AMENDED DECLARATION OF EASEMENT FOR PRIVATE ROAD AND PUBLIC UTILITIES

Transcription

1 AMENDED DECLARATION OF EASEMENT FOR PRIVATE ROAD AND PUBLIC UTILITIES This Amended Declaration of Easement for Private Road and Public Utilities ("The Amended Declaration") is executed this day of, 2017, by and between the Parties set forth below. RECITALS A. The Parties are the owners of certain real property located within the Village of Grafton, Ozaukee County, Wisconsin, as described in the attached Exhibit A (The "Property"). The Parties represent the owners of 100% of the Property. B. This agreement is an amendment to the Declaration of Easement for Private Road and Public Utilities recorded on July 29, 2008, as Document No by the Ozaukee County Register of Deeds (the Declaration ). C. The Parties desire to provide access to the Property by means of a Private Road., a portion of which is already constructed, referenced by the Declaration, and depicted on CSM No , a copy of which is attached as Exhibit B (the Existing Private Road ). The Parties contemplate an addition to the Existing Private Road over an area of land legally described on the attached Exhibit C ( the "Private Road Addition"). AMENDED DECLARATION Now therefore, the Parties, as all owners of the Property, do hereby delcare and state as follows: 1. DEFINITIONS. The following definitions in the Declaration are hereby amended or added: a. Lot shall mean any portion of the Property as presently existing or hereafter created, all of which shall have a right of use of the Existing Private Road and Private Road Addition. b. Private Road shall mean mean the paved road, curb and gutter, and related roadway work of both the Existing Private Road and the Private Road Addition either installed by Patriot as set forth in the Declaration or installed by Washington Street Hotel Associates, LLC subsequent to this Amended Declaration.. c. Private Road Easement Area shall mean the easterly 50 feet of Lots 1, 2, and 3 of the CSM attached as Exhibit B for the Existing Private Road, plus the area legally described on Exhibit C for the Private Road Addition. d. Participating Owner shall mean an Owner of a Lot upon which construction of a building has commenced, or for which a building permit has been obtained. On the first day of the month following the issuance of a building permit, the Participating Owners shares used to 1

2 determine assessments and voting shall be recalculated with each Participating Owner having one vote for every assessment share as set forth in the then current Maintenance Assessment Schedule. Until a building permit has been issued or a building is constructed on a Lot, that Lot shall not be subject to assessment nor shall the Owner of such Lot be allowed to vote on budget, maintenance or other items reserved in this Declaration to Participating Owners. e. Performing Party is the entity tasked with the responsibility of contracting for maintenance services, snow removal, and insurance approved by the Participating Owner s as set forth in this agreement. The Performing Party may be nominated by majority vote of the Participating Owners. The initial Performing Party shall be Kinseth Hospitality. f. Maintenance Assessment Schedule is the percentage split agreed upon by the Participating Owners. The initial Maintenance Assessment Schedule is attached hereto as Exhibit D. g. Storm Water Management Measures mean any retention ponds located anywhere on the Property or such other similar features set forth in any Stormwater Management Agreement between a Participating Owner and the Village related to all or any portion of the Property. h. All the Definitions contained in the Declaration that are not inconsistent with these Definitions shall remain in force unchanged. 2. PRIOR AGREEMENT AMENDED. By their signatures below, the Parties, being all the owners of the Property, do hereby declare and reaffirm the Declaration, as amended by this document. All owners agree to the rights, responsibilities, and obligations as set forth in the Declaration as modified by the Amended Declaration. In the event that the terms of the Amended Declaration conflict with the terms of the Declaration, this Amended Declaration shall control. 3. GRANT OF EASEMENTS. The Parties hereby grant and declare that the Private Road Easement Area shall be subject to the following easements, all of are perpetual and nonexclusive, run with the land, and shall inure to the benefit of all parcels within the Property. The easements are described as: a. Vehicular and Pedestrian Access Easement. An easement of vehicular and pedestrian ingress and egress over and across the Private Road Easement Area for all Lot Owners and other Permittees. b. Utility Easement. Utility easements over, under and across Private Road Easement Area: i) for water, storm sewer and sanitary sewer within the westerly most thirty (30) feet as dedicated as Municipal Easement in the CSM; and ii) and within the easterly 20 feet for cable television, telephone, gas and electric service to be dedicated for public utility purposes. In each case the easements are for the installation, operation, repair, placement, and restoration and maintenance of underground pipes, conduit and other equipment for such purposes. c. Perpetual Easement, Emergency and Other Vehicle Access. An easement for emergency access by the local fire department or any other emergency services, and for ingress and egress for garbage trucks and other service vehicles to provide such services to the Lots. 2

3 4. CONSTRUCTION. Washington Street Hotel Associates, LLC shall be responsible to complete the installation of the Private Road Addition and all new utilities within the Private Road Easement Area, consistent with the locations depicted on Exhibit C, and any stormwater management features on its Lot. By its signature below, Washington Street Hotel Associates, LLC warrants and represents that this work shall be completed in a professional and workmanlike manner and that Washington Street Hotel Associates, LLC shall obtain all necessary permits, licenses, or other authorizations. 5. RESERVED RIGHTS. The Parties reserve the right to dedicate or transfer the Private Road Easement Area in whole or in part to any municipality or government subdivision willing to accept the dedication. Similarly, the Parties reserve the right to dedicate or transfer any initially installed utility lines or equipment not owned or dedicated upon initial installation to the utility or other authority willing to accept the declaration Notwithstanding anything in the foregoing to the contrary, no such dedication or transfer of the Private Road Easement Area or any utilities shall be effective unless the Village, County, public agency, authority, or utility agrees to accept the dedication and further to maintain, repair, replace, operate and restore the installations so dedicated. The Parties further reserve the right to create a conservancy easement over Outlot 1 provided such easement does not in any way impact the Storm Water Management Measures or any other right or easement contained in this Declaration. 6. MAINTENANCE AND REPLACEMENT OF PRIVATE ROAD AND STORMWATER MANAGEMENT MEASURES. Regular maintenance shall be performed to keep the Private Road in good operating condition and to ensure safe access by emergency vehicles. Regular maintenance of Storm Water Management Measures shall be completed as deemed necessary by the Participating Owners or as required by the Village of Grafton. All Private Road and Storm Water Management Measures maintenance and/or improvements shall be performed consistent with the Village ordinances and other applicable law. A majority of the votes of the Participating Owners is sufficient to authorize any Private Road resurfacing, repairs to Storm Water Management Measures or to accept the bid of any contractors. Costs of any such improvement/repair will be shared as set forth in Section 8 below. 7. ASSESSMENT; VOTING. Participating Owners shall allocate costs of maintenance, repair, and replacement of the Private Road and Storm Water Management Measures, signs, insurance premiums, etc. pursuant to the Maintenance Assessment Schedule. After completion of the Private Road addition, the initial Maintenance Assessment Schedule shall be as set forth in Exhibit D. Prior to the completion of the Private Road Addition, the costs described herein shall be allocated as set forth in the Declaration. The Participating Owners may amend the Maintenance Assessment Schedule by majority vote and such amendment shall have legal effect whether or not a document is recorded. Notwithstanding any provision herein to the contrary, if an entity on the Maintenance Assessment Schedule is not yet defined as a Participating Owner by this Amended Declaration, that entity s share shall be divided among the Participating Owners in proportion to their assessment shares. 3

4 8. PAYMENT OF MAINTENANCE COSTS. All expenses for insurance premiums, snow removal, maintenance, and replacement of the Private Road, the Storm Water Management Measures and the Sign, if approved by the Participating Owners or assessed by the Village of Grafton, shall be deemed common expenses. Costs associated with maintenance, upkeep and repair of Storm Water Management Measures are shared expenses hereunder notwithstanding contrary language that might be contained in any Stormwater Management agreement in place for all or any portion of the Property and shall be shared as set forth in Section 7 above. The Performing Party shall contract for performance of the common expenses and invoice the Participating Owners in accordance with the Maintenance Assessment Schedule. The invoices may be issued before or after the Performing Party makes payment, in the sole discretion of the Performing Party. All payments in this provision must be kept in a segregated account. Disposition of interest on any amount on deposit shall be determined by majority vote of the Participating Owners. Any assessment shall be due and payable from each Participating Owner on the date specified in the invoice which shall not be earlier than fifteen (15) days following receipt. Any assessment, general or special, which is not paid when due, shall accrue interest at a rate equal to eighteen percent (18%) per annum from the date initially due until paid. Additionally, the delinquent Owner s Lot shall be subject to filing of a lien in the amount of the delinquency, which lien shall secure the amount in default, interest at the default rate as shall accrue, and all costs of enforcement, including reasonable attorney s fees. Such lien may be filed by Performing Party, in its own name or on behalf of the Participating Owners not in default. During such time as any Participating Owner is in default on payment of any assessment, such Participating Owner shall not have the right to vote on Private Road or Common Expense matters. All other paragraphs of the Declaration shall remain in full force and effect. This Declaration is made as of the date first above written. As to Lot 1 of Ozaukee County Certified Survey Map #3719 recorded on July 23, 2008 as Document No [signatures to follow on next page] 4

5 WISCONSIN RETAIL PROPERTY MANAGEMENT, LLC By: Scott Sadownikow, Member Personally came before me on this day of, 2017, the above-named Scott Sadownikow, as a member of Wisconsin Retail Property Management, LLC, to me known to be the person who executed the foregoing instrument in such capacity and acknowledged the same. As to Lot 2 of Ozaukee County Certified Survey Map #3719 recorded on July 23, 2008 as Document No

6 WSB GRAFTON REAL ESTATE, LLC By: Robert C. Schmidt, Jr., Member Personally came before me on this day of, 2017, the above-named, Robert C. Schmidt, Jr., as a member of WSB Grafton Real Estate, LLC to me known to be the person who executed the foregoing instrument in such capacity and acknowledged the same. As to Lot 3 of Ozaukee County Certified Survey Map #3719 recorded on July 23, 2008 as Document No

7 GRAFTON HOTEL ASSOCIATES, LLC By: Bruce Kinseth, Member Personally came before me on this day of, 2017, the above-named Bruce Kinseth, as a member of Grafton Hotel Associates, LLC to me known to be the person who executed the foregoing instrument in such capacity and acknowledged the same. As to Outlot 1 of Ozaukee County Certified Survey Map #3719 recorded on July 23, 2008 as Document No

8 PATRIOT PROPERTIES, LLC By: Kraig Sadownikow, Member Personally came before me on this day of, 2017, the above-named Kraig Sadownikow, as a member of Patriot Properties, LLC to me known to be the person who executed the foregoing instrument in such capacity and acknowledged the same. As to Lot 1 of Ozaukee County Certified Survey Map # recorded on as Document No.. By:, Member Personally came before me on this day of, 2017, the above-named, as a member of to me known to be the person who executed the foregoing instrument in such capacity and acknowledged the same. As to Lot 2 of Ozaukee County Certified Survey Map # recorded on as Document No.. 8

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10 WASHINGTON STREET HOTEL ASSOCIATES, LLC By: Bruce Kinseth, Member Personally came before me on this day of, 2017, the above-named Bruce Kinseth, as a member of Washington Street Hotel Associates, LLC to me known to be the person who executed the foregoing instrument in such capacity and acknowledged the same. As to Lot 3 of Ozaukee County Certified Survey Map # recorded on as Document No.. 10

11 GRAFTON STORE, LLC By: Gary Steinhafel, Manager Personally came before me on this day of, 2017, the above-named Gary Steinhafel, as a member of Grafton Store, LLC, to me known to be the person who executed the foregoing instrument in such capacity and acknowledged the same. 11

12 VILLAGE APPROVAL By signature below, the Village of Grafton acknowledges and approves this Declaration; however, does not join therein, nor assume any obligations thereunder. VILLAGE: VILLAGE OF GRAFTON By: James Brunnquell, Village President Attest: Kaity Olsen, Village Clerk This instrument was drafted by: Patrick H. Madden MADDEN VANDERLOOP, S.C. 116 S. Main Street Mayville, WI Telephone: (920)