HomeMy WebLinkAboutAmended Cross Access Easement Agreement RDA & River Front Senior Apartments LLC 2.2.2018AMENDED
CROSS ACCESS EASEMENT AGREEMENT
Document Number ' Document Title
This Amended Cross Access Easement Agreement (Amended
Agreement) amends and fully replaces the Cross Access Easement
Original Agreement) dated September 28, 2015, and recorded with the
Winnebago County Register of Deeds on October 5, 2015, as Document
Number 1698369.
1. Parties. This Amended Agreement is made thisW day of
Q .��a r , 20116, by and between the City of Oshkosh, a
Wisconsin unicipal Corporation and the Redevelopment
Authority for the City of Oshkosh, a Wisconsin Body Politic
(collectively, City), and River Front Senior Apartments, LLC, a
Wisconsin Limited Liability Company (The Rivers).
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$ Tx:4292267 4
DOC* 1759533
NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
02/02/201$ 09:32 AM
RECORDING FEE 30.00
PAGES: 6
Recording Area 1 5 11 04
Name and Return Address
City Attorney's Office
P O Box 1130
Oshkosh WI 54903-1130
2. Consideration. One dollar ($1.00) and other good and valuable 90102220101
consideration. Each party benefits from enhanced use of their 90102300000
own property through access provided from the other party's Parcel Identification Number (PIN)
adjoining property.
3. Original Easement Agreement. On September 28, 2015, the City of Oshkosh and River Front Senior
Apartments, LLC entered into the Original Agreement which was recorded with the Winnebago
County Register of Deeds on October 5, 2015, as Document Number 1698369. The Original
Agreement allowed shared access by each party through the other party's adjoining property, identified
below as The Rivers Property and the City Property. The Rivers Property included an existing
apartment building, and the City Property was being redeveloped with a new apartment building.
4. Redevelopment Completion. The new apartment building on the City Property is now complete, along
with its associated parking lot. The parties are now able to formalize the specific drive aisles that are
appropriate for cross access to their respective properties. Also, the City has divided through a CSM
the larger parcel identified in the Original Agreement where the new apartment building was
constructed so that the specific parcels subject to the cross access easement can now be identified. The
parties intend for this Amended Agreement to provide a clearer description of each party's rights and
responsibilities.
Original Agreement Replacement. The parties therefore explicitly agree that this Amended Cross
Access Easement Agreement shall replace in its entirety the Cross Access Easement dated September
28, 2015 and recorded with the Winnebago County Register of Deeds on October 5, 2015 as Document
Number 1698639. The parties further agree that this Amended Agreement will govern the parties'
actions going forward, except that liabilities, claims, and defenses arising pursuant to the Original
Agreement shall survive.
6. Division of Properties. The City -owned property identified in the Original Agreement, which was Lot
2 of CSM 6408, was subsequently divided into three (3) parcels and one outlot through CSM 7068.
The parties herein clarify which property this Amended Agreement covers. The properties benefitting
from the Amended Agreement are Lot 1 of CSM 6408 (parcel #90102300000) and Lot 1 of CSM 7068
(parcel #90102220101). The adjoininginearby properties that were formerly part of Lot 2 of CSM
6408 and which are not part of this Amended Agreement are Lot 2 of CSM 7068 (parcel
#90102220201), Lot 3 of CSM 7068 (parcel #90102220300), and Outlot 1 (parcel #90102220400).
7. Both the City and The Rivers offer to each other, and each accepts, a Cross Access Easement over and
across their respective properties identified herein according to the terms described in this Amended
Cross Access Easement Agreement. This Amended Agreement is being executed by the City of
Oshkosh, Redevelopment Authority of the City of Oshkosh, and River Front Senior Apartments, LLC,
as the current owners of their respective properties, for the purposes of ensuring the proper use and
December 11, 2017
maintenance of approved redevelopment plans for their properties which are in a redevelopment area,
and protecting the public investment in the City Property after it is conveyed to private parties.
City Property. The Redevelopment Authority of the City of Oshkosh and the City of Oshkosh are the
owner and/or lessee of the following real property (City Property):
Lot One (1) of CERTIFIED SURVEY MAP NO. 7068
filed in Volume 1 of Certified Survey Maps on Page 7068 on March 28, 2016,
as Document No. 1709684; being part of Lots 1 and 2 of
CSM 5879 in the South 1/2 of the North East 1/4 and the North 1/2
of the South East 1/4 of Section 23, Township 18 North, Range 16
East, First Ward, City of Oshkosh, Winnebago County, Wisconsin.
Commonly known as 475 Marion Road.
The Rivers Property. River Front Senior Apartments, LLC is the owner of the following real property:
Lot One (1) of CERTIFIED SURVEY MAP NO. 6408
filed in Volume 1 of Certified Survey Maps on Page 6408
as Document No. 1520619; being part of Lots 1 and 2 of
CSM 5879 in the South 1/2 of the North East 1/4 and the North 1/2
of the South East 1/4 of Section 23, Township 18 North, Range 16
East, First Ward, City of Oshkosh, Winnebago County, Wisconsin.
Commonly known as 475 Marion Road
10. Cross Access Easement Property. The area of The Rivers Property and the City Property where the
property owners, their tenants, guests, and invitees, will be able to use for ingress and egress will
include the two (2) driveways on The Rivers Property and the one (1) driveway on the City Property,
along with the drive aisles extending across the parties' respective parking lots that are parallel Marion
Road. The Cross Access Easement area is identified in Exhibit A.
11. City Requirement. The new apartment building on the City Property is part of a development
commonly known as the Rivers Phase II — Oshkosh (also occasionally referred to as Rivers 1.5). The
City's approval of this development included a requirement its outdoor parking lot be connected to The
Rivers' parking lot to assist with access to/from public streets, and with proper vehicular circulation
through both developments. Those using The Rivers Property and the City Property shall have full
access to the other party's property's for ingress and egress, and including driveways and drive aisles
identified in Exhibit A which will provide a common benefit to both properties. This Amended
Agreement cannot be modified, released, or cancelled without the written consent of the City.
12. Non-exclusive / Perpetual. The Cross Access Easement rights described in this Amended Agreement
are non-exclusive and shall exist in perpetuity for the purposes of ingress, egress, and circulation
within The Rivers Property and the City Property, and for the ingress and egress between these
properties and adjacent public streets.
13. Maintenance. The rights and obligations for maintaining the common access facilities are described:
a. Each owner of The Rivers Property and the City Property accepts and consents to their obligations
and liabilities described in this Amended Agreement. Each owner agrees to be responsible for the
costs of the maintenance, repair, and replacement of improvements within the Cross Access
Easement Property within their respective properties. The Cross Access Easement Property are
the driveways and drive aisles within the outdoor parking lots as identified in Exhibit A.
b. Each owner's responsibilities may require, at various times and without limitation, the costs of
inspections, surveying, engineering, acquiring permits, legal consultations, recording fees, costs
for the construction, reconstruction, and repairs, including any paving, re -striping, and removal of
snow/ice and debris when necessary.
December 11, 2017 2
c. Maintenance is to be interpreted broadly to include all work necessary to ensure that the
improvements within all areas of common access remain in a good, clean, safe, and serviceable
condition at all times, and includes the prompt removal of snow and ice.
d. The owner of each property is expected to cooperate with each other regarding the improvements
and facilities in the area of common access within their property in the maintenance, repair,
replacement, and snow/ice and debris removal. In the event that a property owner fails to perform
maintenance actions on their property that is required by this Amended Agreement, then each
property owner authorizes and grants to the other property owner the right to enter any part of the
Cross Access Easement Property and take all necessary steps to ensure that work is completed in a
timely, efficient, and reasonable manner. The costs of such action shall be the responsibility of the
property owner failing to perform its required common functions as described in this Amended
Agreement, and payment shall be submitted within thirty (3 0) days of demand. The performance
of work on another's property must be related to a purpose related to easement rights described in
this Amended Agreement, and shall not materially interrupt the use of property unless no other
reasonable alternative exists. Reasonable notice shall be provided prior to undertaking action
subject to this Easement. In the event a property owner fails or refuses to act within a reasonable
time, the remaining property owner(s) may also seek any available legal remedy to enforce the
terms of this Easement.
e. The owner of each property shall make available all paperwork relating to maintenance, repair,
replacement, snow/ice removal, and other work performed within the Cross Access Easement
Property as required by this Amended Agreement and that is the subject of a demand for
reimbursement. Those requesting copies shall be responsible for reasonable costs of copying.
f. Snow and ice shall be removed from the Cross Access Easement Property in a timely and
reasonable manner. Snow and ice may be removed from the Cross Access Easement Property and
moved into adjacent areas of that parcel provided the property owner consents, and the snow
storage does not interfere with the use of the Cross Access Easement property, and the storage
does not violate any state or local rules. The owner of property removing snow and ice from the
adjoining property when the other owner fails to do so shall not be obligated to remove snow and
ice from the other parcel, but may instead simply remove the snow and ice from the Cross Access
Easement Property. If areas are not available for snow storage, then the snow removed from the
Cross Access Easement Property shall be removed completely from that parcel.
14. Responsibility for Damage. Each property owner is responsible for any damage to the Cross Access
Easement Property to the extent caused by the negligent or willful acts of that property owner or other
persons otherwise using the Cross Access Easement Property in a manner consistent with the terms of
this Amended Agreement. This responsibility includes, without limitation, damages to persons or
property to the extent caused by persons or property. All such damage shall be promptly repaired by
the responsible property owner without charge to the other property owners. The terms of this
paragraph or this Amended Agreement shall not limit actions, including subrogation claims, against
third parties.
15. Indemnity. Each party to this Agreement who exercises rights under the easement granted by this
Agreement (the Dominant Owner) over the lands owned by the other party (the Servient Owner) shall
indemnify and defend the Servient Owner and its officers, agents, and employees from all liability,
suits, actions, claims, costs, damages, and expenses of every kind and description, including court costs
and legal fees, for claims of any character, including liability and expenses in connection with the loss
of life, personal injury, or damage to property, brought because of any injuries or damages received or
sustained by any person, persons, or property on account of or arising out of the use of the Servient
Owner's property (the Servient Property) by the Dominant Owner or its agents, contractors,
subcontractors, invitees, or employees.
16. No Public Dedication. Nothing in this Agreement shall be deemed to be a gift or dedication of any
portion of the easements granted under this Agreement to the general public or for any public purpose
whatsoever. The owner of the City Property and the owner of The Rivers Property agree to cooperate
with each other and to take such measures as may be necessary to prevent the dedication to the public
December 11, 2017
of the Cross Access Easement area, whether by express grant, implication, or prescription. These
measures may include, without limitation, the posting of "Private Road," "No Through Traffic," or "No
Trespassing" signs. Such measures shall not, however, unreasonably interfere with the easement rights
granted under this Agreement.
17. Insurance. Each property owner shall secure and at all times maintain a policy of public liability
insurance with an aggregate policy limit of not less than one million and no/100 dollars
($1,000,000.00) providing primary liability coverage for the owner's portion of the Cross Access
Easement Property and the owner's use of the Cross Access Easement Property.
18. Obligation to Act Reasonably. Each property owner shall exercise the rights granted in this Amended
Agreement in a reasonable manner and shall avoid any unreasonable or unnecessary interference with
the use of the Cross Access Easement Property by the other property owners, or tenants, customers, or
other guests or invitees of other property owners. The owner of each property shall be obligated to
take such actions as may be reasonable necessary to prevent the parking of vehicles or the placement
of other temporary or permanent obstructions in the Cross Access Easement Property.
19. No Obstructions. No property owner shall construct or install any structure or improvement, or cause
or permit the construction or installation of any structures or improvement, on their property that
would have a material adverse effect on the allowed use of the Cross Access Easement Property.
20. Amendments. This Amended Agreement and the rights and obligations associated with the Cross
Access Easement Property may require amendment(s) and modification(s) based upon the City -
approved future development of the properties, and/or the change in local, state, or federal laws. All
property owners agree to sign all amended documents or amendments to this document that are
necessary to carry out the approved plans and/or changes in local, state, or federal laws. This
Amended Agreement may also be modified or amended for reasons not involving the future
development of the any property upon the written consent of all property owners and the City of
Oshkosh. Future amended agreements, or amendments to this Amended Agreement, shall be promptly
record with the Winnebago County Register of Deeds.
21. Term. The easement terms, conditions, and covenants of this Amended Agreement shall be perpetual
in term and shall run with the land and be binding upon and inure to the benefit of the owners of The
Rivers Property and the City Property, and their respective successors, transferees and assigns.
22. Choice of Law. This Amended Agreement shall be interpreted according to Wisconsin Law. Venue of
any dispute regarding this Easement shall be Winnebago County, Wisconsin or in a federal court
district serving Winnebago County, Wisconsin.
SIGNATURE PAGE FOLLOWS
December 11, 2017 4
This Amended Cross Access Easement Agreement is being executed on the day and year first written above.
REDEVELOPMENT AUTHORITY OF CITY OF OSHKOSH
Owner of the City Property ,.
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By:
Steven 4. Cu ings, Chair
By: 4,Gr
H. Allen Davis, III, Executive Director
4 -
The signature of Steven J. Cummings authentica a this q -Nay o �Lt "(q 2 -Q -f 170
The signature of H. Allen Davis, III, authenticate his ay of "Vr'a—az.
CITY OF OSHKOSH
Owner of theCityProperty
By:
k A. Rohloff, City Mller,
er
By: l
Pamela R. Ubrig, City Cie lJ
The signature of Mark A. Rohloff authenticated th' ay o g
The signature of Pamela R. Ubrig authenticated t s ay of AU ,�A l� � 0 1g,
RIVERFRONT SENIOR APARTMENTS, LLC
Owner of The Rivers
By:
Andrew J. Dumke, Managing Member
SI- If- 'W8
The signature of Andrew J. Dumkeahel•this 3L day of Qom+ ,;8f'%
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This instrument drafted by:
Attorney David J. Praska
Oshkosh, WI 54903-1130
December 11, 2017
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Rivers Development RIVERS DEVELOPMENT ���f11
City of Oshkosh
Oshkosh, Wisconsin
Project No.:60305456 2017-10-26 Exhibit—L
FIGURE 1