HomeMy WebLinkAboutEncroachment Agreement 775 Weatherstone Dr PIN #912-1975-0200 1111111111111111111
8730850
Tx:4545572
DOC# 1858267
NATALIE STROHMEYER
Encroachment Agreement REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
Document Number RECORDED ON:
07/26/2021 10:20 AM
RECEIVED RECORDING FEE: 30.00
PAGES: 10
AUG 0 9 2021
CITY CLERK'S OFFICE
Recording Area
�Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,WI 54903-1130
91219750200
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
July 02, 2021 1 11)<.
4
of 40e 1‘°3
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ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh(City),and Paul D.Edison-Swift and Susan
E.Edison-Swift(collectively"Owner"). The parties enter into this Agreement for$1.00 and other
good and valuable consideration as described in this Agreement,the sufficiency and receipt of which
is acknowledged.
1) The Owner is the fee owner of Property identified as tax Parcel Number 91219750200 and
commonly known as 775 Weatherstone Drive. The Property is more particularly described as
follows:
Lot Two (2) in WEATHERSTONE PLAT, in the Twelfth Ward, City of
Oshkosh, Winnebago County, Wisconsin.
2) The Property is located in the Weatherstone Plat subdivision,which was recorded with the
Winnebago County Register of Deeds on March 31,2003,as Document Number 1239543. The
subdivision plat is attached as Exhibit A. The subdivision plat created a Drainage Easement
benefitting the City along the Property's south lot line.
3) The subdivision plat also included a covenant that required that all lots within the subdivision
comply with the City's grading and drainage plan for the subdivision. A small scale copy of the
grading and drainage plan is attached as Exhibit B. A large scale copy of the grading and
drainage plan can be viewed at the City Department of Public Works. The grading and drainage
plan identifies storm water flowing over and through the Drainage Easement area along the south
lot line of the Property.
4) The existence of this Drainage Easement along with the identified drainage pattern within
that Easement limits the use of the Property within this area so that water drainage is not
adversely affected.
5) The previous owners of the Property obtained permission from the City to Encroach into the
Drainage Easement with a metal fence. The permitted Encroachment was memorialized in an
Encroachment Agreement that was recorded with the Winnebago County Register of Deeds on
December 23, 2015, as Document Number 1704001. The 2015 recorded Encroachment
Agreement included terms,similar to those in this current Agreement that automatically revokes
City permission when the Property is conveyed to a different owner. The board on board fence
previously installed therefore exists without permission from the City.
6) The Owner requests to reinstate the permission for the existing board on board fence in the
Drainage Easement, and also proposes installing a metal fence within and across part of the
subdivision's Drainage Easement. The metal fencing would be installed in a manner
substantially conforming to the location and description as identified in Exhibit C, which is
attached to this Agreement.
7) No structure or object is allowed to encroach into or obstruct the City's Drainage Easement
without the City's permission.
July 02, 2021 2
8) The City has reviewed the Owner's request to reinstate permission for the staggered board on
board fence, and to construct a metal fence that Encroaches into the Drainage Easement. The
City will allow the placement of the fence subject to the terms of this Encroachment Agreement.
A material component of this Agreement is the explicit understanding that the City's permission
allowing an Encroachment does not create or give any property right. This allowed
Encroachment is personal to the Owner and is completely revocable by the City.
9) The Encroachment as constructed must be materially similar to the design and specifications
submitted for the City's approval,which is attached as Exhibit C.
10) The City's permission for this Encroachment is contingent upon the initial and continuing,
compliance with statutory and common law easement rights and all applicable local, state,and
federal codes and rules. Codes and rules include setbacks, fencing, zoning, property
maintenance,permitting, and public nuisance.
11) The Owner is solely responsible for the installation,maintenance,repair,and replacement of
the Encroachment. The Owner is responsible for identifying accurate property boundaries.The
Owner is solely liable and responsible for any and all personal or property damage caused by the
Encroachment.
12) The City's permission and approval of this Encroachment does nothing more than allow the
Encroachment to be installed. City permission does not mean that it believes that the
Encroachment is unlikely to be damaged or affected by the City's use of the Drainage Easement.
City permission also does not mean that it believes that the Encroachment is unlikely to result in
other property damage or personal injuries that the Owner may be responsible for.
13) The City's storm water drainage facilities within the Drainage Easement is subject to
maintenance,repair, grading, and replacement. To that end,
a) The Owner is solely responsible for removing,or protecting if the circumstances warrant,the
Encroachment if it will be affected by any public or non-public maintenance, repair, or
replacement projects or activities within the Drainage Easement. The City will not be
responsible for any costs related to the disruption or removal of the Encroachment.
b) The Owner is solely responsible for protecting all storm water drainage facilities within the
Drainage Easement from adverse effects related to the existence of the Encroachment.
c) The City agrees to make reasonable efforts to notify the Owner in advance of any inspection,
maintenance,repair, and/or replacement of storm water drainage facilities in the Drainage
Easement.
d) If the Owner elects to remove or otherwise take actions to protect the Encroachment,instead
of the City taking such actions,then these actions must be taken in a manner approved by the
City or any other party with authority to undertake such work, and undertaken within the
timeframe for the anticipated work.
July 02, 2021 3
e) The City shall not be responsible for any damage to the Encroachment, or any structure or
hardware attached to the Encroachment.
f) The City or other party undertaking the work within the Drainage Easement has no obligation
to remove, but shall be allowed to remove, at its sole discretion, the Encroachment in the
event that a project involving maintenance, repairs, and/or replacement requires such
removal or best practices suggest removal.
g) The Owner shall be responsible for reinstalling/reconstructing the Encroachment,if desired,
regardless of who removed the Encroachment.
h) In the event the City or other party with lawful authority is required to remove or protect the
Encroachment for purposes described in this Agreement, the Owner gives the City
permission to enter,access,and alter the Owners'Property at the location of or adjoining the
Encroachment area for the sole purpose of removing or protecting the Encroachment and
only to the extent reasonably necessary to achieve those objectives.
14) Due to the revocable nature of the City's permission and the lack of any property rights
granted in terms of placing the fence within the Drainage Easement,the Owner 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
Encroachment.
15) The City is allowed to revoke its permission for the Encroachment at its sole discretion for
any Iawful reason, including any of the following reasons:
a) The use and/or proper function of the Drainage Easement prohibits the continued existence
and location of the Encroachment,with a particular prohibition described in statutes, court
cases,rules,regulations, or best practices;
b) The continued existence of the Encroachment would limit the intended use of the Drainage
Easement as described within the City's approved grading and drainage plan, with such
determination to be made solely at the discretion of the City;
c) The City determines, at its discretion, that the Encroachment adversely affects the
functioning of Drainage Easement;
d) The Encroachment is increased, expanded, materially changed, and/or moved without the
City's permission;
e) The Encroachment is prohibited by any local, state, or federal rules, laws, or guidelines
relating to any public facility located in the Drainage Easement;
f) The Owner fails to properly maintain,repair,or replace the Encroachment;
g) The Owner fails to provide the City with annual written proof that the Encroachment is
covered by the required insurance.
July 02, 2021 4
16) In the event that the Owner fails or refuses to remove the Encroachment that has either been
revoked,or has otherwise fallen into poor condition or disrepair,the City may,but is not required
to,enter Owner's Property to remove and dispose of the Encroachment at Owner's expense.
17) 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.
18) Accidents and incidents related to the City's use of the Drainage Easement may result in
lawsuits or threats of lawsuits against the City. Therefore, to the extent that an accident or
incident may be caused by the Encroachment,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. 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 permission granted by the City
through this Agreement.
19) At all times that the Encroachment is located in the City's Drainage 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 Encroachment.
The Owner shall annually provide the City with proof of insurance for the Encroachment.
20) The Owner shall be responsible for the actions of the Owner's contractors, agents, or
representatives related to the Encroachment.
21) This Agreement is solely for the benefit of the City and the Owner,and this Agreement is not
intended to benefit any third party.
22) 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.
23) 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. The City does not waive such immunities and limitations
and shall be able to rely on them through this Agreement.
July 02, 2021 5
24) The Encroachment's installation shall not constitute a property right and the City's
permission therefore shall not run with the land. This Agreement may be recorded with the land
records for the purpose of providing notice and clarity of the fact that property rights are not
granted,that subsequent owners and assigns of the Property do not assume any rights under this
Agreement,and the City's rights and authority related to the Drainage Easement are not limited.
25) All parties signing below state that they have the authority to enter into this Agreement
without limitation or restriction.
26) 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. Permission for the Encroachment is
revoked immediately and without notice as of the time that any person or entity other than the
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 related to the existence of the Encroachment with the current or
subsequent Owner.
[SIGNATURE PAGE TO FOLLOW]
•
•
July 02, 2021 6
Dated: //c/a1("21
PROPERTY OWNER:
775 W atherstone Drive .
::17-/------
cam-( J c, r .„, Can -
Paul D. Edison-Swift Susan E. Edison-Swift - --
STATE OF WISCONSIN )
ss. -
WINNEBAGO COUNTY )
Personally came before me this all./.1 day of J U 1 ti ,2021;the above-named Paul D.Edison-Swift and Susan E.
Edison-Swift to me known to be the persons who executed the f regoing document and acknowledged the same.
Not ublic,State of Wiscons'n
My Commission expires: 10 f/faOo.9
CITY OF OSHKOSH ,
6/0.),,v)
By; - And:
M k A. Rohloff, City Manager Pamela R. Ubrig, City Cle
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally came before me this‘3�h day ofJuJ.t3 ,2021,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. - _-
N ary P ' ate of isconsin
My Commission expires: 12416 12A 23 - ` = '
,
i
1
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July 02, 2021 7
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The City of Oshkosh creates and maintains GIS maps and data for Its own use.
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feature from a variety of SOIRCES. These map(s)fdatasets are provided for
inIonnalion purposes only and may not be sufficient or appropriate for legal. Prepared by:City of Oshkosh,WI 01111111EVIATER
engineering.or surveying purposes. They we provided-AS-IS'without warnottes ;
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