DECLARATION OF DRAINAGE EASEMENTS. Document No. Document Title. (Declarant) Recording Data Return Address

Transcription

1 Document No. DECLARATION OF DRAINAGE EASEMENTS Document Title (Declarant) Recording Data Return Address DOCUMENT PREPARED BY AND AFTER RECORDING RETURN TO: Parcel No

2 DECLARATION OF DRAINAGE EASEMENTS THIS DECLARATION OF DRAINAGE EASEMENTS (this "Agreement") made this day of 201_, by, whose address is (the "Declarant") WHEREAS, Declarant is the owner of that certain real property legally described on Exhibit A attached hereto (the "Lot 1 Parcel"); and WHEREAS, Declarant is the owner of that certain real property legally described on Exhibit B attached hereto (the "Lot 2 Parcel"; together with the Lot 1 Parcel, the "Development"); and WHEREAS, Declarant desires to grant and impose certain easements upon the Development, as hereafter defined, and to establish certain covenants and conditions with respect to the Development, for the mutual and reciprocal benefit and complement of the Development and the present and future owners, tenants and occupants thereof, on the terms and conditions hereinafter set forth. NOW THEREFORE, for and in consideration of the above premises and of the covenants herein contained, the Declarant hereby declares, grants, establishes, covenants and agrees that the Development and all present and future owners and occupants of the Development shall be and hereby are subject to the terms, covenants, easements, restrictions and conditions hereinafter set forth in this Agreement, so that said property shall be maintained, kept, sold and used in full compliance with and subject to this Agreement, as follows: 1. Definitions. For purposes hereof: (a) The term Parcel or Parcels shall mean each separately identified parcel of real property now constituting a part of the real property subjected to this Agreement, that is, the Lot 1 Parcel and the Lot 2 Parcel, and any future subdivisions thereof. (b) The term Common Area shall mean those portions of the Parcels that are outside of exterior walls of buildings or other structures from time to time located on the Parcels, and which are either unimproved, or are improved as (without limitation) parking areas, landscaped areas, access drives, driveways, drive aisles, roadways, sidewalks, walkways, light standards, curbing, curb cuts, paving, entrances, exits and other similar exterior site improvements, but shall exclude those sidewalks immediately adjacent to such buildings, for the exclusive use of the Parcel on which they are located. (c) The term Storm Water Detention Pond shall mean the storm water detention pond located on the Lot 1 Parcel and legally described on Exhibit C attached hereto and made a part hereof. (d) The term Storm Water Maintenance Agreement shall mean that Storm Water Detention Pond and Maintenance Agreement dated, 2018, by and between Declarant and the Village of Grafton (the Village ). 2

3 (e) The term Owner or Owners shall mean the owner or owners of fee simple title to all or any portion of the real property covered hereby, and any and all successors or assigns of such persons, whether by sale, assignment, inheritance, operation of law, trustee s sale, foreclosure, or otherwise, but not including the holder of any lien or encumbrance on such real property. (f) The term Permittees shall mean the tenant(s) or occupant(s) of a Parcel, and the respective employees, agents, contractors, customers, invitees and licensees of (i) the Owner of such Parcel, and/or (ii) such tenant(s) or occupant(s) and (iii) any mortgagee(s) of the Owner with an interest in a Parcel. (g) The term "Detention Pond Maintenance Costs" shall mean the reasonable out of pocket costs incurred by the Owner of the Lot 1 Parcel for maintaining the Storm Water Detention Pond pursuant to the Storm Water Maintenance Agreement; provided, however, the Detention Pond Maintenance Costs shall exclude any additional costs or fees incurred as a result of a breach of the Owner of the Lot 1 Parcel's obligations under the Storm Water Maintenance Agreement. 2. Grant of Cross Drainage Easement. Subject to any express conditions, limitations or reservations contained herein, the Declarant hereby declares, grants, establishes, covenants and agrees that the Parcels, and all Owners and Permittees of the Parcels, shall be benefited and burdened by the following nonexclusive, perpetual and reciprocal easements which are hereby imposed upon the Parcels and all present and future Owner s and Permittees of the Parcels, for the drainage of water over the Common Area. Such easement herein above granted shall be used and enjoyed by each Owner and its Permittees in such a manner so as not to materially interfere with, obstruct or delay the normal operation of a Parcel or the conduct and operations of the business of any other Owner or its Permittees at any time conducted on its Parcel, including, without limitation, public access to and from said business, and the receipt or delivery of merchandise in connection therewith. 3. Detention Pond Easement. The Owner of the Lot 2 Parcel shall have a perpetual, nonexclusive easement, for drainage of storm water over, across and onto the Lot 1 Parcel, into the Storm Water Detention Pond. 4. Detention Pond Maintenance Costs. The Owner of the Lot 1 Parcel covenants and agrees to comply with the maintenance obligations set forth in the Storm Water Maintenance Agreement; provided, however, each Owner shall reimburse the Owner of the Lot 1 Parcel a pro rata share of the Detention Pond Maintenance Costs, in the following percentages: 5. Indemnification. To the extent allowed by law, each party shall indemnify, protect, defend and hold harmless the other from and against injury or loss of property, personal injury or death occurring on the other parties property. 3 Lot 1 Parcel Owner 84.40% Lot 2 Parcel Owner 15.60% TOTAL % The Owner of the Lot 1 Parcel shall send invoices to the other Owner(s) for the reimbursements provided for in this Section 3 not more than once per month, which invoice shall be accompanied by supporting documentation. All such reimbursements required under this Section 3 must be made within thirty (30) days after receipt of an invoice and supporting documentation.

4 6. Enforcement. Either party may enforce this Agreement by an action at law or in equity and the prevailing party in such action will be entitled to recover from the other party its expenses and costs, including, without limitation, reasonable attorneys' fees. In addition to all other remedies available at law or in equity, upon the failure of a defaulting Owner to cure a breach of this Agreement within thirty (30) days following written notice thereof by an Owner (unless, with respect to any such breach the nature of which cannot reasonably be cured within such 30-day period, the defaulting Owner commences such cure within such 30-day period and thereafter diligently prosecutes such cure to completion), any Owner shall have the right to perform such obligation contained in this Agreement on behalf of such defaulting Owner and be reimbursed by such defaulting Owner upon demand for the reasonable costs thereof together with interest at the prime rate charged from time to time by Chase Bank (its successors or assigns), plus two percent (2%), not to exceed the maximum rate of interest allowed by law (the Default Rate ). Notwithstanding the foregoing, in the event of (i) an emergency or (ii) blockage or material impairment of the easement rights, an Owner may immediately cure the same and be reimbursed by the other Owner upon demand for the reasonable cost thereof together with interest at the Default Rate. Any claim for reimbursement of any payment obligation under this Section 5, including interest and reasonable attorneys fees, costs and legal expenses incurred in enforcing such payment obligation, shall be assessed against the defaulting Owner in favor of the non-defaulting Owner and shall constitute a lien against the Parcel of the defaulting Owner until paid, effective upon the recording of a notice of lien with respect thereto. 7. Running of Benefits and Burdens. The terms and conditions of this Agreement are made for the benefit of each Owner and their successors and assigns, and shall be covenants running with the land. 8. Governing Law. This Agreement and the performance thereof shall be governed, interpreted, construed, and regulated by the laws of the State of Wisconsin. 9. Invalidity. If any provision of this Agreement shall be held invalid, the validity of the remainder hereof shall not be affected thereby. 10. Incorporation. All of the provisions and documents made reference in the Recitals and Preamble section hereunder are a material part of the Agreement and are hereby incorporated into the Agreement and made a part hereof. 11. Modification; Waiver. This Agreement shall not be modified, extended or terminated other than as set forth herein, except by an instrument duly signed by both parties. Waiver of a breach of any provision hereof under any circumstances will not constitute a waiver of any subsequent breach of such provision, or of a breach of any other provision of this Agreement. [Remainder of page intentionally left blank signature page follows] 4

5 IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed in their name on the date first above written. By: By: Its: STATE OF ) ) SS COUNTY OF ) I, the undersigned, a Notary Public in and for the said County, in the State aforesaid, do hereby certify that, personally known to me to be the of, appeared before me this day in person and acknowledged that he signed the foregoing instrument as a free and voluntary act as such officer for the uses and purposes therein set forth, and that the said instrument is the act and deed of said limited liability company. GIVEN under my hand and seal this day of, 201_. 5

6 CONSENT AND SUBORDINATION OF LENDER First Midwest Bank ( Lender ), is the mortgagee under that certain Mortgage recorded against the Development (the Mortgage ). Lender hereby expressly consents to the execution of the foregoing Declaration of Drainage Easements (the Declaration ) and the recordation thereof against the Development and, except as otherwise provided herein, hereby subordinates the lien of the Mortgage, to the Declaration. IN WITNESS WHEREOF, First Midwest Bank, has caused this Consent and Subordination of Lender to be executed this day of, First Midwest Bank STATE OF ) ) ss. COUNTY OF ) By: Name: Title: I,, a Notary Public in and for the county and state aforesaid DO HEREBY CERTIFY that the of First Midwest Bank who is personally known to me to be the person whose name is subscribed to the foregoing instrument as such appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her free and voluntary act as such as the free and voluntary act of said bank, for the uses and purposes therein set forth. Given under my hand and Notarial Seal this day of, My Commission expires: Notary Public 6

7 EXHIBIT A LOT 1 LEGAL DESCRIPTION LOT 1 OF CERTIFIED SURVEY MAP NO, BEING A REDIVISION OF LOT 1, CSM NO. 2726, IN THE NORTHWEST 1/4 AND THE NORTHEAST 1 /4 OF THE NORTHWEST 1 /4 OF SECTION 25, TOWNSHIP 10 NORTH, RANGE 21 EAST, IN THE VILLAGE OF GRAFTON, OZAUKEE COUNTY WISCONSIN. 7

8 EXHIBIT B LOT 2 LEGAL DESCRIPTION LOT 2 OF CERTIFIED SURVEY MAP NO, BEING A REDIVISION OF LOT 1, CSM NO. 2726, IN THE NORTHWEST 1/4 AND THE NORTHEAST 1 /4 OF THE NORTHWEST 1 /4 OF SECTION 25, TOWNSHIP 10 NORTH, RANGE 21 EAST, IN THE VILLAGE OF GRAFTON, OZAUKEE COUNTY WISCONSIN. 8

9 EXHIBIT C LOT 1 DETENTION POND LEGAL DESCRIPTION 9

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