HomeMy WebLinkAbout1000 Pioneer Drive / 03-0210-00001 jam' 1 n�J STORM WATER EASEMENT AGREEMENT
Document �Number Document Title
THIS INDENTURE, made this �6 day of
c , 201% by DECADE'S MONTHLY INCOME
APPRECIATION FUND — A LIMITED PARTNERSHIP,
Granter, and CITY OF OSHKOSH, a municipal corporation,
located in Winnebago County, Wisconsin, Grantee,
WITNESSETH:
PURPOSE: The purpose of this easement is to allow the
City to use the Easement Property described in this
Agreement as part of its public storm water management
system. The City will be replacing an existing storm sewer
outfall located within the Easement Property with a new
storm sewer outfall. The current estimate of the required
size to serve the City's public storm water system needs is
eighty-four (84) inches. This size may change as the City's
public storm water management system needs change. The
easement includes the storm sewer and outfall structure as
well as riprap beyond the end of the outfall, over the
shoreline and into the Lake Winnebago lakebed.
2. EASEMENT: Decade's, its successors and assigns, grants
to the City, its successors and assigns, and the City
accepts, an easement over under and through the Easement
Property subject to the terms described in this Easement
Agreement.
i YII iIIIP�I'IIIIII II I I
DOC# 1764737
NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
04/26/2018 08:58 AM
RECORDING FEE:
PAGES: 8
Area
Name and Return Address
cmhR6E o'Z,4e
City Attorney's Office
P.O. Box 1130
Oshkosh, WI 54903-1130
90302100000
Parcel Identification Number (PIN)
3. CONSIDERATION: The sum of One and NO/ 100 Dollars ($1.00) and other good and valuable
consideration paid by the Grantee, the receipt of which is hereby acknowledged
4. EASEMENT PROPERTY: The property subject to this easement granted herein shall be over, under, and
through a certain parcel of land (`Easement Property") described as follows:
Part of a larger parcel within Section 24 and Section 25, Township 18
North, Range 16 East in the City of Oshkosh, Winnebago County,
Wisconsin, with the Easement Property specifically described as:
See Attached Exhibit A
Street Address: Part of 1000 Pioneer Drive Parcel
ID Number: 90302100000
5. ACCESS RIGHTS: The Grantor's larger overall property within which the Easement Property is located is
used as a marina and vacant land subject to redevelopment. Grantee shall have the reasonable right to access
and use the Easement Property for purposes related to Grantee's storm water management system. Grantor
shall have full right to use the surface of the Easement Property to the extent not inconsistent with this
Agreement. The surface of the Easement Property is currently grass and has not been developed. Grantor
may change the use of the surface to the extent such change: a) is not inconsistent with Grantee's use of the
Easement Property; b) is consistent with all terms of the Municipal Code; and, c) and is approved by any
Board, Commission, or Council that is required to approve such change.
September 14, 2017
6. USE FOR STORM WATER MANAGEMENT SYSTEM: The Grantee will use the easement
for an underground storm sewer and outfall structure, with appurtenances including the
installation of riprap beyond the end of the outfall structure and along the shore and lakebed.
Grantee shall have the right to fully use the Easement Property for these purposes as part of its
storm water management system. The Grantee shall have the right to access, survey, lay,
construct, use, operate, maintain, repair, replace, relocate, and/or remove storm water sewers
and/or storm water drainage facilities. Due to the Easement Property's proximity and
relationship to Lake Winnebago, the City shall be responsible for obtaining all necessary
approvals from the Wisconsin Department of Natural Resources. A map of the Easement
Property is attached as Exhibit B.
7. MAINTENANCE: Grantor shall be responsible for normal and routine maintenance and repair
of the surface of the Easement Property. Grantee shall be responsible for maintaining all storm
water drainage facilities on and within the Easement Property, including the maintenance, repair,
and replacement of all storm water facilities located over, under, and through the Easement
Property. Grantee's responsibilities include grading and seeding grass in areas within the
Easement Property that have been disturbed by the Grantee's use of the Easement Property and
repairing and restoring any damage caused by Grantee to any then existing conditions on the
Easement Property. Grantee shall also regrade and/or repair erosion or other damages resulting
from Grantee's use of the Easement Property.
INTERFERENCE WITH EASEMENT: Grantor, their heirs, agents, or assigns, shall not
interfere in any way with the Grantee's use of the Easement Property, or install or construct any
new structures or improvements, or landscaping other than grass or other surface that is not
inconsistent with Grantee's use of the Easement Property and allowed by the Municipal Code,
within the Easement Property, provided however Grantor shall have full right to use the surface
of the Easement Property to the extent not inconsistent with this Agreement or with the
Municipal Code.. Trees, shrubs, and vegetation other than grass may be removed from the
Easement Property as necessary, at the sole discretion of Grantee, without further compensation
to Grantor. Grantor is not prohibited from performing shoreline improvements and/or
reconstruction provided such efforts do not adversely affect the City's storm water facilities and
provided such efforts are approved by all state and federal governmental entities with
jurisdiction over the shoreline improvements and/or reconstruction to the extent their approval is
required by applicable law. Prohibited new structures or improvements include, but are not
limited to, temporary or permanent building structures, sheds, change in elevations, vegetation
except grass, landscaping or fences. Any change of the surface of the Easement Property will
be allowed to the extend such change: a) is not inconsistent with the Grantee's allowed uses of
the Easement Property; b) is consistent with all terms of the Municipal Code; and, c) is approved
by any Board, Commission, or Council that is required to approve such change.
Notwithstanding the foregoing, the City Board of Public Works may approve additional
landscaping or fencing within the Easement Property, with such approval at the reasonable
discretion of the Board of Public works. Grantor shall promptly remove any objects, materials,
or structures which impede the Grantee's access and/or use of the Easement Property, or limits
the capacity of the Grantee's storm water drainage system. If Grantor fails to remove these
materials or objects within thirty (30) days after written notice from Grantee, Grantee shall have
the authority to remove them at Grantor's expense. In the event of an emergency, the Grantee
shall have the authority to remove any obstruction on and within the Easement Property without
notice to the Grantor. Grantor shall be responsible for the cost of removing such obstruction if it
is caused by Grantor and if the obstruction is not an obstruction allowed by this Agreement and
September 14, 2017
by the Municipal Code.
9. USE OF EASEMENT BY OTHERS: The Grantor agrees that the Grantee may temporarily
assign the access rights identified herein to any contractor, third party, or other assignee that will
be performing work on the Easement Property which the Grantee would otherwise be allowed to
undertake. Grantee shall take reasonable steps to ensure that the other party retains 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 the same extent as if the Grantee was itself performing
the construction and maintenance.
10. DEFAULT: 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.
However, Grantee may immediately remove any object or material which it believes materially
interferes with the design of a storm water management facility within the Easement Property.
11. TERM: This easement is being granted in perpetuity for public purposes and uses, both current
and future, without regard to the Grantee's use of the easement 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 or breach under any of the terms or conditions of this Agreement shall
be construed as a waiver of the right or power. An explicit written waiver by one party of any
obligations of the other party shall not be construed to be a waiver of any other terms or
conditions of this Agreement.
13. INVALIDITY: If any term, condition, or part of this Agreement shall be invalid or
unenforceable, the remainder of this Agreement shall not be affected and each remaining 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 from, 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 immunities and limitations include, but are not
limited to, Sections 345.05, 893.80, and 893.83, 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.
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 Agreement shall be in writing and delivered
September 14, 2017
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:
Decade's Monthly Income and
Appreciation Fund - A Limited Partnership
Attn: Jeff Keierleber
13555 Bishops Court
Suite 345
Brookfield, WI 53005
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 is granted to third parties.
SIGNATURE PAGES FOLLOW
This instrument drafted by:
Attorney David J. Praska
Deputy City Attorney
Oshkosh, WI 54903-1130
September 14, 2017
IN WITNESS WHEREOF, said Grantor and Grantee have hereunto set their hand and seal the
day'and year first above written.
DECADE'S MONTHLY INCOME AND APPRECIATION FUND — A LIMITED PARTNERSHIP
By: DMIAF GP, LLC, General Partner
By: 2 -
Michael Sweet, Secretary
STATE OF W UJC
ss.
COUNTY)
Personally ca%o,bef44
Michael Sweet, thotc�@1bb
and Appreciatiorh•,�hiyd•= A Lin
this 11 day of U 0 0�-(� , 2017, the above named
,JAF GP, LLC, the General Partner of Decade's Monthly Income
F-rtnership, to me known to be such person who executed the
foregoing instrt wt' ar dwl8dgeg th s
• I � z v
P U g�� : co : Not
My
OF
j„0
CITY OF OSHKOSH
By:
Mark . Rohloff, City Manager
By:
Pamela R. Ubrig, City Clerk
STATE OF WISCONSIN)
) ss.
WINNEBAGO COUNTY)
purpose herein contained.
State of W 1 S4-vn5 i
expires: NIP • 041
Personally came before me this At) day of Y ( , 2018, 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.
N tart' Public, Stat4f Wisconsin
My Commission expires: -2-0
APPROVED AS TO FORM:
L A. Lorenson, City Attorney
September 14, 2017
City of Oshkosh
Storm Sewer Easement Description
For East 14th Avenue Storm Sewer Outfall
Commencing at a point that is 1732.69 feet North 89 degrees 56 minutes 7 seconds West of a point
that is both 820.64 feet North O degrees 3 minutes 53 seconds East of the West Quarter Corner of
Section 25, Township 18 North, Range 16 East, and 1853.95 feet South 0 degrees 3 minutes 53 seconds
West of the Northwest Corner of Section 25, Township 18 North, Range 16 East;
thence South 89 degrees 18 minutes 33.40 seconds East for a distance of 43.34 feet;
thence South 45 degrees 29 minutes 57.91 seconds East for a distance of 16.03 feet;
thence North 44 degrees 30 minutes 2.09 seconds East for a distance of 10.00 feet;
thence South 45 degrees 29 minutes 57.91 seconds East for a distance of 35.00 feet;
thence South 44 degrees 30 minutes 2.09 seconds West for a distance of 50.00 feet;
thence North 45 degrees 29 minutes 57.91 seconds West for a distance of 35.00 feet;
thence North 44 degrees 30 minutes 2.09 seconds East for a distance of 10.00 feet;
thence North 45 degrees 29 minutes 57.91 seconds West for a distance of 47.30 feet to the point of
beginning.
EXHIBIT A
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E. 14TH AVE
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STORM SEWER / DRAINAGE EASEMENT
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