HomeMy WebLinkAboutEncroachment Agreement 12-1997-0000 2750 Vinland P r �8798941
Tx:4598795
DOC# 1878193
Encroachment Agreement NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
RECEIVED 03/21/2022 11:31 AM
RECORDING FEE: 30.00
PAGES: 14
MAR 2 9 2022
CITY CLERK'S OFFICE
Recording Area C- OZ4y
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,WI 54903-1130
91219970000
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska,Deputy City Attorney
• City of Oshkosh,Wisconsin
•
December 29, 2020 1
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh ("City") and 2750 Vinland, LLC
("Property 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.
A. The Property Owner is the fee owner of Tax Parcel Number 91219970000 ("Property"),
which is approximately 35 acres in size and is currently used for manufacturing or other
commercial or industrial purposes. The Property is more particularly described as follows:
Legal Description attached as Exhibit A
B. The size of the Property has allowed the Property Owner to develop multiple buildings in
varying locations throughout the property for the purposes of furthering commercial uses.
The Property Owner wishes to further develop the property by constructing buildings,
structures, infrastructure, or other facilities that will enhance the value and efficiencies of
businesses operated on the Property.
C. The design and site plan for the Property Owner's new buildings,structures,infrastructure,
or other facilities impacts the City's municipal utilities located within two Easements on
the Property,which has resulted in the need for this Agreement.
D. The City benefits from one (1) Easement through the Property which allowed the
installation and operation of facilities for the City's public sanitary sewer system. The
Easement allows sanitary sewer service to the Property as well as other adjacent properties
west of the Property. The Easement Agreement is dated June 12, 1981, and recorded with
the Winnebago County Register of Deeds on June 24, 1981 as Document Number 565215.
The Easement was amended in 2021 to include a small triangular area where the
installation of the original sanitary sewer pipe deviated from the Easement boundaries. All
referenced in this Encroachment Agreement that refer to the Easement, will include the
Easement as amended. The Easement agreement is attached hereto as Exhibit B and its
terms incorporated into this Agreement.
E. The Property Owner's substantial construction activities include buildings, structures,
infrastructure,and other facilities will be taking place throughout the 35 acre Property. The
construction or installation of a buildings, structures, infrastructure, or other facilities that
may interfere with or limit the use of the City's Easement requires the City's approval and
permission before the encroachment may be constructed. The known Encroachments into
the City's Easements are listed below,and are generally identified on the site plan attached
hereto as Exhibit C.
1. Dumpster
2. Trash compactor
3. Loading dock
4. Asphalt/pavement areas for turning and miscellaneous purposes
5. Parking
6. Drive aisles
7. Curb and sidewalk
8. Ornamental grass/perennials/grass
December 29, 2020 2
9. ADA handicapped bollard sign
10.ADA ramp/detectible warning field
11. Storm water drainage swale
12. Hydrant
13.Trench drain/trench drain outlet
14.Non-fixed loading dock raised platform, subject to the condition that its function
and construction is submitted in advance to the City for approval. Included in this
condition is the requirement that this particular encroachment cannot be
permanently secured in any way to the pavement area within the Easement and is
able to be relocated outside of the Easement in the event the City's use of the
Easement requires its temporary relocation.
F. The City notes that the Property Owner will also be removing the following, existing
encroachments: 1) 12 inch and 24 inch storm water pipes; and,2) storm water structures.
G. The City grants permission to the Property Owner for the requested Encroachments into
the City's sanitary sewer Easement provided: 1) the Encroachments constructed are
materially the same as the Encroachments requested;2) it is clear that the City's Easement
rights supersede the Property Owner's Encroachment rights; and, 3)this Encroachment is
subject to the terms and conditions identified or referenced in this Agreement.
H. The City's approval and permission for the Encroachments are contingent upon:
1. The initial, and continuing, compliance with all applicable local, state, and federal
statutes, codes, ordinances, and rules;
2. The continuing compatibility with the City's facilities within the Easement; and,
3. The Encroachments shall not prevent or limit the City's use of the Easement or add
to the City's cost of using the Easement for all lawful uses.
I. The Property Owner is solely responsible for constructing, maintaining, repairing,
replacing,and moving,if necessary,the Encroachments. The parties acknowledge that the
Property Owner will be renting, leasing, or otherwise allowing others to use the Property.
In all cases, the Property Owner's obligations to the City as described in this Agreement
shall remain the Property Owner's obligations,regardless of Property Owner's agreements
with third-parties.
J. The Encroachments are and will always remain the sole responsibility and liability of the
Property Owner. The City's permission and approval of the Encroachments 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. Similarly, the City's
permission and approval is not meant or intended to result in the City's acceptance of
additional costs or burdens associated with the use of its Easement or of its waiver of any
rights to seek reimbursement or compensation to the extent caused by the Encroachments.
December 29, 2020 3
K. The Property Owner 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 terms of the Easement. To that end,
1. The City will always provide notice to the Property Owner or the Property Owner's
designated representative. It will always be the sole responsibility of the Property
Owner to notify any tenant of the Property, or any other person with the right to be
on the Property of activities of the City. The City will make efforts to contact
known tenants or lessee's,but is not obligated to do so.
2. The City will provide the Property Owner 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 Property Owner as soon as
practicable.
3. The City will cooperate and help coordinate any disruptions of the Property
Owner's facility due to work within the Easement to the extent it is reasonably
practical. However, the Property Owner is responsible for costs and logistics
related to removing, rerouting, and replacing, or to otherwise protect the
Encroachments, as affected by any lawful public maintenance, repair, or
replacement projects or activities affecting the Encroachments.
4. The City will not be responsible for any costs related to the disruption,removal, or
repair of the Encroachments, whether incurred by the Property Owner, or by any
tenant, lessee, or other Iawful user of the Property. The Property Owner will hold
the City harmless from any claim of any tenant, lessee, or other lawful user of the
Property for any lawful action taken by the City within the Easement, excepting
damages caused by the willful or malicious actions of the City. The Property
Owner shall indemnify the City against any claims, losses, costs, or damages
incurred by the City originating from any tenant, lessee, or other lawful user of the
Property that is related to the City's lawful use of its Easement.
5. 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 Encroachments within the timeframe of the
anticipated work.
6. The City will grade, re-seed, and install any erosion mats as required or necessary
for those areas of grass disturbed by the City related to its use of the Easements.
However,the City shall not be responsible for repairing and/or replacing any other
Encroachment that is disrupted by the City related to the City's use of the Easement.
L. Due to the nature of this Agreement, which is particular to this Property Owner and is not
a property right,the Property 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 Encroachments.
December 29, 2020 4
•
M. The City acknowledges the Property Owner's investments in the Property. However,both
parties acknowledge that at some point in the future,the City's Easement for public sanitary
sewer utility uses may conflict with the Property Owner's permitted Encroachments. Such
conflicts or anticipated conflicts will likely have a significant lead time to allow a
negotiated resolution to accommodate each parry's interests. The City agrees to consult
with the Property Owner and in good faith assist with any approvals or changes necessary
to ensure the continued access and functioning of the Property Owner 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 Property Owner's
Encroachments:
1. The City determines that the Encroachments adversely affects the functioning of
the public utilities in the Easements;
2. Additional encroachments are added, or the existing Encroachments are materially
expanded,without permission from the City;
3. Local, state, or federal rules, laws, or guidelines relating to any public facility
located in the Easements, or any other local, state, or federal law prohibit the
continued location of the Encroachments;
4. The Property Owner fails to property maintain, repair, or replace the
Encroachments; or,
5. Any other lawful reason or circumstance.
N. The Property 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 Encroachments, excepting damages caused
by the willful or malicious actions of the City. The Property Owner shall protect and hold
the City of Oshkosh harmless and indemnifies against all actions, claims and demands of
any kind or character whatsoever which are related to the Encroachment.
•
O. The Property Owner's responsibilities and liabilities pursuant to this Agreement extend to
other persons, contractors, and agents performing work on the Property Owner's behalf or
authorized by the Property Owner that are related to the Encroachment.
P. This Agreement is solely for the benefit of the City and the Property Owner, 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 Encroachments in the future.
R. Both the City and the Property Owner 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.
December 29, 2020 5
•
S. This Encroachment Agreement shall inure to the benefit of,and be binding upon,these two
parties. To the extent that the Property Owner rents or leases the Property, the Property
Owner shall remain responsible for its obligations described in this Agreement even though
the actions are taken by tenants or are related to any tenancy.
T. This Agreement may be recorded with the Winnebago Property Owner 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 by
the Property Owner of any interest in that part of the Property that benefits from the
Encroachment Areas. In the event that part of the Property benefitting from the
Encroachments is divided and 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 Encroachments remain substantially the same as
described in this Agreement, and other conflicts described or inferred in this Agreement
are not present.
,1
Dated this 2 i day of Fe I I 1 vil ,202'l.
SIGNATURE PAGE FOLLOWS
December 29, 2020 6
2750 VINLAND C
•.`RS CH6,
By -- - r F,•5> .
Arthur Dumke, Managing Member :O PRY
..�0','`G . -
pv�`' oz -
STATE OF WISCONSIN ) ,�'.T4'TE pF `\;••
) ss.
WINNEBAGO COUNTY )
Personally came before me this Z /`�day of f e b -„ , 202Y, the above-named
Arthur Dumke, to me known to be the person who executed the foregoing document and
acknowledged the same. /
No' ublic, State of Wiscons
My Commission expirm % it'.4vf^a-°,---A-
CITY OF OSHKOSH ` "-` -
By: �`/-:-- /C/I� __.._.And:
Mark A. Rohloff, City Manager Pam R. 1,1brig, City Clerk —
jessi L. Ba.ICol, _
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY ) 1 y�
Personally came before me this 14 day of kl(IYCIh ,2021,the above-named
Mark A. Rohloff, City Manager, and P 13 R. [J}��,�,v City Clerk, of the City of Oshkosh, a
municipal corporation,to me known to be the persons w fio 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 outlaw*. ._ `'-, ,/111 iitikla-1 t'''' ', -1:: 'I:- \ ?211
, , ,,,
Notary Public, State of Wis rising':',, `-'.
My Commission expires: ill )5 ,Q 9 ,^,`G
December 29, 2020 7
I ,
• - Legal Description;
Parcel:
•
Nacto,One-hair of the South 000100 the NOI*094.-quarlAr of the:Northeast:Quarter I I
(prib,of theiS V4.of NW¼ of the:NE V4of SeOttOrvEleVelit(11L)*.,.TOwnshlta Eighteen'
moth, Range Sixteen (15) East,In the Twelfth Ward, in the ctio,of eshkosiv Winnebago I l•
County,Wisoorion:: 1
The South acres of the North 044.alf Of the Narthweet:Quarter of the.Northeast Quarter I
los,Otte...NW.tv.of the NE N.or$egago.Eitiven-1111 TOwnship.Eighteart-081 North,
Renge. htteen.•:.(3,6) East,;in the Twelfth Warid,„In the City of OstikoshrWinnehato.Coatity,
INISoOtrain).excepting therefrom the NOrttiZafeet..1'the Weet.381.feefthereOkkgSq.a
part or 4le-NOirthrOt'Qto.ftgrOrt00 Northeast clu,04r4(NW*ef•t110 NElit)of SectionEleven (13),..Township Eighteen,;(p) North, Range Sixteen 00,00,140in described by
Commencing'etilte..North,QuOgOtti‘t corner of said'Section Elkqeft,;(1,3..); thence Spottt,.
00eleg. 07 Orr.21 sec. EaS401..8.44;Neto.gong the. 11.0a.of,the.Noritheast Quarter(NE
.
10)of.saidsodiOrt.Elave4(1.1),to the Southwest corner of land described In.the Winnebago
Counts of Peels OlPte as Doc..-110.4.59414.,and true pointeflieg,InnfriK theAce•
oantinUeAntith,00 deg.,07 mini..21 sec., East:4844.feetr.along the westilire of the
NOrtheeekgeartar t14)of said Scetlon Eleven 6344 thence North 39 mja..3g sec.
Esp 3814 40;:ritli000kNottoitlitet6.07 enihk.21..SOO.WOOt.:40;::.641 feetet011ie:Southedsb
corner of tends tieScribeti.ittggin. No..45911,41,,thento.goutfr89.dag...4,min.,..az.aK,West
881.00'feet,along the South line of lands.described In Doe. No..4591.14 to the true point,of
beginning..
The
, .
Th.kiltiq.rth:sOnetheir Of the 1.4.0thiiimet,.4atieter of the quarter.(N'Vic Of the-.NW...1Akof
the NE of Section'Eleven (1-1;)iTbillthitlIPT,i8t0en tiONOItt)t.gar0e.Sixteen MI-east/
In UAW/44th-W014.In the eltsir-Of Ositkosh,!Wieheha00,-Cataity„WiSoOnsin* excepting-
theretl,Orn.'the-sOOth,',4:04-0,thereof,.240 rutthet 44000000 tharefi•Onithe,EniAt 185-feet,„
front and.)ear-, of the North 388 feet,.front and rear, ethic West 381feet.tiler**
The:West One-half of the Northeast.quarter:of the Northeast C2earter Wetttie NE¼Of
the.Ng..144.of:Sectic0.aeitert.(*A.TIOWASblp Eighteen•(1.4 North,.Range Sixteen tig got,In F
the Twelfth Ward,In the City of crehtteShkWinnehatto.cOtntriWisconsin,excepting
•therefrom y the East 330 feet.of the South-gpos-feetiberett and farther excepting therefrom,
that portion thereof described as tIollows;. Ornateming at the-Northeast corner of said
5ecticn; thence South 01 deg.37 miti. 68. Set-East along the East line efeetartNartet 1
Section:330:SSfee4 thence souttl 88 deg.45 rein. 05set,West•39:69leeti#0.2polht on
the west llrie of 40,itsert.:SkteOti VletiOe 00010:4114$0401:88 deg,45 ininv-0§,Se4 West
vio*the glsiqi iii*Of1.40 one(1)4.-Certified Survey Rao.No...ZOO,818.21 feet to
Southwest corner of said tat One 011 thenqk,Eouth•37,.tieg, 2 mm . 28 sec. We4.$00.09feet to , .
1 !
the point of beginning.of tbe.parcel to be desctiberll thence tontinUing South-xa:deg,. • I
i
27 MIn...28 sac.West 49%18 feet to a:-paint that is 504efieet.East Of the West.line,of the
- 1
Northeast-Quarter of the'NorthOest.Quarter 4NE¼ of the N5'.1n OF said.SactiOrrptf)erii;e
:Smith 01.deg. 21.0th.10;sac, ga4.00-0001101 Witfrea4..West4000.0.,feet toe pot on. • I
-the South line of OW Northeast Quarter of the quarter 0E14 of the NE::VT i
thence North 88 deg. 45 MIn...O5.sec:East along said line,27%32.feetr thence,Werth 01 1
deg.;:75 min...31,seel Wett 490.44.feet to;the point of beginning'. I
Tex ParcelNo. 94- -1997
I
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EXHIBIT A-Page 1 of 1 • !
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EXHIBIT B(1 of 4)
EASEMENT
THIS INDENTURE, made this 12th day of June , 1981, by
PLUSWOOD INDUSTRIES, INC., 1145 Oshkosh Avenue, Oshkosh, Wisconsin
Grantors, and the CITY OF OSHKOSH, a municipal corporation located
in Winnebago County, Wisconsin, Grantee,
WITNESSETH:
IN CONSIDERATION of the sum of One Dollar ($1.00) and other
good and valuable consideration paid by the Grantee, the receipt
of which is hereby acknowledged, the Grantors do 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 constructing,
maintaining, repairing and operating thereon a sanitary sewer,
over and through and upon that certain tract of land situated in
the City of Oshkosh, Winnebago County, Wisconsin, and described as
follows:
The west 30 feet of the South 950.89 feet of the NE 1/4 of
NE 1/4 of Section 11 T18N, R16E;
Also the north 25 feet of the south 950.89 feet of the east
933.29 feet of the NW 1/4 of NE 1/4 of Sec. 11, T18N, R16E;
Also the North 25 feet of the south 925.89 feet of the west
60 feet of the east 933.29 feet of the NW 1/4 of NE 1/4 of Sec.
11, T18N, R16E;
Also the north 10 feet of the south 925.89 feet of the east
60 feet of the NW 1/4 of NE 1/4 of Sec. 11, T18N, R16E,
All being in the Twelfth Ward, City of Oshkosh, Winnebago County,
Wisconsin.
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 Grantors, their successors and
assigns, all actual damages caused by reason of the installation,
operation, repair, or removal of said sanitary sewer for installation
and construction of a subsequent sanitary sewer 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 Grantors.
EXHIBIT B(2 of 4)
- -2-
IT IS FURTHER MUTUALLY AGREED that should the Grantors desire
to hook on to said sanitary sewer, their assessment shall be equal
to the assessment rate effective in the City of Oshkosh on the
date of the granting of this easement, which rate is 05 per square
foot or $6.00 per running foot.
The Grantee hereby releases the Grantors from all debts,
claims, demands, damages, actions and causes of action whatsoever
which may result from said easement heretofore granted by ,Grantors,
and further agrees to hold the Grantors free and harmless from any,
claim for damages which may be made by reason of damages or injury
to persons or property connected therewith.
Should Grantors herein request the manhole casting to be lowered
below ground grade, then the Grantee shall do so at no- cost to Grantors.
IN WITNESS WHEREOF, said Grantors have hereunto set their
hands on the day and year first above written.
WITNES D BY: PLUSWOOD INDUSTRIES JNC.
'�� /."- ,. •Icern //,', 7.--10,,ec.,..--- By: 7_ ., , ,,,, / :. 1 . '/
vZ _! ( bti% President _
> /
By: Gf - ;��i7`:%�--
Secretary-Tr dcurpr ` .
STATE OF WISCONSIN)
SS.
WINNEBAGO COUNTY)
Personally came before me this ]2th day of ,T„nP , 1981, the
above named Franz L. Boschwitz, its PrPcir1Pnf , and
Anne Boschwitz , its Secretary-Treasurer , for
, FLusw000. ivi us 'r.ri s•'iht'.' '1tfiodin"td'be the bersuns who -..ocuted the
foregoing instrument and acknowleged same.
..NIjI:1-„`.
e.ua ro 4,';''ti
¢ N�rAy: N 1 ewh. "-Jr...4.i\
NOTARYUBLIC
5 ,p'; _. 1�`�� Sri.d Winnebago County, State of Wisconsin
`,_`� ,,q•,V D L c�8 �1 •
My CommissionX4XXNX7C4�XXi.s permandit
i `,'PH . 1 4:4iENT DRAFTED BY
JOLi11 i•."•HENCE, OSHKOSH CITY ATTORNEY
-2-
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EXHIBIT B(3 of 4)
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EXHIBIT C-Page 2 of 2 I