HomeMy WebLinkAboutUtility Easemaent, PIN 90102220400 I l l l l l l l l l l l
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Declaration of Utility Easement Tx:4214124
Document Number Document Title 720060
REGIS'TER'S OFFICE
WINNEBAGO COUNTY, WI
RECITALS RECORDED ON
08/09/2016 2:58 PM
1. This Declaration is made#his�day of N _S; ,2016, CHRISTOPHER LAR�ON
by the City of Oshkosh, a Wisconsin Mu icipal Corporation and the
Redevelopment Authority of the City of Oshkosh(collectively the Declarant). DEPUTY REGISTER OF DEEDS
2. The Declarant is the owner of property which is part of a parcel formerlyRECORDING PAGE FEE �`��
Recording Area F>l.�CaES; 7
identified as Lot 2 of Certified Survey Map 6408, which was recorded with the Name and Return Address
Winnebago County Register of Deeds on October 5, 2009, in Volume 1, Pagc City Attorney's Office
6408,as Document Number 1520619(CSM 6408). PO Box 1130
Oshkosh,WI 54903-1130
3. During Declarant's ownership of Lot 2 of CSM 6408, that parcel was
subdivided into three(3)new,separate Lots,phis one(1)new Outlot,through 90102220101 611%t0-iSA_
Certified Survey Map 7068, which was recorded with the Winnebago County 90102220400
Register of Deeds on March 28,2016, in Volume 1, Page 7068,as Document Parcel Identification Number (1'M
Number 17096.84.
4. All of the property within CSM 7068 is within the Declarant's Rcdevelopment Area in which buildings and other structure
have been razed,environmental remediation partially completed,and new development now located on multiple parcels withi
this redevelopment area. It is the Declarant's intention to enable the remaining vacant parcels within the Redevelopment Are
to be conveyed to private parties for further redevelopment.
5. The purpose of this Declaration is to facilitate the redevelopment on Lot 1 of CSM 7068 by allowing a non-exclusive utility
easement to cross a pant of Outlot 1 of CSM 7068, the Easement Property, which will provide more convenient and efficien
public utility access to Lot 1.
6. It is the Declarant's intention that the real property described in Exhibit A, attached and made part of this Declaration, wil
hereafter be used as a non-exclusive public utility easement(Easement Property)subject to the terms and conditions herein.
DECLARATION
The Declarant declares that: !
7. EASEMENT PURPOSE: The purpose of this Declaration and creation of non-exclusive public utility easement is to facilitat
the development within the Declarant's Redevelopment Area in anticipation of the change of ownership of the parcel benefittin
from this Declaration, namely CSM Lot 1, PIN 90102220101, to allow convenient and efficient public utility access for th
development of that parcel. For purposes of clarification of terms in this document, the Declarant may operate systems tha
may be defined as a"public utility,"including a storm water utility. References to the Declarant include those public utilitie5
it operates and controls. References to "public utility(ics)" does not include any public utility operated or controlled by th
Declarant.
8. CREATION OF EASEMENT:The Easement Property,which is a part of CSIVI 7068,Outlot 1,PN 90102220400,as describe
and identified within Exhibit A, attached, shall hereafter be a non-exclusive public utility easement to be used by the City o
Oshkosh and its municipal utilities, as well as public utilities recognized as such by the State of Wisconsin for the put-pose o
installing and maintaining underground public utility services that are within the scope of their respective businesses and tha
benefit the development and operation of improvements located on CSM 7068 Lot 1,PIN 90102220101. "Public utilities" a
used in this document do not include City of Oshkosh and municipal utilities. "Declarant,"as used in this Declaration,include
the entities identified above,and all,of their respective utilities and departments and successors and assigns. Facilities shall b
solely underground, excepting a portion of a concrete pad to be installed on CSM 7068 Lot 1, which shall extend ftoff
CSM7068 Lot 1 and into CSM 7068 Outlot 1 no more than two(2)feet. The Easement Property shall not be used for purpose:
benefitting any parcel other than CSM 7068 Lot 1 without explicit written permission of the owner of CSM 7068 Outlot 1.
August 5, 2016 1
9. NON-EXCLUSIVITY: Use of the Easement Property will be non-exclusive. The Declarant does currently,and will continue
in the future, actively use both the Easement Property surface and underground for public utility services and public facilities.
In particular, and at a minimum, a 36 inch storm water outfall pipe is located underground and a public sidewalk with grass
and landscaping will be located on the surface of the Easement Property. Additionally,other public utilities will be using the
Easement Property to install utility services benefitting CSM 7068 Lot 1. Those public utilities utilizing this Easement Property .
will do so subject to the Declarant's use of the Easement Property for public facilities, both above and below ground, and in
particular the Easement Property's use for an underground storm water outfall and a surface level pedestrian walkway. Each
public utility utilizing the Easement Property will be expected to work with the other public utilities also utilizing the Easement
Property.
10, NOTICE OF SPECIAL CIRCUMSTANCES: The Declarant provides notice of the following:
a. Storm Water Outfall: A City of Oshkosh 36 inch storm water outfall pipe travels underground through CSM 7068
Outlot l and necessarily crosses tine Easement Property as part of the City's overall public storm water drainage
system. This storm water pipe is of critical importance to the City.of Oshkosh's storm water drainage system and,
therefore, those utilities utilizing the Easement Property will do so subject to the operation and maintenance of this
pipe. Public utilities using the Easement Property for installation, repair, or replacement shall maintain a minimum
separation from this storm water pipe of twelve(12)inches above,or eighteen(18)inches below,the pipe. A different
separation distances may be required in the future based upon regulatory or legal reasons. In the event regulatory or
legal reasons require different separation distances or locations,then the public utilities using the Easement Property
shall move,alter, or relocate their facilities at their expense.
b. Sidewalk: The City of Oshkosh will be installing and maintaining a public pedestrian walkway connecting Marion
Road with the City's River Walk, which will travel through and across CSM 7068 Outlot 1 and necessarily crosses
the Easement Property as part of the City's overall public pedestrian walkway system. Those public utilities utilizing
the Easement Property shall do so subject to the continued existence and operation of this public sidewalk.
c. Contaminated Soils: The Easement Property is comprised of contaminated soils that have been and continue to be
subject to Wisconsin Department of Natural Resource review and regulation. At the time of this Declaration, the
Declarant has successfully instituted an approved cap of this property. Anyone using the Easement Property for an
otherwise allowed use, shall be fully responsible for receiving all required regulatory permissions related to any
disturbance of the approved environmental cap on the Easement Property. Any person or entity disturbing or altering
the Declarant's DNR-approved cap on the Easement Property shall hold the City of Oshkosh harmless from all claims,
costs, and damages related to their disturbance of the Declarant's DNR-approved cap and shall fully indemnify the
Declarant for all of its costs, fees, forfeitures, and damages resulting in whole or in part by that person's or entity's
connection to the Easement Property. The aforementioned hold harmless and indemnification shall be based upon a
proportional responsibility.
d. Repairs/Relocation: Public utilities utilizing the Easement Property do so subject to the existence of the Declarant's
storm water pipe and public sidewalk. Any changes to, or protection of, a public utility's facilities that are the result
of regulatory or legal requirements placed upon Declarant shall be changed or protected at the expense of the public
utility.
11. MAINTENANCE: All public utilities using the Easement Property shall be responsible,at their own expense,for inspection,
maintenance,repairs,and replacements of their respective facilities under,over,and on the Easement Property.
a. Declarant will be responsible for routine maintenance and repair of its property, CSM 7068 Outlot 1, including the
surface of the Easement Property,and any of its facilities below tine surface. Examples of routine surface maintenance
include care of grass,trees,shrubs,and other vegetation,and maintenance of its facilities.
b. Public utilities using the Easement Property are responsible for routine maintenance and repairs of their utilities and
facilities. Public utilities are responsible for all damages sustained by the Declarant or others caused by the public
utility's use of the Easement Property. Grantee's responsibilities related to the surface include returning the surface
area to a condition that is the same or materially similar to its condition prior to any maintenance, repairs, or other
work related to the public utility's use of the Easement Property.
c. Due to the location of a public walkway over the Easement Property,any public utility wishing to perform any activity
on the Easement Property that will disrupt or prevent the public's use of the walkway, then the Declarant shall be
notified at least ten(10)business days before such work begins and obtain a right-of-way permit from the Department
of Public Works for CSM 7068 Outlot 1. In the event of an emergency, the public utility may take immediate action
August S, 2016 2
including blocking the public walkway provided the Declarant is notified as soon as practicable. In all cases, the
public's use of the public walkway shall be restored as soon as possible.
d. The public utility shall be responsible for the cost of repairing or replacing any damage to the Declarant's
improvements and facilities located over,under,and through the Easement Property,that is the result of public utility
use of the Easement Property. The Easement Property is located within a heavily contaminated area and has been
subject to regulatory approvals and is subject to ongoing review,the Declarant shall be entitled to monitor and approve
details related to removal and replacement of soils and support structures and capping of the surface at the conclusion
of the surface disruption.
e. In the event that claims or damages are made against the Declarant,by virtue of its status as the property owner of the
Easement Property, due to the negligence or intentional acts of a public utility utilizing the Easement Property, then
the,Declarant shall be held harmless and fully indemnified by the public utility to the extent they are responsible for
such claims or damages.
12. NOTICES: Public utilities wishing to use the Easement Property:
a. Due to the existence of Declarant's storm water pipe and public sidewalk, public utilities utilizing the Easement
Property must obtain a right-of-way permit from the City Department of Public Works. It is expected that the City,
along with all public utilities seeking to use the Easement Property, will act in good faith in protecting all uses of the
Easement Property.
b. Any notices required by this Declaration 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.
City of Oshkosh Oshkosh RDA
c/o Director,Public Works c/o Executive Director
215 Church Avenue 215 Church Street
Oshkosh, WI 54902 Oshkosh, WI 54902
13. TERIVIS ATTACH TO THE REAL PROPERTY. All terms and conditions in this Declaration, including the benefits and
burdens, shall run with the land and shall be binding upon, inure to the benefit of, and be enforceable by the Declarant, or its
respective successors and assigns. It is the Declarant's intention that the utility easement interests be created on, and for the
benefit of,real property it also holds a fee interest in and such property interest shall remain separate and shall not merge.
14. NO CREATION OF STATUTORY PUBLIC UTILITY RIGHTS. Nothing in this Declaration shall be deemed a gift or
dedication of any portion of the Easement Property granted under this Declaration for any public purpose whatsoever. In
particular,without limitation, it is not the Declarant's intent to create any rights in the Easement Property for public utilities in
the same or similar manner as created by Wisconsin Statutes, including Wis. Stat.86.16 and all similar statutory and regulatory
authority.
15. USE OF UTILITY EASEMENT BY OTHERS: Persons using the utility casement may temporarily assign the access and
maintenance rights identified herein to any contractor,third party,or other person. Assignees must demonstrate that they have
sufficient competence and must give adequate assurances that any work to be performed in or around the utility easement shall
be conducted in a skillful manner. Assignees must also protect the Declarant's interest in the Easement Property to the same
extent as if the person benefitting fi•om the utility easement was itself performing the construction or maintenance. Persons
with facilities installed, or to be installed, within the utility easement are responsible to the other for damages caused by their
respective employees,agents,and contractors.
16. DEFAULT: Except for emergency circumstances, if the Declarant, or the owner of CSM 7068 Lot 1, or a public utility
authorized to use the Easement Property reasonably believes that the terms of this Declaration have been breached,then written
notification of the alleged breach shall be delivered to parry allegedly in breach. Anyone in breach shall have thirty(30)days
to cure any actual breach. In emergency circumstances, any both the Declarant and any public utility utilizing the Easement
Property will be required to take immediate action to either repair the problem if the emergency is created by their facilities,or
to protect or alter their facilities if the emergency is created by others.
17. TERM: This Declaration and the utility easement it describes shall be perpetual, shall run with the land, and shall provide
benefits and burdens upon the parties' successors and assigns. This Declaration shall be recorded with the Winnebago County
Register of Deeds, and any subsequent use of the utility easement shall constitute the agreement to be bound by its terms.
August 5, 2016 3
18. WAIVER: No delay or omission by any party to this Declaration in exercising any right or authority related to a term or
condition of this Declaration shall be construed as a waiver of that right or authority.
19. INVALIDITY: If any team or condition of this Declaration shall be held invalid or unenforceable by a court of competent
jurisdiction,then the remainder of this Declaration shall continue to be valid and enforceable to the fullest extent permitted by
law.
20. NO THIRD PARTY BENEFICIARY: The tetTris of this Declaration are for the benefit of the Declarant, the adjoining CSM
Lot 1, PIN 90102220101, and those public utilities authorized to use the Easement Property. It is not the intention of the
Declarant that other persons or entities shall acquire any rights to enforce or benefit fi•om through this Declaration.
21. MUNICIPAL LIABILITY: Declarant incorporates into this Declaration, and relies upon, its municipal limitations and
immunities contained within Wisconsin law. Declarant's municipal immunities and limitations incorporated include, but are
not limited to, Sections 345.05, 893.80, and 893.83, Wisconsin Statutes. The aforementioned damage limits, caps and
immunities shall be applied to and used to govern all disputes, contractual or otherwise, as they apply to the Declarant
municipality and its agents,officers,and employees.
22. GOVERNING LAW: This Declaration 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.
[SIGNATURE PAGE FOLLOWS]
August S, 2016 4
IN WITNESS WHEREOF,said Declarant has hereunto set their hand and seal the day and year first above written.
REDEVELOPME THORITY FOR THE CITY OF OSHKOSH
f
By:
Steve J. CaimmiriA Chair
B '7'r Na"
Y�
H.Allen Davis, III,Executive Director
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally came before me this day of(Lju ��.,2016,the above named Steven J.Cummings,tome known to
be such person who executed the foregoing instrumentand acknowledged the same, for the purpose here in.QmT1A tlLd,,,i r
SLY •,
Notary Public, State of Wiscopsin 'tO T,q��`
My Commission expires: 5 1 G J 7
1
STA'T'E OF WISCONSIN
WINNEBAGO COUNTY } ��'�i 0 O`
R WISG
`'''!!f!!i 11I41i111f"
Personally came before me this day of ,2016,the above named H.Allen Davis,III,to me known to be
such person who executed the foregoing instrument Ad acknowledged the same,for the purpose herein contained.
B"�.y 1.A� .•`` g1 R;ly ��''�.
Notary Public, State of Wisco isin P�•'" �s��''',
My Commission expires: 5 ]S � - �S
CITY OSHKOSH � A s
$y: y�•,
Fitzpatrick ;67' —I�Tlu
ager ''•,,�`O``"�/'C,GO?�.''�
"�f p Y Y l" 0�`
" ``By: � }
Pamela R. Ubrig, City Cl
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY }
Personally came before me this�—day o , 2016, the above named John Fitzpatrick and Pamela R.
Ubrig of the City of Oshkosh,to me known to be such pers s who executed the foregoing instrument and acknowledged the
same, for the purpose herein contained.
,'',j1 jltllF 111IF7lIlIf'',�I
5ER yF
Notary Public, State of Wiscon in ° ►' --- ,•/S,
My Commission expires: S ^1
vE T RM: � —•--
1 '
1 i
in .Lore ons ty ttorney TV, A0 � 0
B 1
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This instrument drafted by: , '`<•,OF'41VSGOC,°���`
Attorney David J.Praska W".Is"
Oshkosh,WI 54903-1130
August 5, 2016 5
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PRIVATE UTILITY EASEMENT FOR 455 MARION ROAD
PART OF LOT 1 AND OUTLOT 1 OF CERTIFIED SURVEY NUMBER 7068 AS RECORDED 1N VOLUME 1, PAGE
7068 OF CERTIFIED SURVEY MAPS DESCRIBED IN WINNEBAGO COUNTY REGISTER OF DEEDS DOCUMENT
NUMBER 1709684, BEING PART OF THE NORTHEAST% OF THE SOUTHEAST%OF SECTION 23,
TOWNSHIP 18 NORTH, RANGE 16 EAST, CITY OF OSHKOSH,WINNEBAGO COUNTY,WISCONSIN,
DESCRIBED AS FOLLOWS;
COMMENCING AT THE NORTHWESTERLY CORNER OF SAID LOT 1 OF CERTIFIED SURVEY MAP NUMBER
7068; THENCE SOUTH 65°47'03" EAST, 258.50 FEET ALONG THE SOUTH RIGHT-OF-WAY LINE OF MARION
ROAD;THENCE SOUTH 24°12'57"WEST, 161.00 FEET TO THE POINT OF BEGINNING;THENCE NORTH
65°35'30" WEST,49.95 FEET; THENCE SOUTH 20°59'42"WEST 17.87 FEET;THENCE SOUTH 69'00'18"
EAST, 12.00 FEET;THENCE NORTH 20°59'42" EAST, 5.13 FEET;THENCE SOUTH 65035'30" EAST,37.25
FEET;THENCE NORTH 24°12'57" EAST, 12.00 FEET TO THE POINT OF BEGINNING. SAID AREA CONTAINS
661 SQUARE FEET, MORE OR LESS.
Exhibit L-�