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CCR2015050-Agreement PARK ARTHUR EQUESTRIAN TRAIL AGREEMENT This agreement is made and effective as of the _____ day of __________, 2015, by and between Bob Janke d/b/a 4J’s Equestrian Center (“Stable Owner”) and the City of Muskego (the “City”). Preamble A. Properties. Although neither party warrants title to the other, the City is believed to be the owner of a property known as Park Arthur, further identified by Tax Key Number MSKC2173993 (the “Park”); and the Stable Owner is believed to be the owner of property located next to the park addressed as S36W17271 College Avenue, known as Tax Key Number MSKC 2173998 (the “Stable Property”). B. Purpose. It is the intention of the City and the Stable Owner to share use and responsibility for the ongoing maintenance and repair of an equestrian trail, to be located in the Park. It is further the intention of the City and the Stable Owner that the Park Equestrian Trail shall be a City facility, open to the general public. C. Consideration. The Stable Owner has determined that use of the Park for equestrian trail riding will enhance its business, and the City has determined that having an equestrian trail in the Park will be a benefit to the City and its residents. The City and the Stable Owner, upon their mutual promises, and upon the foregoing mutual benefits, find that there is ample consideration for this agreement and hereby intend to be bound. Section One: Use of the Park A. Park Area. The Stable Owner will only be allowed to conduct equestrian activities in the specific equestrian trail area shown on Exhibit A, attached hereto and incorporated herein by reference (the “Equestrian Trail”). B. Park Use. The Park Equestrian Trail uses shall be conducted in a manner that is consistent with the multiple shared uses of the Park. The equestrian uses shall have no priority over any other uses of the Park, and shall yield to pedestrians, vehicles and other users of the Park. C. Obstructions to Use of the Equestrian Trail. Neither the City nor Stable Owner, nor any person permitted to use the Equestrian Trail under the terms of this agreement, may utilize the Equestrian Trail in a way that permanently interferes with its use by any other person permitted to use it. Any obstructions or impediments to the use of the Equestrian Trail contrary to the terms of this agreement may be removed, without notice, by the City and the costs of such removal shall be borne by the party causing or responsible for such obstruction. The Stable Owner’s uses must not interfere with Park operations. The City reserves the right to close off areas of the Equestrian Trail as it deems to be necessary for Park operations. Section Two: Stable Owner Responsibilities A. Maintenance. The Stable Owner shall keep the Equestrian Trail graded; shall remove horse droppings in a timely manner; shall remove litter from the Equestrian Trail; and shall spread woodchips, to ensure that the Equestrian Trail is a safe and sanitary amenity of the Park at all time. The Stable Owner shall use Stable Owner’s own equipment and personnel for all maintenance activities. B. Education. The Stable Owner shall educate the Stable Owner’s customers on the proper use of the Equestrian Trail. C. Inspection. The Stable Owner shall inspect the Equestrian Trail at least once per week and shall notify the City in the event the inspection reveals any defective conditions, hazardous conditions, or other concerns. D. Rules and Signage. The Stable Owner shall assist the City in developing rules and associated signage for Equestrian Trail users. E. Limited Private Access. As further consideration for this agreement, the Stable Owner agrees that it will make its private Equestrian Trail, located on the Stable Property, available to equestrian uses by the general public, subject to the following limitations. Any such equestrian rider must first obtain approval from the Stable Owner, before entering the Stable Property. The Stable Property Owner reserves the right to prohibit such access to riders who fail to follow the Stable Owner’s policies and rules. Section Three: City Responsibilities A. Signage. The City shall purchase, install and maintain signage along the Equestrian Trail, and also in the parking lot for trailer stalls (if needed). B. Oversight. The City shall monitor the Equestrian Trail as needed, and shall notify the Stable Owner of any defective conditions, unsanitary conditions, or other concerns. In the event the Stable Owner fails to correct the conditions identified by the City within the time required by the City, the City reserves the right to close the Equestrian Trail, or to terminate this agreement, or to take such other action as the City deems to be appropriate. Section Four: Legal Provisions A. Enforcement of Agreement - The City shall have the right to legally enforce this agreement and the covenants, conditions and restrictions set forth herein, by whatever action or actions are legally available, including, without limitations, enjoining any violation or threatened violation hereof. B. Amendments - This agreement may not be modified, amended or terminated except by execution of a written instrument signed by all owners. C. Severability - If any provision or specific application of this agreement is found to be invalid by a court of competent jurisdiction, the remaining provisions or specific applications of this agreement shall remain valid and binding. D. Default. Should either party fail to carry out this agreement, the other party shall be entitled to exercise any and all available rights and remedies at law or in equity. E. Assignment. Neither the Stable Owner nor the City may assign its interest under this agreement without the other party’s prior written consent, which may be granted or withheld in such party's sole discretion. 2 F. No Warranties or Representations; and Indemnification. The City makes no representations or warranties whatsoever about the Equestrian Trail, the safety thereof, its fitness for a particular purpose or any other aspect of the trail. In addition to, and not to the exclusion or prejudice of, any provisions of this agreement or documents incorporated herein by reference, the Stable Owner hereby waives all claims arising out of this agreement, and shall indemnify and save harmless and agrees to accept tender of defense and to defend and pay any and all legal, accounting, consulting, engineering and other expenses relating to the defense of any claim asserted or imposed upon the City, its officers, agents, employees and independent contractors growing out of this agreement by any party or parties. The Equestrian Trail is a recreational trail, and all uses of the trail are conducting recreational activities, even in the maintenance thereof, pursuant to Wisconsin Statutes Section 895.52. Nothing herein constitutes a waiver of protections afforded to the City by Wisconsin Statutes Chapter 893 or 895 or other applicable laws. G. Notices. All notices permitted or required by this agreement shall be given in writing and shall be considered given upon receipt if hand delivered to the party or person intended, or upon facsimile transmission to the fax numbers set forth herein, or one business day after deposit with a nationally recognized overnight commercial courier service, air bill prepaid, or three (3) business days after deposit in the United States mail, postage prepaid, by certified mail, return receipt requested, addressed by name and address to the party or person intended as follows: To the Business: Bob Janke d/b/a 4J’s Equestrian Center S63W17271 College Avenue Muskego, WI 53150 To the City: City of Muskego W182 S8200 Racine Avenue Muskego, WI 53150-0749 Attn: City Clerk-Treasurer Fax No.: 262-679-4106 H. Governing Law. This agreement concerns real property located in the State of Wisconsin, and shall be interpreted and construed according to the laws of the State of Wisconsin. I. Severability of Provisions. If any of the terms or conditions contained herein shall be declared to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions and conditions of this agreement, or the application of such to persons or circumstances other than those to which it is declared invalid or unenforceable, shall not be affected thereby and shall remain in full force and effect and shall be valid and enforceable to the full extent permitted by law. J. Captions. The captions in this agreement are inserted only as matters of convenience and for reference and in no way define or limit the scope or intent of the various provisions, terms or conditions hereof. K. Binding Effect. The terms and conditions of this agreement shall be binding upon and benefit the parties hereto and their respective successors and permitted assigns. 3 L. Entire Agreement. This writing constitutes the entire agreement between the parties hereto, and all prior statements, letters of intent, representations and offers, if any, are hereby terminated. This agreement may be modified or amended only by written instrument signed by both parties. M. Counterparts. This agreement may be executed in one or more counterparts, each of which will be deemed an original. N. Representations as to Authority. Each party to this agreement represents and warrants that: (a) it has the power and authority to consummate the transactions contemplated by this agreement; (b) all proceedings necessary for it to consummate the transactions contemplated by this agreement have been duly taken in accordance with law; and (c) the persons executing this agreement on behalf of it have been duly authorized to execute this agreement. O. Fax Signatures. The parties agree that fax signatures shall be binding on the parties hereto. Section Five: Insurance At all times during the term of this agreement, Stable Owner shall provide a copy of their insurance policy to the City. Section Six: Term This agreement shall be effective for an initial term of two (2) years, to expire on the second anniversary of its effective date. The parties may agree to continue the agreement for additional years, by separate written agreement. Section Seven: Termination This agreement may be terminated by either party with or without cause upon written notice, to be effective 30 days following the date of the notice, subject to the following. Upon termination of this agreement, the City shall have the right to prohibit the Stable Owner and patrons of the Stable Owner from using the Equestrian Trail in relation to the Stable Owner’s business operations. IN WITNESS WHEREOF, the parties have executed this Park Arthur Equestrian Trail Agreement. Dated this _____ day of _______________, 2015. City of Muskego ATTEST: By: ________________________________ By: __________________________________ Print Name: Kathy Chiaverotti Print Name: Sharon Mueller Title: Mayor Title: Finance/Admin. Director/Clerk STATE OF WISCONSIN ) ) ss. COUNTY OF WAUKESHA ) 4 Personally came before me on this _________ day of ________________, 2015, the above-named Kathy Chiaverotti, Mayor; and Sharon Mueller, Finance/Admin. Director/Clerk, executed the foregoing instrument and acknowledged the same. _______________________________ NOTARY PUBLIC, STATE OF WI My Commission Expires: ___________ Dated this _____ day of _______________, 2015. BOB JANKE d/b/a 4J’S EQUESTRIAN CENTER By: _________________________________ Print Name: __________________________ Title: ________________________________ STATE OF WISCONSIN ) ) ss. COUNTY OF WAUKESHA ) Personally came before me on this _________ day of ________________, 2015, the above-named Bob Janke executed the foregoing instrument and acknowledged the same. _______________________________ NOTARY PUBLIC, STATE OF WI My Commission Expires: ___________ B:\\MyFiles\\Muskego\\Park Arthur Equestrian Trail\\Park Arthur Equestrian Trail Agreement.04-17-15 5