of Wisconsin My Commission expires; i C JA OVED S FORM: n A. Loren soon &ily Attorney April 12, 2016 t ' CONSENT OF MORTGAGEE The undersigned,being the holder of a mortgage against the property identified and described as"Easement Property"and construction easement in this casement agreement,consent to the grant of the easement set forth above and agree that its interest in the Easement Property shall be subject to this casement. (print name of mortgagee) By; �i�.ryrr,yL &zw (signature) (title) L (print name) (print title) STATE OF WISCONSIN ) )ss. WINNEBAGO COUNTY } Personally came before me this lqn day of a ,2016,the above named (signator)of M S- /9,t-1" 0A ff (mortgagee), to me known to be such persons who executed the foregoing instrument and acknowledged the same,for the purpose herein contained. otaty Public, 9tate of Wisconsin My Commission expires: 1r7Yt � � , lbZ-o BRITTIAN HENDERSON Notary PuMc State of Wisconsin This instrument drafted by: Attorney David J.Praska Oshkosh,WI 54903.1130 5 April 12, 2016 s� f PARCEL 16-0851-0000 \ 6\5 0 \ WALLACE W. & ��� '\0 5�� � AUDREY R. WAGNER 1646 OSHKOSH AVE. 8 ` NCO3& \ PROPOSED TRAFFIC \ ? SIGNALIBASEIPOLE AND PARCEL 16.0852-0000 ` CONDUIT EASEMENT WALLACE W. & \ ro ry AUDREY R. WAGNER40 011 ��OG 0iPROPOSED SIDEWALK, TRAFFIC SIGNAL/BASE/POLE 10, AND CONDUIT EASEMENT 4 Oslo 3 0` 0 '0 �0� �0 0, rno �q PROPOSED SIDEWALK, TRAFFIC SIGNAL/BASE/POLE � PARCEL 16-08600000 AND CONDUIT EASEMENT ELIZABETH B. DAVIS Q� CHILDREN'S HOME 1260 N, WESTFIELD ST, PARCEL 16-1980.0000 TIMOTHY & , BRIGETTE SMITH �t�`•,r ` r 1705 OSHKOSH AVE. CITY OF OSHKOSH I;NQINPWRINQb1V181014 TRAFFIC SIGNAL/BASE/POLE, SIDEWALK AND rrr,3 nrArmE: DRAWN, CONDUIT EASEMENTS SYts1lEt.d94G6eh1;4rhArt 2,2J,20t6 � Trr�eSfdnptEyttatnl+ ' 0I2APHIC o =o 7o North Westfield Street & Oshkosh Avenue 1 SCALE,(IN FErT) 1 Woo—20 pE r xhihit A- '