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HomeMy WebLinkAboutConstruction Easement/PIN 90400110000 Temporary Construction Easement 8 3 0 1 2 3 2 Tx:4217909 Document Number Document Tihe 1722215 REGISTER'S OFFICE THIS Easement Agreement is entered into this�day of August, 2016, WINNEBAGO COUNTY, WI by and between the CITY OF OSHKOSH (City), a Wisconsin Municipal RECORDED ON Corporation,located in Winnebago County,Wisconsin,Grantor,and OSHKOSH 09/06/2016 9:15 AM COMMUNITY YOUNG MEN'S CHRISTIAN ASSOCIATION, INC, (YMCA),a Wisconsin Non-Stock Corporation, Grantee. CHRISTOPHER LARSON DEPUTY REGISTER OF DEEDS IN CONSIDERATION of the sum of One Dollar($1.00)and other good and valuable consideration paid by the Grantee,the receipt of which is hereby Rea PAGES:INC' FEE �fl.flfl acknowled ed the Grantor its successors and assi ns does hereb Recording area dress 7 acknowledged, , assigns, y give arid Name and Return Address grant unto the Grantee, its successors and assigns,and Grantee accepts,a City Attorney's Office temporary construction easement over,under, and through the land hereinafter PO Bos 1130 described. Oshkosh,WI 54903-1130 I. PURPOSE: A City public park,Roe Park,is adjacent to the downtown kelp'GIN iD YMCA facility. The YMCA is beginning a significant construction and 90100110000 U`7� renovation project of its facilities. Additional space beyond the YMCA Parcel Identification Number (PLv) property boundaries will make the logistics of the construction and renovation of the new/renovated facilities easier. The City is willing to have a part of Roe Park adjacent to the YMCA temporarily fenced off from public use for the purpose of assisting the YMCA construction/renovation as long as the City's turf,trees, landscaping elements, and park improvements are protected and returned to the City in the same condition as existed at the time the YMCA assumed it's temporary possession of the Easement Property, 2. TERM: The Grantee is allowed to use the Easement Property beginning on the date this Easement is fully executed,and shall expire on the date that the Grantee completes the project identified in the Easement Agreement,or six(6)months after this Agreement is fully executed,whichever occurs first. The parties may elect to execute an official termination of this Temporary Construction Easement Agreement, but parties agree that the Easement rights will expire without notice or further action taken by either party on the date six (6)months from the date this is fully executed. 3. PROPERTY: The Grantor grants,and the Grantee accepts, a Temporary Construction Easement over, under, and through certain tracts of land situated in the City of Oshkosh, Winnebago County,Wisconsin, (`Construction Easement Property")and more fully described as follows: [Legal Description and ILhrp Attached As Exhibit 1] Easement Property contains 0.167 Acres(7,264 Square Feet),more or less. Street Address:300 Washington Avenue, Oshkosh,Wisconsin Property Benefitting from Temporary Easement: 324 Washington Avenue PEN 90400080100 4. ACCESS RIGHTS: Grantee shall have the right to access and use the Easement Property for the purposes described in this Temporary Construction Easement Agreement, 5, USE OF EASEMENT: Grantee shall have the right to use the Easement Property to expand the construction footprint of its construction/renovation project at its adjacent YMCA facility. Along with expanding the construction footprint, the Grantee will also be removing certain improvements within the Construction Easement including a part of a parking lot, and adding improvements within the Construction Easement including a sidewalk connecting Grantee's private walk to a public sidewalk in Roe Park. The allowed uses of the Construction Easement Property will be incidental to the actual construction occurring on the adjoining Grantee property. a. Uses that are reasonably likely to darnage any trees,landscape features, or sidewalks within the Easement Property are not be allowed. Grantee shall take all reasonable actions to avoid uses that damage the soil and/or grass within the Easement Property. For those uses of the Easement Property that August 15, 2016 � r are not reasonably likely to damage trees, landscape features,sidewalks,soil, and grass,such uses must be undertaken using all actions necessary to avoid damaging the Easement Property and those features and improvements within the Easement Property. b. The Grantee must install and maintain a silt fence along a portion of the west boundary of the Construction Easement that is also on the east side of the north/south public sidewalk within Roe Park. The silt fence will extend along this western boundary beginning at the southern boundary and extending approximately 232 feet north to the approximate point where the public sidewalk curves to the west. The silt fence shall be maintained in accordance with City of Oshkosh Department of Public Works specifications. The Grantee shall be responsible for taking all necessary and reasonable precautions to ensure that the public avoids both the silt fence itself as well as avoiding injuries related to the silt fence. c. Grantee must install and maintain all necessary barriers to ensure that members of the public, including those using Roe Park, cannot enter any areas of the Construction Easement Property where actual construction is occurring, and in particular during the removal and/or construction of parking areas and sidewalks during the term of this Temporary Construction Easement. Grantee must remove the required barriers at the conclusion of actual construction. Barriers may include temporary construction fencing, barricades,and signage. No barrier, including fencing,may be attached to the ground without the written permission from the Grantor. For purposes of clarification,no holes shall be dug for purposes of inserting poles or anchors into the ground. d. Except for the anticipated actual construction to occur within the Construction Easement as noted in 5.c., above, and for the purpose of clarifying the use of the Construction Easement Property, it shall not be used: a)as a staging area;b)for storage(temporary or long term)of materials, equipment, or tools;or, c) as a route for any heavy equipment or vehicles. "Heavy equipment or vehicles"is intended to mean anything heavier than a utility service vehicle(for example,items such as a John Deere Gator and all similar types of equipment or vehicles). e. The City Forester must approve all fencing, barriers, signs, and other protective devices and installations before they are actually placed on or installed in the Easement Property,and before Grantee assumes temporary possession of the Easement Property. All uses,and fencing and other barriers,described in this Agreement shall take into consideration tree drip zones and tree roots within the Construction Easement Property. Subject to final approval of plans and installation by the City Forester,the following minimum tree protection precautions shall be taken: A)a minimum four foot(4')high temporary chain link fence shall be placed outside of the drip line of the tree canopy and completely circle the tree(s)to be protected,with fence posts installed using pier block or other above ground support standards where possible and avoiding posts or stakes into major roots; B)no stockpiling of materials, vehicular traffic, or storage of equipment or machinery shall be allowed within the limits of the fencing, and the fencing shall not be moved or removed unless approved by the City Forester;and, C)any damage to the trees,or any incident occurs that may reasonably be thought to damage a tree, must be reported to the City Forester immediately. f. Roe Park is expected to remain open to the public(luring the term of the Construction Easement. The Grantee is expected to take all reasonable steps at their expense within the Construction Easement to ensure the safety of the public that may be using City facilities within the Construction Easement. The Grantor reserves the right to suggest or require certain public safety measures be taken by the Grantee,at the Grantee's expense, within the Construction Easement and such suggestions or requirements shall not be unreasonably denied. 6. MAINTENANCE: Grantee shall maintain all fencing,barriers,signs, and other protective devices and installations in good condition, and so that they functionally serve their intended purpose during the course of this'Temporary Easement. a. Grantor will maintain the grass and any landscape features and park facilities within the Construction Easement Property during the term of this Temporary Construction Easement. b. Upon the expiration of this Temporary Easement,Grantee shall return all grass,trees,grading, landscaping features,sidewalks,and park facilities within the Construction Easement Property to the same condition as the moment that Grantee assumed temporary possession of the Easement Property. ,4ugust 15, 2016 2 r c. In those areas where the Grantee will be removing facilities from the Construction Easement Property, such areas shall be returned to a condition as required by the Grantor including,without limitation, grading and seeding. In those areas where the Grantee will be adding facilities within the Construction Easement, including sidewalks,the non-sidewalk areas shall be graded and seeded. d. In the event that weather conditions,or the season in which the Grantee's project ends,prevents a fair and proper review and restoration of the Construction Easement Property conditions,then the Grantor shall have twelve(12)months after the completion of the Grantee's project to notify Grantee of all maintenance,replacement,reconstruction requirements for which Grantee is responsible. e, The Grantor has advised Grantee of Grantor's particular concern for the health of the trees within the Easement Property. To that end,the Grantor will monitor the trees within a two(2)year period after the expiration of this Temporary Easement Agreement,and Grantee shall remain fully liable to the Grantor for damage to any tree within the Construction Easement Property attributable to Grantee's use of the Easement Property. f. These terms shall survive the expiration of the Temporary Construction Easement. 7. USE OF EASEMENT BY OTHERS: The Grantor understands that Grantee will use contractors or other third parties to carry out the work of the YMCA construction/renovation project and who,therefore,may use some or all of the Easement Property during the term of this Agreement. Grantee agrees to ensure that anyone using the Easement Property will have sufficient competence and must give adequate assurances that any work to be performed in or around the Easement Property shall be conducted in a skillful manner. Grantee's contractors and assignees must also protect the Grantor's interest in the Easement Property to the same extent as if the Grantee was itself performing the construction or maintenance. The Grantee shall be responsible for damages resulting during the term of this Temporary Easement Agreement whether caused in whole or in part by Grantee, its employees,agents,volunteers, contractors, consultants,or others using the Easement Property with the permission of Grantee,or without permission if reasonable steps were not taken to prevent such unauthorized use. 8. DEFAULT: If either Grantor or Grantee reasonably believes that the terms of this Temporary Easement have been breached,then written notification of the alleged breach shall be delivered to the other party. Any party in breach shall have seven(7)days to cure any actual breach. However,Grantor may immediately take any action that it believes is necessary to ensure public safety or imminent damage to Grantor's property,with the cost of such action to be the responsibility of Grantee. 9. EXISTING EASEMENTS: One or more recorded easements may exist which relate to or affect the Easement Property. This Temporary Easement is subject to all existing easements and restrictions of record up to and including the date any such easements are released through a document recorded with the Winnebago County Register of Deeds. 10. 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. 11. 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. 12. 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. 13. 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 immunities and limitations include,but are not limited to, Sections 345.05,893.80,and 893.33, 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. fl ngust 15, 2016 3 a 14. 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. 15. NOTICES: Any notices required by this Agreement 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: Oshkosh Community Young Men's Christian Association c/o Tom Blaze,President/CEO 324 Washington Avenue Oshkosh WI 54901 FOR THE GRANTEE: City of Oshkosh c/o Director of Public Works P,O.Box 1130 Oshkosh,WI 54903-1130 16. AUTHORITY: The Grantor 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 Grantor. Grantee affinns that it has the authority without limitation to enter into this casement agreement.The undersigned asser-t and affirm that they have the authority without limitation to enter into this easement agreement on behalf of the Grantor and Grantee. SIGNATURE PAGE FOLLOWS August 15, 2016 4 N WITNESS WHEREOF, said Grantor has hereunto set their hand and seal the day and year first above written CITY OF OSHKOSH By: ark A.Rohloff,Ci Manager By: t) ��_. Pamela R.Ubrig,City Clerk STATE OF WISCONSIN ) )ss. WINNEBAGO COUNTY ) Personally came before me this ,Z(c - —day of August, 2016, the above named Mark A. Roh�kofy"is{{F����'M R Ubrig of the City of Oshkosh, to me known to be such persons who executed the fore.ir��istruii �atii�,, acknowledged the same, for the purpose herein contained. •' F' ' '• Notary Public,State of Wisconsin _ �.— My Commission expires: 5 j 1, 1 2,02,C) co J jAPVED AS TO OR C,orens City ruey '""m1010,,', IN WITNESS WHEREOF, said Grantee has hereunto set their hand and seal the day and year fust above written. OSHKOSH JIUN.1 NG MEN'S CHRISTIAN ASSOCIATION By: President/CEO STATE OF WISCONSIN } )ss. WNNEBAGO COUNTY } Personally came before me this /"? day of August, 2016, the above named Tom Blaze, of the Oshkosh Community Young Men's Christian Association, to me known to be such e on who executed the foregoing instrument and acknowledged the same,for the purpose herein contain Notary Public, State of tsconsin My Commission expires: P � This instrument drafted by: Attomey David J.Pras€:a Oshkosh,Wl 54903-1130 August 15, 2016 5 1 LEGAL DESCRIPTION: Part of Lot 8, Block 39 of Leach's Map of 1894, being part of the SE114 — NW1/4 of Section 24, Township 18 North, Range 16 East, City of Oshkosh, Winnebago County, Wisconsin, bounded and described as follows: Commencing at the East Quarter Corner of said Section 24; thence South 89°46'58" West, 2419.09 feet; thence North 00°18'23" West, 23.80 feet to the southeast corner of said Block 39; thence South 89034'40" West along the south line of said Block 39, also being the existing north right-of-way line of Washington Avenue, 450.85 feet to the southwest corner of Lot 1 of Winnebago County Certified Survey Map Number 7022, as recorded in the Winnebago County Register of Deeds in Volume 1 of CSMs, Page 7022, as Document# 1700469, the Point of Beginning; Thence continuing South 89034'40" West along the south line of said Block 39, 7.00 feet; thence North 00°30'03" West, parallel with and 7.00 feet (measured at right angles) from the west line of said Lot 1 extended northerly, 232.89 feet; thence North 36°06'35"West, 39.50 feet; thence North 00°30'03" West, parallel with and 36.00 feet (measured at right angles) from the west line of Lot 1, 114.84 feet; thence South 89°38'47" West, parallel with and 2.00 feet (measured at right angles) from the south right-of-way fine of vacated Northwestern Avenue, 73.51 feet; thence North 00°21'13" West, 2.00 feet to said south right-of-way line of vacated Northwestern Avenue; thence North 89038'47" East along said right-of-way line, 109.51 feet to the west line of said Lot 1; thence South 00030'03" East along said lot line, 231.48 feet; thence South 89034'40" West along said lot line, 6.00 feet; thence South 00°30'03" East along said lot line, 150.28 feet to the Point of Beginning; Said parcel contains 0.167 Acres (7,264 Square Feet), more or less. Exhibit . -d-a- Il biturninous 1 1 B � O rk i ! sf , on fire hydrant. sides VACATED NORTHWESTERN _ S�• AVENUE c . y, bitur-hind o. < 1 3 �bitu nirOL s � 1 - C3' f f I SHKOSH COMMUNITY YMCA ARCEL 0400080100 6' 1 ff: 763.52 - pia gro r co cret 0® Cf' 3 r 0, ft ? .55 CITY OF OSHKOSH PARCEL 0400110000 ate z fg3 56 0 F I r p c n t e! -� k ff: 763.58 !STING JYMCA 1 CENTER 0 25' 50' ! I to SCALE: 1" = 50' 0 7' LEGEND – TEMPORARY CONSTRRUCTION I EASEMENT 4 bil --PA PROPERTY LINE ,61 �I I s?/w – RIGHT–OF--WAY LINE playgro d —LASE – EASEMENT LINE - Ils _ —-C�----AWASHINGTON AVENUE —c— —c — — — c— — — — ._G PROJECT NUMBER: 2095-0063.09 PROJECT TITLE: OSHKOSH YMCA DTC ADD,CB,RFI# DATE: 5-2-2016 GR Q SCALE: AS NOTED SHEET TITLE: TEMPORARY EX��b�� 1EF REFERENCE SHEET: CONSTRUCTION EASEMENT EXHIBIT � of c' '