HomeMy WebLinkAboutEncroachment 1418 Coolidge Avenue 16-0322-0000 11111111111111111111111
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Encroachment Agreement DOC# 1794092
NATALIE STROHMEYER
Document Number REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
07/18/2019 09:15 AM
RECORDING FEE: 30.00
PAGES: 10
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,WI 54903-1130
91603220000
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
June 26, 2019 1
t
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh(City) and Jorge L. Sanabria Sr. (Owner).
The parties enter into this agreement for $1.00 and other good and valuable consideration as
described in this Agreement, the receipt of which is acknowledged.
The Owner is the fee owner of the Property identified with Parcel Number 91603220000 and
commonly known as 1418 Coolidge Ave, Oshkosh(Property). The City holds a 22 feet by 15 feet
Storm Sewer Easement (Easement) over and through the Property. The recorded easement along
with a map identifying its location is attached and incorporated into this Agreement as Exhibit A.
The Property more particularly described as:
Lots Seven(7),Eight(8)and Nine(9)of Block"C"NORTHWESTERN CAR
AND MACHINE COMPANY FIRST ADDITION,in the Twelfth Ward,City
of Oshkosh,Winnebago County,Wisconsin per Leach's Map of 1894,and now
in the Sixteenth Ward of said City.
The Owner desires to install a 4 feet black aluminum rail fence across the City's Storm Sewer
Easement. The fencing will be installed in a manner substantially conforming to the location and
description as identified in Exhibit B, which is attached to this Agreement.
The City has reviewed the Owner's request and will allow the placement of the requested
Encroachment. The approval of the Encroachment is premised on fence construction and
maintenance in a manner that will allow the continued proper drainage and storm sewer conveyance,
including maintenance,as designed for the Storm Sewer Easement. Both parties agree that all of the
City's terms and conditions in this Agreement are considered material. Specific terms and
conditions of this agreement between City and Owner follow.
1. The City grants permission to the Owner to construct a 4 feet black aluminum rail fence
which will encroach into the City's Storm Sewer Easement, provided that the
Encroachment is materially similar to the location and description submitted for the
City's review and approval. Changes and/or alterations to the Encroachment must be
approved in writing in addition to any written permits, licenses, and similar approvals.
The City notes that certain conditions for construction are identified in Exhibit B.These
conditions are material.The location and other information about the fencing allowed are
found on the drawing attached and incorporated into this Agreement as Exhibit B.
2. The City's permission for this Encroachment is contingent upon the initial, and
continuing,compliance with all applicable local,state,and federal statutes,codes,rules,
and Ordinances.
3. The Owner agrees that they are solely responsible for the installation and maintenance of
the Encroachment, and that they are solely responsible for any and all personal or
property damage caused by the existence of the Encroachment.
June 26, 2019 2
4. The Owner is solely responsible for securing, maintaining,repairing, and replacing the
Encroachment. The City does not accept or assume any liability or responsibility for the
Encroachment,whether to the Owner or to any third party, simply because it allows this
Encroachment.
5. The Owner acknowledges and agrees that the Storm Sewer Easement may be subject to
maintenance. In the event that maintenance is necessary, the City agrees to make
reasonable efforts to notify the Owner of these activities so that the Owner may protect or
remove the Encroachment. Protection or removal of the Encroachment shall be at the
Owner's cost. If the Owner elects to protect or remove the Encroachment, such actions
must be taken within the timeframe for the City's anticipated work.The City shall not be
responsible for any damage to the Encroachment, or any real property or structure
associated with or surrounding the Encroachment.
6. In the event that the Owner fails to remove or protect the Encroachment,or in the event
of an emergency, then the City may take all reasonable actions to remove or reasonably
protect the Encroachment for the purpose of maintenance within the Storm Sewer
Easement. Removal and/or protection of the Encroachment shall be at Owner's expense.
The Owner shall be responsible for repairing, reinstalling or reconstructing the
Encroachment in all circumstances. The City shall be reimbursed by the Owner for all
costs and expenses related to the Encroachment. The Owner gives the City permission to
enter,access, and alter the Property not included in the easement for the sole purpose of
removing or protecting the Encroachment.
7. The City is allowed to revoke its permission for the Encroachment at its sole discretion
for any of the following reasons:
a. The public use of the Storm Sewer Easement prohibits the continued location of
the Encroachment;
b. The City determines that the Encroachment adversely affects the functioning of
Storm Sewer Easement;
c. Additional Encroachments are added or expanded without permission;
d. Local, state, or federal rules, laws, or guidelines relating to any public facility
located in the Storm Sewer Easement, or any other local, state, or federal law,
prohibit the continued existence of the Encroachment;
e. The Owner fails to property maintain, repair, or replace the Encroachment;
f. The Owner fails to provide the City with annual written proof that the
Encroachment is covered by the required insurance.
June 26, 2019 3
8. The Owner releases the City of Oshkosh, its employees, agents, elected officials, and
authorized volunteers from all debt, claims, demands, damages, actions and causes of
action whatsoever which may result from the Encroachment. The Owner shall protect
and hold the City of Oshkosh harmless against all actions, claims and demands of any
kind or character whatsoever which are related to the Encroachment.
9. Both parties understand and agree that accidents and incidents related to the Storm Sewer
Easement may result in lawsuits or threats of lawsuits against the City. Therefore, the
Owner agrees to indemnify and pay to the City all amounts that the City may be required,
obligated, or adjudged as responsible to pay, for any dispute or action related to the
Encroachment. This indemnification is broad,and shall include damages,attorney's fees
and costs,and defense costs. The payments required of the Owner by this paragraph are
due no later than 30 days after written request for such indemnification. The Owner
agrees that this paragraph shall be liberally construed in favor of the City of Oshkosh,in
consideration of the privilege granted by the City under this Agreement.
10. At all times that the Encroachment is located in the Storm Sewer Easement,the Owner's
property liability insurance shall cover all potential liabilities related to the
encroachment. The Owner's insurance shall provide reasonable coverage for potential
damages to persons and property cause wholly, or in part, by the encroachment.
Minimum insurance coverage related to the encroachment shall be $500,000 for each
occurrence for bodily injury and property damage liability and $500,000 general
aggregate. The Owner shall include the City of Oshkosh as an additional insured on its
policy for claims,liabilities,and damages related to the encroachments.The Owner shall
annually provide the City with proof of insurance for the Encroachment.
11. The Owner's responsibilities pursuant to this Agreement extend to other persons,
contractors, and agents performing work on Owner's behalf and related to the
Encroachment, as well as successors and assigns, and those with any interest in the
Property.
12. This Agreement is solely for the benefit of the City and the Owner,and this Agreement is
not intended to benefit any third party.
13. The election to enforce or not enforce any provision of this Agreement, as well as the
timing of enforcement, shall be at the City's sole discretion and shall not act as a waiver
of any rights to exercise any right relating to the Encroachment.
14. This Agreement shall incorporate and apply all immunities and limitations on liability
provided to municipalities within the Wisconsin Statutes,regardless of whether a claim is
based upon contract, tort, or other theory.
15. The City's permission is personal to the Owner,and cannot be transferred or assigned to
any other person or entity, whether voluntarily or involuntarily. The Owner's rights
contained in this agreement relate to the Owner signing this document,and do not attach
to property or run with the land. Permission for the Encroachment is revoked
immediately and without notice as of the time that any person or entity other than the
June 26, 2019 4
. «
Owner identified in this document becomes a fee owner,whether in whole or in part,of
the Property. Any delay in the City's enforcement of this Agreement shall not adversely
affect its right to pursue compliance with the Owner. The City's permission is also
immediately revoked where the Property is transferred to an entity of which the Owner as
defined above is the sole or partial Owner of the entity.
[SIGNATURE PAGE FOLLOWS]
June 20, 2019 5
A •
Dated: 05 '2'019
PROPERTY OWNER:
1418 Coolidge Ave
J ge L. Sanabria Sr.
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY )
Personally came before me this G day of 2019,the above-named Jorge L.Sanabria Sr.to me known to
be the person who executed the foregoing document and a wledged the same.
,v
Notary Public,State of Wiscons � ��J ! I 0 0 L-
My Commission expires: � b ti, : (it
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CITY OF OSHKOSH - -
By: er-- �i���LC� And: (Y3 K�}'(l
Mar A. Rohloff, City Manager Pamela R. Ubrig, City Cler
;a -
.
`v: -
STATE OF WISCONSIN ) .4,ri:+ -,
)ss.
WINNEBAGO COUNTY ) II
Personally came before me this `5 day of J`L' ,2019,the above-named Mark A.Rohloff,City Manager,and
Pamela R.Ubrig,City Clerk,of the City of Oshkosh,a municipal corporation,to me known to be the persons who executed the
foregoing instrument,and to me known to be such officers of said corporation,and acknowledged that they executed the foregoing
instrument as such officers as the deed of said corporation,by its authority. ` .j'1`+1++,,,
,,,,
,� ,
otary Publi to of Wiscons = ,:�,' qY
, IMy Commissr expires: j, V _�t1k ;' ` ,
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June 20, 2019 6
Easement `*`�6 1
1
REGISTER': OFFICE
Document Number Document Title WINNEBAGO COUNTY, WI
RECORDED ON
THIS INDENTURE,made this 1e day of ,2007, 08/23/2007 01 :11PM
by LELAND R.ZIEBELL,Grantor,and CITY F OSHKOSH,a JULIE PAGEL
municipal corporation, located in Winnebago County,Wisconsin, Grantee, REGISTER Or DEEDS
WITNESSETH: RECORDING FEE 11.00
TRANSFER FEE
IN CONSIDERATION of the sum of One Dollar($1.00)and # OF PAGES
other good and valuable consideration paid by the Grantee, the receipt of
which is hereby acknowledged,the Grantor does hereby give and grant unto Recording Area ( �tnp�C��
the Grantee,its successors and assigns,an easement in, under and over the Name and Return Address
land hereinafter described,including the right to enter upon said land for City Attorney's Office
the purpose of construction,maintaining, and repairing a storm sewer Oshkosh,WI 54903-1130
over, under and upon certain tracts of land situated in the City of Oshkosh,
Winnebago County, Wisconsin,and described as follows: 16-0324-0000
Parcel Identification Number (PIN)
A parcel of land being part of the SW '/a of the SE %a of Section 15,T18N,R16E, 16th Ward,
Northwestern Car&Machine Company 1't Addition Block C, City of Oshkosh,Winnebago County,
State of Wisconsin and being described as follows:
The north 22 feet of the west 15 feet excepting the north 12 feet of the west 15 feet of Lot 9 Block C
Northwestern Car&Machine Company let Addition.
Upon exercising any of the rights herein granted, Grantee shall cause the property, soil and grass to be
repaired and replaced in a condition similar to its condition immediately prior thereto, and obligates itself to pay to
Grantor, it successors and assigns,all actual damages caused by repair,installation, operation,repair or removal of
said storm sewer through said property.
No improvements are allowed within the areas reserved for public utility and drainage easements. Improvements
include, but are not limited to,building structures,driveways,parking areas,sheds,landscaping or fences. Any
improvements shall be allowed only by special exception of the Board of Public Works.
The Grantee releases the Grantor from all debts, claims, demands, damages, actions and causes of action
whatsoever which may result from said easement heretofore granted by Grantor,and further agrees to hold the Grantor
free and harmless from any claim for damages which may be made by reason of damages or injury to persons or
property connected therewith.
IN WITNESS WHEREOF, said Grantor h he unto et its hand and seal the day and year first above
written.
Leland R. Zie 11
STATE OF WISCONSIN)
)SS,
WINNEBAGO COUNTY)
CZ
Personally came before me this /a( day of 2007,the above named Leland R.Ziebell,to me known to
be the person who executed the foregoing instrume nd acknowledged the same.
0
Notary Public,Winnebago County,Wisconsin
My Commission expired: /4-/3 - O 9'
This instrument drafted by:
Attorney Lynn A.Larenson
Oshkosh,WI 54903-1130
Exhibit A "�
AUGUST 14, 2007 07-215 RESOLUTION
(CARRIED 6-0 LOST LAID OVER WITHDRAWN )
PURPOSE: ACCEPT UTILITY EASEMENTS:
A) 1418 COOLIDGE AVENUE
B) 1319 ARTHUR AVENUE
INITIATED BY: DEPARTMENT OF PUBLIC WORKS
PLAN COMMISSION RECOMMENDATION: Approved
BE IT RESOLVED by the Common Council of the City of Oshkosh that the
proper City officials are hereby authorized and directed to accept easements from the
following and to execute any and all documents necessary for purposes of same.
A) 1418 Coolidge Avenue; Leland Ziebell, owner
Per the attached "Exhibit A".
B) 1319 Arthur Avenue; David Ehike, owner
Per the attached "Exhibit B".
Exhibit A
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NORTHWESTERN CAR I &
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LOT 6 LOT 5 1 LOT 4 LOT I I LOT 2
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905 1 I 16-0328 1
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48.266' 48.266' 48.266' 24.133' 24.133' 24.133'
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HAWK ST . . .
48.266' 24.133' 24.133' 48.266'in f 48.266' 24.133'
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} iI 16 - 0324 0 916
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Q LOT 7 I LOT 8 LOT 9
LOT 10 I LOT 11
LLI `-r-7 r r BLOCK C
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COMPANY I FIRST ADDITION
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I CITY OF
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I ENGINEERINGODIVISION H
_?rn 10`x15' STORM SEWER EASEMENT
V I NA NEE DRAMI PARCEL NO. 16-0324
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55 EASEMENT 4/1e/o7 HAWK ST.
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City of Oshkosh maps and data are intended to be used for general identification Ci1,64111pe
purposes only,and the City of Oshkosh assumes no liability for the accuracy of the Printing Date:4/26/2019
information.Those using the information are responsible for verifying accuracy.For Oshkosh
full disclaimer please go to www.ci.oshkosh.wi.us/GISdisclaimer Prepared by:City of Oshkosh,1/1/1
J:\GIS\GIS_Base_MapsiPlanning Base Map-Far Wndows 10.msd User katleb
Exhibit B