HomeMy WebLinkAbout2024-09-09 Encroachment - 3950 Sandhill Court - recordedDocument Number
Encroachment Agreement
CITY OF OSHKOSH
Moo
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
DOC# 1929814
NATALIE ••
• OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
09/09/2024 02:26 PM
RECORDING FEE: 30.00
PAGES: 9
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh, W1 54903-1130
91281190000
Parcel identification Number
August 08, 2024 1
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh (City), and Charles R. Bunton and Amanda
A. Bunton (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 91281190000 and
commonly known as 3950 Sandhill Court. The Property is more particularly described as
follows:
Lot Nineteen (19) in NORTHSHORE PRESERVE PLAT, in the Twelfth
Ward, in the City of Oshkosh, Winnebago County, Wisconsin.
2) The Property was created when the Northshore Preserve Plat subdivision was recorded with
the Winnebago County Register of Deeds on July 3, 2001, as Document Number 1136093. The
subdivision Plat is attached as Exhibit A.
3) The Development Agreement for the subdivision conditioned approval of the Northshore .
Preserve Plat on full compliance with the Municipal Code, including storm water requirements.
The Development Agreement was recorded with the Winnebago County Register of Deeds on
March 15, 2004, as Document Number 1301748, and according to its terms acts as a covenant
attached to all property within the subdivision.
4) The subdivision's covenants related to storm water drainage require compliance with the
City -approved grading and drainage plan. The approved grading and drainage plan includes a
drainage swale along the Property's rear, or western, property line. The approved grading and
drainage plan is attached as Exhibit B.
5) Owner requests permission to install six (6) foot vinyl fence around the Property's rear yard.
Part of the fence will be over and across the designated drainage swale. The location of the
Encroachment into the drainage swale is depicted in the map attached as Exhibit C.
6) Structures or objects Encroaching into the drainage swale will necessarily obstruct the flow
of storm water to some degree, and as a result no Encroachment is allowed without the City's
permission. The City has reviewed the Owner's request and will allow the Encroachment
subject to the terms of this Encroachment Agreement.
7) The City will permit the Encroachment's provided it is installed as proposed, with a material.
consideration being that the bottom of the fence is at least six (6) inches above the surface of the
swale.
8) The Encroachment shall always comply with all applicable local, state, and federal laws and
regulations, including but not limited to those laws and regulations regarding related subjects
including storm water drainage, zoning, setbacks, permitting, building, fencing, property
maintenance, and public nuisance.
9) The Owner is solely responsible for the maintenance, repair, replacement (if allowed), and
removal of the Encroachment, solely responsible for compliance with laws and regulations, and
August 08, 2024 2
solely responsible for any and all personal and/or property damage to the extent the damages
result from the existence of the Encroachment.
10) The Owner is solely responsible for maintaining, repairing, replacing or removing the
Encroachment when necessary. The Owner is responsible for identifying and complying with
property boundaries.
11) The City's permission allowing the Encroachment does not mean that it has no effect or
minimal effect on the drainage swale or the approved grading and drainage plan. The City's
permission similarly does not mean that the Encroachment represents an appropriate long-term
location.
12) The drainage swale may be subject to maintenance, repair, grading, and replacement. To that
end:
a) The Owner is solely responsible for removing, protecting if the circumstances warrant, and
restoring the Encroachment if it will be affected by any public or non-public maintenance,
repair, or replacement projects within the drainage swale. Similarly, Owner is responsible
for making any accommodations or changes that are necessary due to the presence of the
Encroachment. The City will not be responsible for any costs related to the disruption,
removal, protective measures of the Encroachment, or accommodations due to the
Encroachment.
b) The Owner is solely responsible for ensuring the proper functioning of the section of
drainage swale on the Property despite the existence of the Encroachment.
c) In the event that the City is involved with the maintenance, repair, or replacement of the
drainage swale, the City agrees to make reasonable efforts to notify the Owner of these
projects or activities in advance.
d) If the Owner, rather than the City, elects to remove or otherwise take actions to protect the
Encroachment, such actions must be taken in a manner approved by the City, and undertaken
within the timeframe for the anticipated work.
e) The City shall not be responsible for any damage to the Encroachment, or any structure or
hardware attached to the Encroachment.
f) In the event the City or its agent needs protect, work around, or otherwise take actions
related to the Encroachment during any drainage swale project, the Owner grants the City
permission to enter, access, and cross the Owners' larger Property for the sole purpose of
removing or protecting the Encroachment, but only to the extent reasonably necessary to
achieve those objectives.
13) Due to the revocable nature of the City's permission, the lack of any property rights granted
by this Agreement, and ongoing obligations related to the drainage swale, 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 as it relates to the drainage swale.
August 08, 2024 3
14) The City is allowed to revoke its permission for the Encroachment at its sole discretion for
any of the following reasons:
a) The use and/or proper function of the drainage swale prohibits the continued existence and
location of the Encroachment. Use and/or proper function shall be determined based on
statutes, court cases, rules, regulations, and best practices; .
b) The continued existence of the Encroachment would limit or adversely affect the intended
use of the drainage swale and the subdivision's City -approved grading and drainage plan
with such determination to be made solely at the discretion of the City;
c) The Encroachment is increased, expanded, materially changed, improperly replaced, and/or
moved without permission;
d) The Encroachment is prohibited by any local, state, or federal rules, laws, or guidelines
relating to any public facility located in the subdivision and/or approved grading and
drainage plan;
e) The Owner fails to properly maintain, repair, or replace the Encroachment;
f) The City receives notification that a dispute between the Owner and another property owner
has resulted in the required removal of the Encroachment; and,
g) The Owner fails to provide the City with annual written proof that the Encroachment is
covered by the required insurance.
15) In the event that the Owner fails or refuses to remove the Encroachment after permission has
been revoked, the City may, but is not required to, enter Owner's Property to remove and dispose
of the Encroachment at Owner's expense.
16) 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.
17) Both parties understand and agree that accidents, incidents, and circumstances related to the
drainage swale 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, and to the extent caused by 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.
18) At all times that the Encroachment is located in the drainage swale, 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
August 08, 2024 4
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.
19) 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. The Owner shall be
primarily responsible for the actions of the Owner's contractors, agents, or representatives.
20) This Agreement is solely for the benefit of the City and the Owner, and this Agreement is not
intended to benefit any third party.
21) 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.
22) 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.
23) The City's permission is personal to the Owner and shall not constitute the granting of a
property right and shall not attach to, or run with, the land. Permission shall not alter or waive
any obligation to comply with the City's storm water requirements, including compliance with
the Municipal Code and the approved grading and drainage plan. Permission is completely
revocable by the City. This Agreement may be recorded for the purpose of providing notice
personal nature of this Agreement and the City's ability to revoke its permission.
24) All parties signing below state that they have the authority to enter into this Agreement
without limitation or restriction.
25) The City's permission 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. For clarity
purposes, if one of the two individuals identified as Owner is no longer a fee owner of the.
Property but the second individual continues to own the Property, then this Agreement will
continue with the second individual identified as Owner continuing to have assumed all
obligations of this Agreement. The introduction of any new individual as Owner requires a new
Agreement. The City reserves the right to take all lawful enforcement actions against any new
owner of the Property that does not enter into their own Encroachment Agreement. Any delay
in the City's enforcement of this Agreement shall not adversely affect its right to pursue
compliance with the Owner or others subject to enforcement efforts. 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.
August 08, 2024
PROPERTY OWNER:
,`,,,,NIII III ,1►,,,,
Np,(�a},-dhill Court
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C ar14s R= Bunton
A -
U' ' V %TT)a'' *ISCONSIN )
OF SAGO COUNTY )
,,\OTAIY .
Amanda A. Bunton =
AUB OC'
OF WISG 1110`•
Personally came before me this day of S 2024, the above -named
Charles R. Bunton to me known to be the person who executed the egoing document and acknowledged
the same.
Notary Public, State of Wiscons'
My Commission expires: 5 20-2_�
STATE OF WISCONSIN )
) ss.
WI NEBAGO COUNTY )
Personally came before me this I -8Nay of 2024, the above -named
Amanda A. Bunton to me known to be the person who executed the (Yegoing document and acknowledged
the same. 'J"_Q1
CITY OF OSHKOSH:
By: —
MA A. Rohloff, City Manager
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Notary Public, State of Wi o sin
My Commission expires: 97CS / "2C 2,I
A
And: &a�
-
iane M. Bartlett, CilyT Clerk
Personally came before me this 80 day of 2024, the above -named Mark A.
Rohloff, City Manager, and Diane M. Bartlett, City Clerk, ofth&ity of Oshkosh, amunicipal 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.
Notary P lic, State of Wisconsin
My Commission expires: � - e I
August 08, 2024
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