HomeMy WebLinkAboutPublic Utility Easement 02-0084-0000 I l III Ilil11 1111111DECLARATION OF 5 0 2 2 5 1
PUBLIC UTILITY EASEMENT Tx:4368298
DOC# 1789511
NATALIE STROHMEYER
Document Number Document Title REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
05/20/2019 09:21 AM
RECORDING FEE:
PAGES: 8
I-2 /
Recording Area
Name and Return Address
City Attorney Office
PO Box 1130 Q ,
Oshkosh WI 3-1130V
90200840000
Parcel Identification Number (PIN)
DECLARATION OF PUBLIC UTILITY EASEMENT
This instrument drafted by:
David J. Praska
Deputy City Attorney
Oshkosh, WI 54903-1130
May 6, 2019 1
DECLARATION OF PUBLIC UTILITY EASEMENT
RECITALS
1. EFFECTIVE DATE. This Declaration is made this 't7 day of May, 2019, by the City
of Oshkosh, a Wisconsin Municipal Corporation(the City or Declarant).
2. PROPERTY. The Declarant is the owner of real property described below(Property):
All of Lots D, E, F, G, H, and I, Block 27 of the Priess Addition lying west of
State Street, except for the southerly seven(7) feet of Lots E, F, and I, and except
for that part of Lot D described as follows: commencing at the southwest corner
of Lit D; thence north along the west line of said Lot D, 35 feet,thence southeast
to a point 32 feet east and seven(7) feet north of the point of beginning ; thence
east parallel and seven(7) feet north of the south line of said lot D to the east line
of Lot D; thence south seven(7) feet along the east line of Lot D to the southeast
corner of Lot D; thence west along the south line of Lot D to the southwest corner
of Lot D which is also the point of beginning, all in the 2nd Ward, City of
Oshkosh, Winnebago County, Wisconsin.
3. DECLARATION. The Declarant hereby declares that, upon the execution and
recording of this Declaration, the Property described above shall, upon such
recording, be held, transferred, sold, conveyed, and occupied subject to a Public
Utility Easement within the Easement Property identified in Exhibit A and according
to the terms described in this Declaration.
4. COMMON PURPOSE. The Declarant hereby states and affirms that the purpose of
this Public Utility Easement is to address the space limitations for placement of
additional utilities within the adjoining rights-of-way and to provide options for
public utilities to repair, replace, enhance, and facilitate the installation and operation
of public utility facilities by providing an alternative location outside of the
Declarant's public right-of-way.
EASEMENT
5. EASEMENT PROPERTY. This Public Utility Easement shall be over, under, and
through certain real property (`Easement Property") described and shown as follows:
See Exhibit A, attached
6. ACCESS RIGHTS. Public Utilities shall have the non-exclusive right to access and
use the Easement Property for all purposes described or referenced in this
Declaration.
7. EASEMENT: The Declarant City of Oshkosh, its successors and assigns, herein
declares, establishes, and reserves for benefit of public utilities a non-exclusive
Easement over, under, and through the Easement Property to construct, repair,
May 6, 2019 2
modify, supplement, maintain, operate and/or remove facilities that are part of the
public utility's business operations.
a. Public utilities shall make all reasonable attempts to ensure that their facilities
within the Easement Property are underground or predominantly underground.
Public utility facilities or equipment may be located above ground only upon the
explicit written approval of the Declarant. Above ground facilities will not be
approved by Declarant unless they are designed and located to minimize
obstruction and interference with the Declarant's use of the Property and the
public's use of the Declarant's Property. Notwithstanding the foregoing, there
shall be no surface or above ground public utility facilities within the western
forty (40) feet of the Easement Property, which is the entire width of Lot D of
Block 27 of the Priess Addition.
b. Declarant may use the Easement Property in any manner it deems necessary or
appropriate to carry out its municipal functions including, without limitations,
placing vegetation, curbing, parking stalls, drive aisles, driveways, and
Declarant's utility services on, over, and in the Easement Property. Declarant's
use of the Easement Property shall not interfere with the safe operation of the
public utilities' facilities, but the use of the Easement Property by the public
utility shall be subject to the use by Declarant. In the event the Property is no
longer owned by the City in the future, a subsequent owner of the property may
use the property for materially similar surface uses but is also subject to the
limitations of use as described herein.
c. All public utilities may use the Easement Property with the understanding that
other public utilities may use the Easement Property in the future. Therefore, all
public utilities shall plan for and install their facilities making the most efficient
use of the space within the Easement Property. The Easement Property shall not
be considered dedicated right-of-way and therefore public utilities shall not have
statutory use of the Easement Property. Instead, the Easement rights are governed
by the terms of this Easement document.
d. Public utilities shall have the right to access, survey, lay, construct, use, operate,
maintain, repair, replace, relocate, and/or remove public utilities and public
facilities.
e. Facilities and equipment within the Easement Property that are abandoned shall
be removed to make room for facilities and equipment of others. Abandoned, for
the purpose of this Easement, shall mean facilities or equipment that is
disconnected from the public utility system and is not intended to be actively used
for the following twelve (12) or more months, or has not been actively used for
the preceding twelve (12) months.
8. SURFACE USE/PUBLIC PARKING LOT: The Public Utility Easement is
currently within one of Declarant's public parking lots. The Declarant may continue
such use or may use the surface for a public parking lot, or for any other lawful use.
Except for emergencies,the public utility shall not block or obstruct parking stalls,
drive aisles, or ingress/egress to/from the Property or the public parking lot without
May 6, 2019 3
prior approval of the Declarant through its Transportation Department and
Department of Public Works. In emergency situations, public utility shall notify
Declarant through its Transportation Department and Department of Public Works as
soon as practicable of any disruption in functioning of the Declarant's parking lot or
Property and thereafter shall work in good faith with the Declarant to minimize
impacts upon the usage of the Declarant's facilities. In non-emergency situations,
public utilities shall provide the Declarant through its Transportation Department and
Department of Public Works, a minimum of fourteen(14) calendar days advance
notice of any work within the Easement Property that is reasonably expected to
impact the Declarant's facilities. Parking spaces and any other area of the parking lot
which are necessary to provide space to undertake maintenance and repairs must be
reserved in advance through the Declarant's Transportation Department, and the
public utility must also obtain a Work in Right of Way License from the City before
commencing non-emergency work. Permission and a Right of Way License must be
obtained prior to any disruption if it is a non-emergency, and as soon as practicable
after the commencement of an emergency. Approved, temporary closures of some
or all of the public parking lot shall not exceed fourteen(14) consecutive days
without specific approval by the Board of Public Works.
9. MAINTENANCE:
a. Public utility shall grade, seed, repair/replace hard surfaces, and otherwise return
the surface of the Easement Property to a condition that is materially the same or
better than the condition prior to any work the public utility performs on the
Easement Property. This work shall be at the public utility's expense.
b. Public utility shall be responsible for maintaining its facilities within the
Easement Property, including maintenance, repair, replacement, or removal when
appropriate. Public utility understands that its Easement is currently within a
public parking lot and agrees to meet all of Declarant's specifications regarding
the repair/replacement of any driveway, parking, and sidewalk surfaces. The
public utility shall be fully responsible for grading and restoring the surface of the
Easement Property to the same or better condition than it was before the
installation. Public utility shall be fully responsible for repairing the Easement
Property to the extent that it is altered or damaged by public utility's use of the
Easement Property. Repairs to the Easement Property must leave it in the same or
better condition than at the time of the repair or maintenance was commenced.
All public utility's responsibilities to act within this Agreement shall be at public
utility's expense.
c. All work within the Easement Property that is performed by or under the direction
of public utility, or their employees, agents, or representatives, shall conform to
all requirements for the City of Oshkosh right-of-way permits, even though it is
understood that this easement does not convey right-of-way benefits, including
the televising of any storm sewer or sanitary sewer lines that are bored across.
d. Declarant shall be responsible for all normal and routine maintenance and repairs
of the surface of the Easement Property. Declarant shall notify public utility and
receive public utility's approval prior to digging or otherwise removing soil and
May 6, 2019 4
other materials to a depth that is more than two (2) feet below the surface
elevation.
e. Public utility is responsible for all damages and injury to persons or property to
the extent caused by public utility's use of the Easement property.
f. The parking lot within which the Easement Property is located is in poor
condition at the time this Declaration is executed and will be reconstructed and/or
replaced by Declarant in the future. The reconstruction/replacement may result in
changes to the surface, which could include installation of vegetation,
landscaping, curbing, and new parking spaces, drive aisles, and driveways. The
public utility is responsible for maintenance, repair, and restoration of the surface
after any disruption or damage caused by the public utilities use of the Easement
Property, regardless of whether the disruption is before or after the parking lot is
reconstructed or replaced. Declarant must approve of the repair and restoration of
the surface and shall evaluate the required restoration of the surface based on the
condition of the surface at the particular time a project is undertaken.
10. INTERFERENCE WITH EASEMENT. Allowed uses of the Easement Property by
both the Declarant and any public utility shall not interfere with the safe and lawful
uses of the Easement Property by the other. Both the Declarant and any public utility
shall use all reasonable efforts to have meaningful discussions and reasonable
resolutions with others regarding appropriate use of the Easement Property.
Prohibited obstructions, by any party, include buildings,poles, fences, or other
objects that interfere with the use of the Easement Property except as otherwise
allowed by this Easement document. Objects or obstructions that interfere with the
allowed use of the Easement Property may be removed and disposed of by the other
party at the expense of the party responsible for the location of the object or
obstruction. The party responsible for the location of the object or obstruction shall
not receive any compensation for the object or obstruction that is removed and
disposed of. When possible,the party responsible for the object or obstruction should
be provided thirty (30) days written notice before removal. In the event of an
emergency, which includes the presence of any potential safety hazard, the Declarant
or public utility shall have the authority for removal without notice.
11. USE OF EASEMENT BY OTHERS. The public utility or Declarant 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 public
utility would otherwise be allowed to undertake. Public utility and Declarant 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 public utility and
Declarant's interest in the Easement Property and the public's use of the Easement
Property shall be protected to the same extent as if the public utility or Declarant was
itself performing the construction and maintenance.
12. DEFAULT. If either the Declarant or a public utility reasonably believes that the
terms of this Declaration of Public Utility Easement have been breached by the other,
then written notification of the alleged breach shall be delivered to the other party.
May 6, 2019 5
Any party in breach shall have sixty (60) days to cure any actual breach. However,
the public utility may immediately remove any object or material which it believes
creates a safety hazard and/or materially interferes with the design and use of the
public utilities within the Easement Property.
13. TERM. This Easement is being granted in perpetuity for purposes and uses of the
current and future public utility systems without regard to a public utility'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 Declarant and public utility, along with their respective
heirs, executors, administrators, successors, assigns, and legal representatives.
14. WAIVER. No delay or omission by a person related to this Declaration of Public
Utility Easement in exercising any right or power arising out of any default or breach
under any of the terms or conditions of this Easement 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 Declaration of Public Utility Easement.
15. INVALIDITY. If any term, condition, or part of this Declaration of Public Utility
Easement shall be invalid or unenforceable, the remainder of this Declaration shall
not be affected and each remaining term and condition shall be valid and enforceable
to the fullest extent permitted by law.
16. NO THIRD PARTY BENEFICIARY. It is not the intention of the Declarant that no
parties other than the Declarant and public utilities using the Easement Property
acquire any rights, to enforce or benefit from, through the specific terms of this
Declaration of Public Utility Easement and, therefore,there shall be no third-party
beneficiaries to this Declaration.
17. MUNICIPAL LIABILITY.Nothing in this Declaration of Public Utility Easement is
intended as a waiver of the Declarant 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 Declaration of Public Utility
Easement and shall govern all disputes, contractual or otherwise, as they apply to the
municipality and its agents, officers, and employees.
18. GOVERNING LAW. This Declaration of Easement shall be construed and enforced
in accordance with the laws of the State of Wisconsin. Venue for any action regarding
this Declaration of Easement 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.
19. NOTICES. Any notices related to this Declaration of Public Utility Easement shall be
in writing and delivered via certified mail,return receipt requested,to the last known
address of the public utility involved and of the Declarant. Changes to these
addresses, shall be in writing. In addition to formal notification, both parties agree to
May 6, 2019 6
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take reasonable measures to keep the other party informed of issues or questions
regarding the Easement Property.
20. AUTHORITY. The Declarant affirms that all necessary boards and elected officials
have approved the acceptance of this Declaration of Public Utility Easement, and that
the undersigned have the authority to sign this Declaration of Public Utility Easement
on behalf of the Declarant.
21. INTERPRETATION. This Declaration should be read and interpreted as a whole.
Each paragraph shall be incorporate and be interpreted consistently with other
paragraphs. Recitals are included in and made part of the terms of this Declaration.
The terms, conditions, and covenants of this Declaration of Public Utility Easement
shall run with the land and be binding upon and inure to the benefit of the Declarant,
its successors,transferees and assigns. The act of using the Easement Property by
any public utility shall act as the consent to all of the terms herein.
22. NO MERGER: It is necessary that the Public Utility Easement benefits and burdens
described in this Agreement remain in effect to ensure continuity of service of public
utility customers and the proper use and functioning of the public facilities and utility
systems. There shall be no merger of any Easement rights with the title or other
interests of any other of the real property interests described herein.
This Declaration is being executed on the day and year first written above.
CITY OF OSHKOSH
Owner of the Property
By:
A. Rohloff, City anager
By:
Pamela R. Ubrig, City lerk
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY )
Personally came before me this a day of May, 2019,the above-named Mark A. Rohloff and
Pamela R. Ubrig, of the City of Oshkosh to me known to be such person(s) who executed the foregoing
document and acknowledged that they executed the s e as such officers by its ority, for the purpose
therein contained.
ublic, S to of Wiscolisipi
My Commission xpires: Y 211,2OL€)
Approve s To Form:
B .
A. Loren ity Attorney
May 6, 2019 7
EXHIBIT "A" FOR PUBLIC UTILITY EASEMENT
LEGAL DESCRIPTION OF PUBLIC UTILITY EASEMENT:
PART OF LOTS D, E, F, G, H, AND I OF "HENRY PRIESS ADDITION TO BLOCK 27" IN L.M. MILLER'S ADDITION, IN
SECTION 24, TOWNSHIP 18 NORTH, RANGE 16 EAST, IN THE SECOND WARD, CITY OF OSHKOSH, WINNEBAGO
COUNTY, WISCONSIN, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT D; THENCE NORTH 89 DEGREES 38 MINUTES 35 SECONDS
EAST 120.00 FEET, ALONG THE SOUTH RIGHT-OF-WAY LINE OF WASHINGTON AVENUE, AND THE NORTH LINE OF
SAID LOTS D, E & F; THENCE SOUTH 24 DEGREES 39 MINUTES 43 SECONDS EAST 113.09 FEET, ALONG THE
WEST RIGHT-OF-WAY LINE OF STATE STREET; THENCE NORTH 89 DEGREES 56 MINUTES 37 SECONDS WEST
11.01 FEET, ALONG THE SOUTH LINE OF LANDS DESCRIBED IN DOCUMENT 882742; THENCE NORTH 24 DEGREES
39 MINUTES 43 SECONDS WEST 102.03 FEET; THENCE SOUTH 89 DEGREES 38 MINUTES 35 SECONDS WEST
113.59 FEET; THENCE NORTH 00 DEGREES 05 MINUTES 51 SECONDS WEST 10.00 FEET, ALONG THE WEST LINE
OF SAID LOT D, TO THE POINT OF BEGINNING.
In.. WASHINGTON AVENUE
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NW COR co
LOT o 2 N89'38'35'E 120.00'
/ R/W LINE
10' WIDE PUBLIC UTILITY EASEMENT
589'38'35"W 113.59'
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PROJECT NO. 181624-7
Exhibit , (.0