HomeMy WebLinkAboutPedestrian Access Easement Caseys Meadow 4th Edition . IHI 11111111111
I I I
Tx:4379340
Pedestrian Access Easement 8 5 1 6 9 3 0
DOC# 1793583
NATALIE STROHMEYER
REGISTER OF DEEDS
Document Number Document Title WINNEBAGO COUNTY, WI
RECORDED ON:
THIS INDENTURE,made this / day of kiroll ,2019,
07/11/2019 10:20 AM
by CASEYS MEADOW, LLC., a Wisconsin Limited Liability Company, Grantor. RECORDING FEE:
and the CITY OF OSHKOSH, a municipal corporation, Grantee, located it PAGES: 6
Winnebago County,Wisconsin.
IN CONSIDERATION of the sum of One Dollar($1.00)and other good and I I '
valuable consideration paid by the Grantee,the receipt of which is
hereby acknowledged,the Grantor, its successors and assigns,does hereby give
and grant unto the Grantee,its successors and assigns,and Grantee accepts,a
Pedestrian Access Easement over and through the Easement Property through Re rain Area „ 1_
recording of the Fourth Addition to Casey's Meadow South subdivision Plat as a e an chi
City Attorneys Office -�'
recorded and as more fully described in this Agreement.
P.O.Box 1130
Oshkosh,WI 54903-1130
1. PURPOSE: The Easement Property described in this Agreement shall be
used for public purposes benefitting Grantor's Property,neighboring 913-3600-01-02
properties,and the public's use of City parks and recreation trails. This 913-3600-99-00
Easement is one of several Easements associated with the Grantor's Parcel Identification Number (PIN)
development of the Fourth Addition to Casey's Meadow South subdivision. This Pedestrian
Access Easement will allow public access across and through the recreational trail to be
constructed by the Grantor and maintained by Grantee. All of the subdivision easements are
identified on the recorded Plat. Due to the unique nature of the Pedestrian Access Easement,this
particular Agreement is separately entered into and recorded to more fully describe the benefits
and obligations.
2. GRANTOR PROPERTY: The Easement Property described herein is contained within two(2)
lots of a larger Property being developed as the Fourth Addition to Casey's Meadow South Plat,
which is located in the City of Oshkosh, Winnebago County, Wisconsin,and more particularly
described:
Lots 79 and 80 of the Fourth Addition to Casey's Meadow South,recorded
with the Winnebago County Register of Deeds on the 3(sfday of May ,
2019,as Document Number I790388 ,all of which is located in part of
the Southwest `/4 of Section 29,Township 18 North,Range 16 East,of the City
of Oshkosh,Winnebago County,Wisconsin.
3. EASEMENT PROPERTY: The Twenty(20)foot Pedestrian Access Easement granted in this
Agreement shall be over,under, and through Grantor's Property situated in the City of Oshkosh,
Winnebago County, Wisconsin,and more particularly described as follows(Easement Property):
An area with an uniform width of ten(10)feet along and adjacent to the entire
western property line of Lot 79,and an area with an uniform width of ten(10)feet
along and adjacent to the entire eastern property line of Lot 80 of the Fourth Addition
to Casey's Meadow South,recorded with the Winnebago County Register of Deeds
on the 31s+ day of M k( ,2019,as Document Number 1710 388 _,all
of which is located in part of the Southwest'/4 of Section 29,Township 18 North,
Range 16 East,of the City of Oshkosh,Winnebago County,Wisconsin.
February 28, 2019 1
4. MAP: A map reflecting the location of the twenty(20)foot Pedestrian Access Easement granted with the
recording of the Fourth Addition to Casey's Meadow South Plan,with terms more fully described in this
Agreement,is attached as Exhibit A and is fully incorporated in this Agreement.
5. ACCESS RIGHTS: Grantee shall have the right to access and use the Easement Property for any purpose
related to its Pedestrian Access Easement including,without limitation, inspections,maintenance, and
repairs. Grantee may access the Easement Property from adjoining City-owned property,public rights
—of-way,or other Easements.
6. USE FOR PEDESTRIAN ACCESS: The Grantor agrees to build and install a ten(10)foot wide Asphalt
Recreational Trail within the Easement Property consistent with the plans approved by Grantee. The
recreational trail will connect with the public sidewalks in the Casey Trail right-of-way on the north,and
connect with City property that will eventually be linked to Rusch Park on the south. Grantor agrees to
allow the public to travel across the recreational trail and within and through the Easement Property for all
lawful purposes. Although the initial recreation trail will be asphalt,the Grantee reserves the right to
change the trail surface at Grantee's sole discretion and expense,and which may include,without
limitation,concrete or something other than a hard-surfaced material. Grantee may enter and use the
Easement Property for all lawful purposes. It is mutually understood and agreed that this Recreation Trail
is not a sidewalk as that term is used in State Statute and/or the City's Municipal Code.
7. CONSTRUCTION/MAINTENANCE: Initial construction and subsequent maintenance of the Asphalt
Recreation Trail and the Pedestrian Access Easement shall be as follows:
a. Grantor shall construct the ten(10)foot Asphalt Recreation Trail during the installation of public
facilities when developing the Fourth Addition to Casey's Meadow South,as more fully described in
the parties' Development Agreement. Initial construction shall be three(3)inches of asphalt over six
(6)inches of crushed aggregate base course. At the time of initial construction of the trail,Grantor
shall thereafter grade and restore the Easement Property according to the Grantee's approved plans.
Restoration shall include grading,placement of six(6)inches of topsoil,seeding, fertilizing,and
erosion mat.
b. After the initial trail construction,surface restoration,and any applicable warranty period,Grantee
shall be responsible for maintaining,repairing,and replacing the Asphalt Recreation Trail or any
subsequently installed trail within the Easement Property. Grantee is responsible for any grading and
seeding any surface that is disturbed through the Grantee's acts of maintaining,repairing,and
replacing the trail. Grantee will be responsible for snow and ice removal from the Asphalt Recreation
Trail according to City policies related to such snow and ice removal for recreation trails. Grantee
reserves the right to install,at any time and at Grantee's sole discretion,a split rail fence or similar
type of fence anywhere within the Easement Property including,without limitation,along the
boundaries of the Easement Property. Grantee shall remain responsible for reasonably maintaining a
split rail or other fence that it may install within the Easement Property.
c. Grantor shall be responsible maintenance and repairs of all other parts of the Easement Property,
which will generally be comprised of ensuring that the Easement Property has full grass coverage
over areas not covered by asphalt,mowing and weed removal,and other lawn maintenance and
repair. Grantor shall retain its obligation to maintain the surface of the Easement Property through
mowing,weed removal,and other lawn maintenance and repair even in the event the Grantee installs
a split rail or other type of fence within the Easement Property. Grantor shall be responsible for
necessary repairs to the surface or recreation trail and to the Easement Property surface to the extent
such repairs are caused by the actions of Grantor,or their agents or assigns. In the event Grantor fails
or refuses to undertake necessary maintenance,Grantee may undertake the same and shall be fully
reimbursed by the Grantor responsible of inaction.
8. INTERFERENCE WITH EASEMENT: Grantor,its heirs,agents,or assigns, shall not interfere with the
February 28, 2019 2
Grantee's use of the Easement Property for public recreation trail purposes. Grantor shall not install or
construct any new or additional structures, improvements,or landscaping within the Easement Property.
Grantor shall not place,pile,or move snow or ice on the Easement Property. Prohibited new changes,
structures, or improvements include,but are not limited to,temporary or permanent building structures,
parking areas,sheds,change in elevations,vegetation except grass,landscaping or fences unless otherwise
approved in writing by the Grantee. Grantee may approve of such improvements,but has no obligation to
approve any requested improvement. Grantor shall promptly remove any objects,materials,or structures
which are not approved,or which impede the Grantee's access and/or use of the Easement Property,or
which limit the capacity of the swale. If Grantor fails to remove these materials or any obstruction,
Grantee may remove them at Grantor's expense.
9. USE OF EASEMENT BY OTHERS: The Grantor agrees that the Grantee may temporarily assign its
rights identified herein to any contractor,third party,or other person. Assignees must demonstrate to the
Grantee 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 Grantee was itself
performing the activity.
10. DEFAULT: If either Grantor or Grantee reasonably believes that the terms of this Easement 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 or, if the breach cannot reasonably be cured
within the 60-day period,take appropriate steps to materially comply with the parry's obligation to cure.
Notwithstanding the foregoing,the Grantee is entitled to ensure the continuous proper functioning of its
public recreation trail facilities without waiting sixty(60)days. Grantee may use its discretion to evaluate
any necessary maintenance and/or repairs,or any interference with a permitted use of the Easement
Property,and take any immediate reasonable action without notice to ensure the proper functioning of the
public recreation trail facilities. All costs and expenses incurred under such circumstances due to
Grantor's breach or negligence shall be reimbursed by Grantor to Grantee within sixty(60)days of receipt
of a bill for the same.
11. TERM: This Easement it being granted in perpetuity for public purposes and uses,both current and
future,without regard to the Grantee's use of the Easement Property 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 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.
13. 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.
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 bring any action based on this Agreement. For clarity purposes,the public access and
other benefits that may arise through the potential use of a recreation trail within the Easement Property
would be the result of the Grantee's recreation policies,and are not considered a beneficiary of this
Agreement.
February 28, 2019 3
15. MUNICIPAL LIABILITY: Nothing in this Agreement is intended as a waiver of the municipality's right
or opportunity to rely upon or use 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
applied,and are incorporated into this agreement and shall govern all disputes regardless of the underlying
theory for relief,whether contractual or otherwise, as they relate to the municipality and its agents,
officers,and employees.
16. FORCE MAJEURE: Neither Grantor nor Grantee shall be in default under this Agreement if its failure to
perform is caused by any of the following events:act of God; fire;flood; severe storm;power outages;
material shortages or unavailability or other delay in undertaking their responsibilities identified in this
Agreement that do not result from the parties failure to maintain their property or facilities. In order to
claim relief under this Section,the other party must be notified in writing of the existence of the event
relied upon and the expected cessation or termination of that event. For the duration of any valid Force
Majeure event as defined by this Section,the affected party's performance shall be excused. However,the
affected party is still required to take appropriate means to minimize or remove the event causing Force
Majeure and,within the shortest possible time,attempt to resume performance of the obligation affected
by the event of Force Majeure.
17. 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.
18. NOTICES: Grantee shall not be required to provide notice prior to exercising any rights pursuant to the
Easement Property and this Agreement,except that Grantee will provide the on-site manager with advance
notice of significant work to be performed within the Easement Property provided no emergency exists.
Any notices related to a breach of 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:
Casey's Meadow,LLC
c/o Chet Wesenberg
240 Algoma Blvd, Suite A
Oshkosh,WI 53901
FOR THE GRANTEE:
City of Oshkosh
c/o Parks Director
P.O. Box 1130
Oshkosh,WI 54903-1130
19. AUTHORITY: The Grantor affirms that the undersigned have the authority to sign this agreement on
behalf of the Grantor. Grantee affirms that all necessary boards and public officials have authorized this
Easement. The undersigned asserts and affirms that they have they have the authority without limitation
to enter into this Easement Agreement on behalf of the Grantor and Grantee.
IN WITNESS WHEREOF, said Grantor and Grantee have hereunto set their hand and seal the day and
year first above written.
February 28, 2019 4
CASEY'S MEADOW,LLC
,`,sp111111fq f��,IBy: €4/7/1/X('
.• ��v E •R•�'4
Chet Wesenberg, Maria!, , Member 5 ; ''a�'9,A!�
. NOTq
:. •` A. : -(s
'il
STATE OF WISCONSIN ) � ':• BLIC.••;��.,_
)ss. "%J. ���•�••,...�
WINNEBAGO COUNTY ) 4i'0ii�,.,i•;1 N�V ��,,`�
Personally came before me this 7 day of (NA A(Lc-Li , 2019,the above named Chet Wesenberg,
to me known to be such person who executed the foregoing instrument and acknowledged the same, for the
purpose herein contained.
Notary Pu ,State of nsin
My Commission expires: ) o 7,9 /1 9
CITY OF OSHKOSH
By: ___,d_ --1-(� By:
Mark A.Rohloff, City Manager Pamela R. Ubrig,City Clerk
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally came before me this 13 day of I K O r(,k, , 2019, the above named Mark A. Rohloff
and Pamela R. Ubrig of the City of Oshkosh, to me known toy�bejje� such persons who executed the foregoing
instrument and acknowledged the same, for the��rp���e�cW��
Notary Public, State of Wisconsin
My Commission expires: /2143/J20
OVED S ORM:
n . Loren n, Attorney
This instrument drafted by:
Attorney David J.Praska
Oshkosh, WI 54903-1130
CONSENT OF MORTGAGEE
The undersigned, being the holder of a mortgage against the property identified and described as "Easement
February 28, 2019 5
Property" in this Easement Agreement, consent to the grant of the Easement set forth above and agree that its
interest in the Easement Property shall be subject to this Easement.
1 V 1 c T 1 V P'T \ o ..i A Ir TIP,r 1G�
(print name of mortgagee)
By: tre(2A-Ni v P(title)
ISf�02%.1 V(C+
(print name) (print title)
STATE OF U)IS'Lcr5 )
)ss.
W‘nlltl,ago COUNTY )
Personally came before me this I th day of PACt roA, , 2019, the above named
SI{Vt- R Pj; riN (signator) of NA f 6L {` J(%�-H W1G.A laan
(mortgagee), to me known to be such persons who executed the foregoing instrument and acknowledged the
same, for the purpose herein contained.
� ��
Notary ublic, State of IA)►9.1.. 1h.
f p,�
My Commission expires: 12 _/2DLo
February 28, 2019 6