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HomeMy WebLinkAboutEasement Agreement/Kieckhafer lZ.%0 III IIIIII 8 3 Tx:426 4263 519 95 3 1 Access Easement 1745910 I REGISTER'S OFFICE DocumentNumber Document Title WINNEBAGO COUNTY, WX RECORDED ON FIIS AGREEMENT ("Easement Agreement") is made this Al—"_day 01 08/04/2017 8:33 AM 2017, By and between the City of Oshkosh("City"), Grantor, and PriscIlla D. Kieckhafer, Trustee of the Harry E. and Priscilla D. Kieckhafer NATALIE STROHMEYER Revocable Trust of 1991 u/a/d December 10, 1991("Kieckhafer"),Grantee: REGTSTER OF DEEDS IN CONSIDERATION of the sum of One Dollar($1.00)and other good RECORDING FEE 30.00 and valuable consideration paid by Kieckhafer,the receipt of which is hereby PAGES. 7 Recording Area acknowledged,the City does hereby give and grant unto the Kleckhafer,its successors and assigns,and Kieckhafer accepts,a non-exclusive access casement Name and Return Address City Attorney's Office over,under,and through the Grantor's Property as hereinafter described, P.O.Box 1130 1, EASEMENT PURPOSE: The purpose of this Easement Agreement is Oshkosh,W1 54903-1130 to allow Kieckhafer the right to cross certain City property for the C V46 024 purpose of accessing and using parking spaces located at the rear of 90200620000 a building on Kieckhafer's adjoining property. 90200640000 Parcel Identification Number (PIN) 2. GRANTEE PROPERTY. Kieckhafer owns property commonly known as 300 and 302 State Street,tax parcel 902006400,at the northeast coiner of State Street and Waugoo Avenue("Grantee's Property"), An early 201 Century-era multi-story office building is located on Kieckhafer's property, The office building ends at the lot lines on the north,south,and west sides. The office building does not reach the east lot line,and as a result that extra space is used for parking for office building tenants,residents,and invitees. Those parking at the office building have,in the past,accessed those spaces via the adjoining City public parking lot. 3 GRANTOR'S PROPERTY:The City owns property that for many years has been used as a public parking lot and generally has been refeff ed to as the State Street Parking Lot. The City property,tax parcel 90200620000,borders Waugoo Avenue on its southern border and State Street on part of its western border. The easement benefits and burdens granted by this Agreement will be located on a relatively small part of the City property. The City property is more particularly described as("Grantor's Property"): Located in the City of Oshkosh,Winnebago County,Wisconsin, and originally part of Fractional Lot I of Section 24,Township 18 North of Range 16 East,and more particularly described: All of Lots one(1)and Two(2),the Easterly 60 feet of Lot Three(3),all of Lot Four(4),and the Westerly 29.2 feet of Lot Five(5),all on Block Twenty-six(26) of L.M.Miller's First Addition,2n'Ward,City of Oshkosh; And Lot"C"in Papendeik's Plat,in the 2`1 Ward,City of Oshkosh,per Leach's Map of 1894,originally being a part of Fractional Government Lot 2,Section 24 Township 18 North,Range 16 East. 4. EASEMENT PROPERTY. The"Easement Property"subject to this Easement Agreement is a forty-foot (40 1)by thirty-foot(30 ft.)section of the Grantor's Property adjoining the eastern boundary of Grantee's Property,A map to be used for locational reference only of the Easement Property is attached as Exhibit A The Easement Property is more particularly described in the attached Exhibit B. April 28, 2017 1 5. EASEMENT: A non-exclusive access easement,solely for ingress and egress, is granted by the City,and accepted by Kieckhafer, over and through the property identified in this Easement Agreement as the Easement Property("Access Easement"). 6. NON-EXCLUSIVITY:Kieckhafer's use of the Easement Property is non-exclusive. The surface of the Easement Property is currently used by the City as part of its public parking lot. It is anticipated that the City will convey part of Grantor's Property to private parties,and further anticipate that the Easement Property will be used as part of a private parking lot,including drive aisles or other features of the private parking lot. Kieckhafer accepts this Easement subject to the continued active use of the Easement Property surface as long as the ability for ingress and egress is reasonably maintained. The City or its successor interest may install additional or new utilities or facilities necessary to serve the Grantor's Property or adjoining property in,over,or across,the Easement Property. The City, or its successor,may allow other public utilities to locate within the Easement Property. All parties agree to work in good faith to resolve issues regarding the safe and efficient use of the Easement Property by the parties or others wishing to also utilize the Easement Property. 7. EASEMENT RIGHTS/LIMITATIONS: Grantor grants,and Grantee accepts,the non-exclusive Access Easement over and through the Easement Property. The rights and limitations of the Access Easement are as follows: a. The Easement Property may only be used for ingress and egress to allow vehicular access to parking spaces on Kieckhafer's adjoining property,PIN 90200640000. As noted in the Easement Property legal description and the location map,ingress and egress is limited to Waugoo Avenue, as direct access to State Street will no longer be available. Access through the Easement Property is limited to those renting, leasing,using,or invited to use, the building on Grantee's property. The City and any successor in interest seeks to limit the impact on the surface of the Easement Property,as well as ensure that vehicles are able to safely back,turn,and maneuver within identified Easement Property. To that end,vehicles using the Easement Property for access are limited to motorcycles and those requiring a Class D driver's license. For purposes of illustration only,most automobiles and pickup trucks would be allowed access,but vehicles requiring a commercial driver's license, trailers,and construction equipment,would not be allowed to utilize the Easement Property for access to the Kieckhafer property b. Kieckhafer's use of the Easement Property is for surface access only,and shall not be used for parking(short or long term), storage,or any other similar use. c. Kieckhafer accepts the Easement Property as-is. The condition of the Easement Property as well as all maintenance,repair, and replacement shall be at the sole and exclusive discretion of the Grantor. Grantor, however,agrees to act in good faith and in a reasonable manner. 8. MAINTENANCE: Except as otherwise described in this Agreement,Grantor is responsible,at its sole and exclusive discretion, for maintaining the surface and for repairing normal wear and tear of the surface. Grantor and Grantee shall be responsible,at their own expense,for repairing specific damages caused in whole or in part by their respective use of the Easement Property. a. In general terms, Grantor is responsible for routine maintenance,repair, and replacement of its property, including the surface of the Easement Property and any of its facilities below the surface. Examples of routine surface maintenance include care of hard surfaces,snow and ice removal,striping,and landscaping which may include grass,trees,shrubs, and other vegetation. Grantor will be responsible for repairs and replacement provided such actions are not required because of specific actions resulting from Grantee's use of the Easement Property. b. Grantor shall have the right to close or limit access to the Easement Property for purposes related to maintenance,repairs, or replacement of improvements over,under,and through the Easement Property. Such closures or limitations shall occur at the discretion of the Grantor. Grantor shall make reasonable efforts to notify the Grantee of such upcoming actions to allow Grantee to make alternative parking arrangements. Grantor agrees to undertake actions that close or limit access to the Easement Property in a reasonable manner. Such closure or limitations shall not entitle Grantee to compensation for inconvenience,disruptions,or other damage or loss. April 28, 2017 2 c. Grantee shall be responsible for the cost of repairing or replacing any damage to its own property,or those it authorized to use the Access Easement,the Grantor's facilities,including without limitation landscaping,storm water drainage features and facilities,electrical,sanitary sewer,or any other Grantor facility,which is damaged or altered to the extent caused by Grantee's use of the Easement Property. d. Grantee shall hold harmless and fully indemnify Grantor for damage to the facilities owned,operated,or used by third-parties to the extent caused by Grantee and/or resulting from Grantee's use of the Easement Property. 9. USE OF EASEMENT BY OTHERS: The Grantee agrees that the Grantor may temporarily assign the access and maintenance rights identified herein to a third party,or other person. Assignees must demonstrate to the Grantor that they 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. Assignees must also protect the Grantor's interest in the Easement Property to the same extent as if the Grantor was itself performing the construction or maintenance. Grantee and Grantor are responsible to the other for damages caused by their respective employees,agents,and contractors. 10. INDEMNIFICATION: The owners and users of the Grantee's Property shall indemnify and hold harmless the owners of the Grantor Property from and against all loss,costs(including reasonable attorney fees),resulting from injury,death,or damages to person or property that occurs at any time during the term of this Easement Agreement which may be suffered or sustained by any person or entity in connection with the activities of the owners and users of Grantee's Property which are conducted on Grantor's Property,regardless of the cause of the injury,except to the extent caused by the negligence or misconduct of the owners of the Grantor's Property,their agents, servants,or employees. 11. INSURANCE: Grantee,and for any other party who exercises rights through Grantee and under the easements granted by this Agreement(collectively with Grantor,the"Grantee Parties"),shall maintain in effect at all times during the term of this Agreement a policy of commercial general liability insurance naming Grantor and any other party designated by Grantor as the insured,with a minimum limit amount of$1,000,000,to insure against injury to property,person, or loss of life arising out of the Grantee Parties'use,occupancy,or maintenance of the easement in favor of the Grantee Parties or the Grantor's estate with limits of coverage that are at levels customarily maintained by businesses in the community in which the Grantor's Property is located. For each year in which this easement is in effect,the Grantee Parties shall provide the Grantor and the other parties designated by the Grantor with a copy of the insurance policy endorsement or wording showing that the Grantor and the other parties have been added as additional insureds. The policy shall contain a supplemental endorsement covering contractual liability voluntarily assumed by the insured under this Agreement. Insurance required of the Grantee Parties under this Agreement shall be written by companies duly qualified to do business in the State of Wisconsin and shall be satisfactory in all reasonable respects to the Grantor and the holder of any mortgage against the Grantor's Property. The Grantee Parties shall deliver to Grantor copies of the policies or certificates evidencing the existence and amounts of the insurance with loss payable clauses reasonably satisfactory to the Grantor. No such policy shall be cancelable or subject to reduction of coverage or modification except after 30 days'prior written notice to Grantor. At least 30 days before the expiration of the Grantee Parties'policies,the Grantee Parties shall furnish Grantor with renewals or binders of the policies,or the Grantor may order such insurance and charge the cost to the Grantee Parties. The Grantee Parties shall not do or permit anything to be done that will invalidate the insurance policies furnished by the Grantee Parties. The Grantor may from time to time require that the policy limits of any or all such insurance be increased to reflect the effects of inflation and changes in normal commercial insurance practices. 12. DEFAULT: Except for emergency circumstances, if either Grantor or Grantee reasonably believes that the terms of this Easement Agreement have been breached,then written notification of the alleged breach shall be delivered to the other party. Any party in breach shall have sixty(60)days to cure any actual breach. In emergency circumstances, either party may immediately take all necessary actions to protect the safety and functioning of its facilities within the Easement Property. 13. TERM: This Easement Agreement shall be perpetual,shall run with the land,and shall provide benefits and burdens upon the parties' successors and assigns. This document shall be recorded with the Winnebago County Register of Deeds at Grantee's expense. 14. EXISTING EASEMENTS: As described in this Easement Agreement,the Easement Property is or will be subject to other easements and uses by Grantor and by third-parties. April 28, 2017 3 15. WAIVER: No delay or omission by any party to this Easement Agreement in exercising any right or authority related to a term or condition of this Easement Agreement shall be construed as a waiver of that right or authority. However,the notice and opportunity to cure provisions in paragraph 9,above,shall remain a prerequisite to making a claim of default against the other party. 16. INVALIDITY: If any term or condition of this Easement Agreement shall be held invalid or unenforceable by a court of competent jurisdiction,then the remainder of this Easement Agreement shall continue to be valid and enforceable to the fullest extent permitted by law. 17. NO THIRD PARTY BENEFICIARY: The terms of this Easement Agreement are for the benefit of the parties identified,and it is not the intention of either the Grantor or Grantee that other persons or parties shall acquire any rights to enforce or benefit from through this Access Easement. 18. MUNICIPAL LIABILITY: Grantor incorporates into this Easement Agreement and relies upon its municipal limitations and immunities contained within Wisconsin law. Grantor's municipal immunities and limitations incorporated include,but are not limited to, Sections 345.05, 893.80,and 893.83,Wisconsin Statutes. Except for actual physical damage to Grantee's facilities in the Easement Property,the aforementioned damage limits,caps and immunities shall be used to govern all disputes,contractual or otherwise,as they apply to the municipality and its agents, officers, and employees. 19. GOVERNING LAW: This Easement Agreement shall be construed and enforced in accordance with the laws of the State of Wisconsin. Venue for any action regarding this Easement 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. 20. NOTICES: Any notices required by this Easement 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: City of Oshkosh c/o Director of Public Works 215 Church Avenue Oshkosh,WI 54902 FOR THE GRANTEE: Priscilla D.Kieckhafer,Trustee 702 East Irving Avenue Oshkosh,WI 54901 21. AUTHORITY: The Grantee affirms that all approvals for this Easement Agreement necessary according to its structure have been obtained and have approved the acceptance of this Easement,and that the undersigned have the authority to sign this Easement Agreement on behalf of the Grantee. Grantor affirms that all necessary boards and elected officials have approved the granting of this Access Easement,and that the undersigned have the authority without limitation to enter into this Easement Agreement.The undersigned assert 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 This instrument drafted by: Attorney David J.Praska Oshkosh,WI 54903-1130 April 28, 2017 4 IN WITNESS WHEREOF, said Grantor and Grantee have hereunto set their hand and seal the day and year first above written. GRANTOR: CITY OF OSHKOSH By: --Mfiwrl A. Rohloff,City Ma er By: Pamela R. U brig,City Cle STATE OF WISCONSIN )ss. WINNEBAGO COUNTY Personally came before me this—W day of2017,the above named Mark A. Robloff and Pamela R. Ubrig of the City of Oshkosh,to me known to be such pers�o—sw­hoexecuted the foregoing instrument and acknowledged the same,for the purpose herein contained. Notary Publi , State of Wi s on in �Q& My Commission expires: APP VED AS '0 FQ� T 0 City t y A" ,At "�L—yj=m, orenson, Ci Att, y GRANTEE: PRISCILLA D. KIECKHAFER, TRUSTEE OF THE HARRY E. AND PRISCILLA D. KIECKHAFER REVOCABLE TRUST OF 1991 u/a/d DECEMBER 10, 1991, By: Priscilla D.KlLeckhafe�rrustce STATE OF WISCONSIN ) )ss. I)TI q 116hW, COUNTY j Personally came before me this a-�4dav of 2017, the above named Priscilla D. Kieckhafer, 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 1 isc nsin) My Commission expires: April 28, 2017 5 t r � a 3 fif' a IN NT r _ —x r iri { NT U 3e , r. Y # , may. .,..•. -c. 4 in—0.01 min The City of Oshkosh creates and maintains GIS maps and data for its own use, They may show the �Itr approximate relative location of property,boundaries and other feature from a variety of sources. Printing Date:3/30!2017 r�` These map(s)/datasets are provided for information purposes only and may not be sufficient or appropriate for legal, engineering, or surveying purposes. They are provided "AS-IS"without Prepared by:City of Oshkosh,WI Oshkosh warranties of any kind and the City of Oshkosh assumes no liability for use or misuse. JAG!StPlanninglPlan Commission Site Plan,Map TemplateRan Commission Site Plan Map Template.mxd �, I ! Use:-deborahf EXHIBIT B CROSS ACCESS EASEMENT FOR 300 STATE STREET PART OF LOT 3 OF BLOCK 26 OF L.M. MILLER'S FIRST ADDITION IN THE SECOND WARD, LOCATED IN THE NORTHEAST '/4 OF THE SOUTHWEST 1/40F SECTION 24, TOWNSHIP 18 NORTH, RANGE 16 EAST, CITY OF OSHKOSH, WINNEBAGO COUNTY WISCONSIN, BOUNDED AND DESCRIBED AS FOLLOWS: COMMENCING FROM THE SOUTHWEST CORNER OF LOT 3, BLOCK 26 OF L.M. MILLER'S FIRST ADDITION; THENCE S76°35'1 6"E, 100.00 FEET ALONG THE SOUTH LINE OF SAID LOT 3 TO THE POINT OF BEGINNING; THENCE CONTINUING S76°35'16"E, 30.00 FEET ALONG THE SOUTH LINE OF SAID LOT 3; THENCE N13024'44"E, 40.00 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3; THENCE N76°35'1 6"W, 3 0.00 FEET ALONG THE NORTH LINE OF SAID LOT 3; THENCE S13024'44"W, 40.00 FEET TO THE POINT OF BEGINNING. SAID AREA CONTAINS 1,200 SQUARE FEET OR 0.028 ACRES, MORE OR LESS.