HomeMy WebLinkAboutEncroachment Agreement- Winnebago CountyTx:4427242
DOC# 1812014
NATALIE STROHMEYER
Encroachment Agreement REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
03/16/2020 11:05 AM
RECORDING FEE: 30.00
PAGES: 12
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
ding Area
and Return Address
City Attorney's Office
PO Box 1130
91529500000
Parcel Identification Number
September 12, 2019
b
ENCROACHMENTAGREEMENT
This Agreement is between the City of Oshkosh ("City") and Winnebago County
("County"). 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.
A. The County is the fee owner of Tax Parcel Number 91529500000 ("Properly"), which is a
large, 121.88 acre parcel within the City with the following boundaries: East County
Highway Y on the north, County Park on the west and south, and County Highway A on
the east. A private street, Butler Avenue, traverses through the property and intersects with
County Highway Y on the north, and County Highway A on the southeast. The size of the
parcel has allowed the County to develop multiple buildings in varying locations
throughout the property for the purposes of furthering the provision of its public services.
The County wishes to further develop the property by constructing a facility that will
provide additional public services.
B. The design and site plan for the County's new facility, which is located at what will be
known as 684 Butler Avenue, impacts the City's municipal utilities located within an
Easement on the Property, which has resulted in the need for this Agreement.
C. The County previously granted to the City three (3) easements through the Property which
allowed the installation and operation of the City's sanitary sewer and water distribution
system. The three (3) easements are in the same general area, and are in widths of thirty
(30) feet, forty (40) feet, and twenty (20) feet. The three (3) easements are identified in one
Easement agreement that is dated October 23, 1995, and recorded with the Winnebago
County Register of Deeds on August 29, 1996, as Document Number 947157. A Copy of
this Easement is attached hereto as Exhibit A and its terms incorporated into this
Agreement.
D. The County's private street, Butler Avenue, shares some of the City's Easement areas but
the actual utilities installed in the Easement area subject to this Encroachment agreement
are not underneath the street. In certain Easement areas not relevant to this Encroachment,
primarily to the south and southeast, the City's utilities are located underneath parts of
Butler Avenue.
E. Out of the City's three (3) water and sanitary sewer easement areas identified in Exhibit A,
one (1) will be affected by the construction of the County's new facility. Specifically, the
thirty (30) foot easement, as described below, will be impacted.
Parcel 2 (Part of Tax Parcel 15-2950)
A 30 foot strip of land in the W 1/2 of the NE 1/4 of Section 36, Township 19 North,
Range 16 East, Fifteenth Ward, City of Oshkosh, Winnebago County, Wisconsin
whose centerline is described as follows:
Commencing at the N 1/4 corner of said Section 36; thence N.89°44'53 "E., 988.0
feet along the north line of the NE 1/4 of said Section 36; thence S.01°22'53.4"E.,
26.48 feet more or less to a point on the south line of County Road "Y" also being
the true point of beginning; thence S.01°22'53.4"E., 1826.62 feet.
September 12, 2019 2
F. The County's development of its new facility will require the construction of two (2)
driveway aprons ("Encroachment") over part of the City's thirty (30) foot easement.
Generally, the construction or installation of a structure or permanent feature within an
Easement requires that the holder of that Easement grant permission before the
encroachment may be constructed. The driveway apron Encroachments are described as
follows:
A 30 foot strip of land in the West 1/2 of the Northeast 1/4 of Section 36, Township
19 Nort1i, Range 16 East, Fifteenth Ward, City of Oshkosh, Winnebago County,
Wisconsin whose centerline is described as follows:
Commencing at the North 1/4 comer of said Section 36; thence N89°44'53"E,
988.0 feet along the north line of the Northeast 1/4 of said Section 36; thence
SOl'22'53.4"E, 26.48 feet more or less to a point on the south line of County Road
"Y" and the centerline of a 30 foot sanitary sewer and water main easement as
described in Document No. 947157; thence SOl °22'S3.4"E,1341.63 feet along said
centerline to the point of beginning of Encroachment Area A; thence continuing
SOl°22'53.4"E, 60.00 feet along said centerline to the termination point of said
Encroachment Area A.
Also,
A 30 foot strip of land in the West 1/2 of the Northeast 1/4 of Section 36, Township
19 North, Range 16 East, Fifteenth Ward, City of Oshkosh, Winnebago County,
Wisconsin whose centerline is described as follows:
Commencing at the North 1/4 comer of said Section 36; thence N89°44'53"E,
988.0 feet along the north line of the Northeast 1/4 of said Section 36; thence
SO1 °22'S3.4"E, 26.48 feet more or less to a point on the south line of County Road
"Y" and the centerline of a 30 foot sanitary sewer and water main easement as
described in Document No. 947157; thence S01°22'53.4"E,1478.85 feet along said
centerline to the point of beginning of Encroachment Area B; thence continuing
SOl°22'53.4"E, 85.00 feet along said centerline to the termination point of said
Encroachment Area B.
G. The Encroachment Areas and their locations are identified on Exhibit B, which is
incorporated into this Agreement.
H. The City grants permission to the County for the requested Encroachments into the City's
sanitary sewer and water main Easement provided: 1) the Encroachment constructed is
materially the same as the Encroachment requested; 2) it is clear that the City's easement
rights supersede the County's Encroachment rights; and, 3) this Encroachment is subject
to the terms and conditions identified or referenced in this Agreement.
I. The City's permission for the Encroachment is contingent upon the initial, and continuing,
compliance with all applicable local, state, and federal statutes, codes, ordinances, and
rules.
September 12, 2019
J. The County is solely responsible for constructing, maintaining, repairing, and replacing the
Encroachment. The City's permission and approval of this Encroachment is not meant to
state or imply that the City guaranties, warranties, or acquires any responsibility for the
short and/or long-term stability and safety of the Encroachment. The Encroachment is and
always remains the sole responsibility and liability of the County.
K. The County acknowledges and agrees that City's public utilities and public facilities within
the Easement are subject to ongoing operation, maintenance, repair, and replacement, as
well as the potential installation of new or additional facilities that are allowed by the terns
of the Easement. To that end,
The City understands that the Encroachment is part of the driveway allowing access
to a County facility. Therefore, the City will provide the County with reasonable
advance notice of any City repairs or activities that affect the Encroachment Areas.
In the case of an emergency affecting the Encroachment Areas, the City may
proceed to alleviate the emergency situation without notice, but shall notify the
County as soon as practicable.
2. The City will cooperate and help coordinate any disruptions of access into the
County facility through the Encroachment Areas. However, the County is
responsible for costs and logistics related to removing or otherwise protecting the
Encroachment, or rerouting access as affected by any public maintenance, repair,
or replacement projects or activities within the Encroachment Areas. The City will
not be -responsible for any costs related to the disruption, removal, or repair of the
Encroachment.
3. The parties agree to work together and coordinate actions necessary to facilitate
and/or accommodate any planned construction, maintenance, repair, or
replacement of public utilities or Encroachment within the timeframe of the
anticipated work.
4. The City will grade, re -seed, and install any erosion mats as required or necessary
for those areas disturbed by the City related to its use of the Easement. The City
shall be responsible for repairing and/or replacing the improvements within the
Encroachment Areas that are disrupted by the City related to the City's use of the
Easement.
L. Due to the nature of this Agreement, the County is not eligible for, and specifically
disavows, any right to receive compensation of any kind for the removal, alteration, or
limited accessibility, in whole or in part, whether temporary or permanent, of the
Encroachments.
M. The City acknowledges the County's investment in improving the surface of the Easement
Property through its improvements within the Encroachment Areas. The City also
acknowledges the fact that some or all of the surface improvements may be the result of
City zoning requirements for the County Property. Despite being a remote possibility, both
parties acknowledge that at some point in the future, the City's Easement for public utility
uses may conflict with the County's use of the Encroachment Areas as allowed in this
September 12, 2019
Agreement. Such conflicts or anticipated conflicts will likely have a significant lead time
to allow a negotiated resolution to accommodate each party's interests. The City agrees to
consult with the County and in good faith assist with any approvals or changes necessary
to ensure the continued access and functioning of the County facility on its Property. Both
parties agree to act in good faith to resolve any issue that is required to allow the City to
Properly operate and maintain its public utilities and facilities. To that end, the following
issues may in the future adversely affect, or limit, the County's use of the Encroachment
Areas:
1. The City determines that the Encroachment adversely affects the functioning of the
Public utilities in the Easement;
2. Additional encroachments are added, or the existing Encroachment is materially
expanded, without permission from the City;
3. Local, state, or federal rules, laws, or guidelines relating to any public facility
located in the easement, or any other local, state, or federal law prohibit the
continued location of the encroachments;
4. The County fails to property maintain, repair, or replace the Encroachment; or,
5. Any other lawful reason or circumstance.
N. The County 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 County 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.
0. The County's responsibilities and liabilities pursuant to this Agreement extend to other
Persons, contractors, and agents performing work on the County's behalf that are related
to the Encroachment.
P. This Agreement is solely for the benefit of the City and the County, and it is not intended
to benefit any third party.
Q. The decision to enforce or not enforce, as well as the timing of enforcement, shall be at the
discretion of each party and such decision shall not act as a waiver of any rights to exercise
any right relating to the Encroachment in the future.
R. Both the City and the County benefit from certain immunities and limitations of liability.
This Agreement shall incorporate and adopt all immunities and limitations on liability
provided to counties and municipalities within the Wisconsin Statutes, regardless of
whether a claim is based upon contract, tort, or other theory.
S. This Encroachment Agreement shall inure to the benefit of, and be binding upon, these two
parties. To the extent that the County rents or leases the Property, the County shall remain
responsible for its obligations described in this Agreement even though the actions are
taken by tenants or are related to any tenancy.
September 12, 2019
T. This Agreement may be recorded with the Winnebago County land records for notice
Purposes only. The action of recording this Agreement shall not imply the conveyance of
any interest in land. This Agreement shall expire upon the conveyance of any interest in
that part of the Property that benefits from the Encroachment AreasIn the nthart
of the Property benefitting from the Encroachment Areas is divided an. evet at p
d conveyed to others,
then any future owner of that new parcel shall be required to obtain their own
Encroachment Agreement with the City. The City's potential encroachment agreements
with future owners of the Property or new parcel shall not be unreasonably denied,
provided the Encroachment remains substantially the same as described in this Agreement,
and other conflicts described or inferred in this Agreement are not present.
[SIGNATURE PAGE FOLLOWS]
September 12, 2019
Dated this_L day of 2014
WINNEBAGO COUNTY
By.
IINName) _CYocvrivc
(Pent (Print Title)
STATE OF WISCONSIN )
WINNEBAGO COUNTY � ss.
Personally came before me this1-0
—A_ day Of a:� ua=fs4 20, ,the above -named
Mar ! ff� to me known to be the person (who executed the foregoing
document and akaxcledgeyd the same.
AR v
°YET
Notary yy Pub iQta%ef Wisconsin
AyL�RR ! My Commission expires:_
s
By. 4?16�
And:
Toh ranager gene rignnty erk
Ass star t City Masser An ela fir!' I
STATE OF WISCONSIN 9 �oecKel
WINNEBAGO COUNTY ss.
Personally carve before me this ih 2-°
7bre
�day of M a� 2014 dieabove-named
au
i �c ; , ; t„0.e1 J cic p eac�t3' of Oshkosh, a
ai co oration o me owntinstrument, and
known to be such officers ofy executed the
ing instrument as such officers as the deed of s ' corporation, by its suthoriiy.
State o isconsin
My Commission expires: 12l�
September 12, 2019
EASEMENT
THIS INDENTURE, MADE THIS 95
Q.r
COUNTY, GRANTOR, and the CITY OF OSHKOSH, a municipal9 corpo atiioon, ]loEa d in
Winnebago County, Wisconsin, GRANTEE,
WITNESSETH:
IN CONSIDERATION of the sum of One Dollar ($1.00) and other good and valuable
consideration paid by Grantee, the receipt of which is hereby acknowledged, the Grantor does
hereby give and grant unto the Grantee, its successors and assigns, an easement in, under and
Over the land hereinafter described, including the right to enter upon said land for the purpose
Of construction, maintaining, repairing and operating thereon a sanitary sewer, and water main,
over and through and upon that certain tract of land situated in the City of Oshkosh, Winnebago
County, Wisconsin, and described Rs follows:
Parcel 1 (Part of Tax Parcel 15 2950)
A 40 foot strip of land in the NE 1/4 of Section 36, Township 19 North, Range
16 East, Fifteenth Ward, City of Oshkosh, Winnebago County, Wisconsin whose
centerline is described as follows:
Commencing at the N 1/4 corner of said Section 36; thence N. 89" 44' 53" E., 896.23
feet along the north line of the NE 1/4 of said Section 36; thence S. 01" 16' 43.3" E.,
26.63 feet more or less to a point on the south line of County Road "Y" also being the
true point of beginning; thence continuing S. 01" 16' 43.3" E., 1179.70 feet; thence S.
510 14' 59.2" E., 58.37 feet; thence S. 01" 28' 23" E., 592.16 feet; thence S. 640 58'
04.6" E., 443.30 feet; thence S. 72019' 54" E., 385.43 feet; thence S. 76" 54' 44.6" E.,
331.85 feet more or less to the westerly right-of-way line of the Fox River Valley
Railroad.
Parcel 2 (Part of Tax Parcel 15 2950)
A 30 foot strip of land in the W 1/2 of the NE 1/4 of Section 36, Township 15
North, Range 16 East, .Fifteenth vard, City of Oshkosh, 5?'in .cbago County,
Wisconsin whose centerline is described as follows:
Commencing at the N 1/4 comer of said Section 36; thence N. 89" 44' 53" E., 988.0
feet along the north line of the NE 1/4 of said Section 36; thence S. 01" 22, 53.4" E.,
26.48 feet more or less to a point on.the south line of County Road "Y" also being the
true point of beginning; thence S. 01" 22' 53.4" E., 1826.62 feet.
Parcel 3. (Part of Tax Parcel 15 2950)
A 20 foot strip of land in the SW 1/4 of the NE 1/4 of Section 36, Township 19
North, Range 16 East, Fifteenth Ward, City of Oshkosh, Winnebago County,
Wisconsin whose centerline is described as follows:
Commencing at the N 1/4 comer of said Section 36; thence N. 89" 44, 53" E., 896.23
feet along the north line of the NE 114 of said Section 36; thence S. 01" 16' 43.3" E.,
1206.33 feet, thence S. 510 14' 59.2" E., 58.37 feet; thence S. 01" 28' 23" E., 592.16
Exhibit I� lvf-3
feet to the true point of beginning; thence S. 76" 45' 52.1" W., 369.28 feet more or less +3
to the east property line of the Winnebago County Community Park.
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 Grantee obligates itself to pay to Grantor, its successors. and assigns, all actual
damages caused by reason of the installation, operation, repair, or removal of said sanitary
sewer, water main and laterals through said property,
IT IS FURTHER MUTUALLY AGREED that no building, tree or other substantial or
permanent structure shall be placed upon said property by the Grantor.
The Grantee hereby 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 has hereunto set its hand and seal the day and
year first above written.
WINNEBAGO COUNTY
sy:gzVea
+--�
County Executive
And ,'C C-C�
STATE OF WISCONSIN)
) as.
WINNEBAGO COUNTY )
Personally came before me this 7� day of (9/r(%A4 f) 1995,
tao�.p /)..Sfwn.I�.P.rPP.�) and c .,,,u�PAI u�k �� , of.-WINNEBAGO
C NTY, to me known to be such persons and officers, who executed the foregving'iilstnunent
and acknowledged that they executed the same as such officers by its aud4K for the purpose
therein contained.
This instrument drafted by:
Attorney Warren P. Kraft
Oshkosh, WI 54902-1130
Notary
My Co
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Mating: P.O.BOX 1025 NEENAH, WI 54957-1025 P
McMAHON ASSOCIATES, INC. Tel: (920) 751-4200 Fax: (920) 751.4284
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