HomeMy WebLinkAbout2025-09-09 Encroachment - 1613 Thornton DrEncroachment Agreement DOC# 1952218
SUSAN SNYDER
Document Number REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
09/10/2025 10:56 AM
RECORDING FEE: 30.00
PAGES: 8
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh, W1 54903/11
91317730000
Parcel Identification Number
CITY OF OSHKOSH
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
August 18, 2025
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh (City), and Daniel Busalachi (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 91317730000 and
commonly known as 1613 Thornton Drive. The Property is more particularly described as:
Lot Five Hundred Thirty-five (535) in THIRD ADDITION TO
WESTHAVEN, in the Thirteenth Ward, City of Oshkosh, Winnebago
County, Wisconsin.
2. The Property was created when the Third Addition to Westhaven subdivision was recorded
with the Winnebago County Register of Deeds on September 17, 1976, as Document
Number 4840000. The subdivision plat included a ten (10) foot Storm Sewer Easement along
the east side yard boundary. The subdivision Plat is attached as Exhibit A.
3. A map of the Easement and the proposed Encroachment within the Easement is attached as
Exhibit B. The Encroachment includes part of a driveway/parking area to be installed in the
Easement.
4. No structure or object is allowed to obstructor interfere with the City's use of its Easement.
The driveway / parking area Encroaching into the Easement interferes with the City's use of
its Easement by requiring additional costs and time to projects for its removal before being
able to address the City's lawful uses of the Easement. Therefore, the City's permission
through this Agreement is necessary to set forth the parties' respective obligations.
5. The City will allow the installation of the driveway / parking area Encroachment subject to
the terms of this Agreement. A material consideration of this Agreement is the explicit
understanding that the City's permission allowing an Encroachment does change, minimize,
waive, or affect any of the City's easement rights. The City's permission also does not
create or grant any property rights related to the Encroachment or the use of the Easement.
This Encroachment does not attach to the land but instead is personal to the Owner and is
revocable at the sole discretion of and by the City.
6. The Encroachment must be constructed and remain the same as proposed. It cannot be
enlarged, altered, modified, or replaced without written approval by the City. Approval is at
the sole discretion of the City, which has no obligation to approve any changes. For
clarification purposes, the permissions for the purpose of this Agreement does not affect
other obligations to the City, for things such as permits, zoning, and storm water, or to
private individuals for things such as storm water drainage;
7. The City's permission for this Encroachment is contingent upon the initial, and continuing,
compliance with all applicable local, state, and federal statutes, codes and rules. The
Encroachment shall comply with City Ordinances, and state and federal laws and regulation
regarding related subjects including setbacks, storm.water drainage, fencing, zoning,
property maintenance, permitting, and public nuisance.
2
August 18, 2025
8. The Owner is solely responsible for any and all personal or property damage to the extent
caused by the Encroachment. Owner is responsible for ensuring that the Encroachment does
not limit or interfere with storm water drainage.
9. The Owner is solely responsible for securing, maintaining, repairing, and replacing the
Encroachment. The Owner is responsible for identifying accurate property boundaries. The
City's permission and approval of this Encroachment is not meant to state or imply that the
City guaranties or warranties the short- and long-term stability and safety and/or compliance
of the Encroachment. The Owner always retains the responsibility and liability for the
Encroachment.
10. The facilities in the Easement are subject to maintenance, repair, grading, and replacement.
To that end,
a. The Owner is solely responsible for removing, or protecting in some circumstances,.
the Encroachment if it will be affected by any public or non-public maintenance,
repair, or replacement projects or activities within the 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 making sure storm water drainage is not
adversely affected by the existence of Encroachment.
c. The City will make reasonable efforts to provide advance notification to the Owner
of projects or activities in the Easement. Advance notice for emergency activities is
typically not feasible, but the City will make reasonable efforts during or after the
emergency activities to communicate with the Owner.
d. The Owner's actions to protect or remove the Encroachment must be taken in a
lawful manner, and must be undertaken within the City's timeframe.
e. The City is not be responsible for any alteration or damage to any Encroachment, or
to any structure or improvement outside the Easement that is attached to the
Encroachment by is damaged due to the removal, alteration, or protection of the
Encroachment.
f. The City's priority is to take care of maintenance, repair, and replacement of its
facilities without regard to objects that may be in the Easement. Therefore, the City
may, but has no obligation to, move or remove any object in the Easement when
undertaking the lawful use of its Easement. Removal of any object by the City is at
the City's sole discretion, but the City is not responsible for any damage resulting
from the removal or attempted removal. This includes both the driveway / parking
area as well as any property in whole or in part within the Easement.
g. The Owner is responsible for reinstalling / reconstructing the Encroachment
regardless of who removed the Encroachment. The reinstallation / reconstruction
must be preapproved by the City, with approval at the City's sole discretion.
August 18, 2025
11. The revocable nature of the City's permission that is also personal to the Owner and not a
property or other right results in the fact that the Owner is not eligible to receive any
compensation, reimbursement, or payment of any kind for the removal, alteration, or limited
accessibility, in whole or in part, whether temporary or permanent, of the Encroachment.
12. The City is allowed to revoke its permission for the Encroachment at its sole discretion.
Reasons for revocation include the following reasons:
a. The use and/or proper function of the Water & Drainage Easement prohibit 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
Easement with such determination to be made solely at the discretion of the City;
c. The City at its sole discretion determines that the Encroachment adversely affects the
use and functioning of its public facilities and/or storm water drainage;
d. The Encroachment is increased in scope or density, expanded, materially changed,
and/or moved without 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 conveys, in whole or in part, an ownership interest in the property to
another person or entity;
h. The Owner fails to provide the City with annual written proof that the Encroachment
is covered by the required insurance.
13. The Encroachment must be removed immediately upon the termination, revocation, or
expiration of the City's permission and of this Agreement. In the event that the Owner fails
or refuses to remove the Encroachment, the City may, but is not required to, enter Owner's
property to the extent necessary to remove and dispose of the Encroachment. All costs of
removal will be the Owner's responsibility.
14. 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, to the extent such action, claim, and
demand are caused by the Encroachment.
15. 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 is
responsible for the actions of the Owner's contractors, agents, or representatives.
4
August 18, 2025
16. This Agreement is solely for the benefit of the City and the Owner, and is not intended to
benefit any other person or entity.
17. The City at its sole discretion will elect to enforce or not enforce any provision of this
Agreement, as well as determining the timing of enforcement. Regardless of enforcement or
non -enforcement, the Owner remains obligation to comply with all terms of this Agreement.
Enforcement decisions will not act as a waiver of any right to enforce any provision in this
Agreement in the future.
18. 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.
19. The Encroachment permission does not reflect the granting of any right, property or
otherwise, and the Owner's ability to have Encroachment in the Easement does not attach to
or run with the land. This Agreement may be recorded with the land records for the purpose
of providing notice and clarity to subsequent owners that the Encroachment may be required
to be removed according to the terms of this Agreement.
20. All parties signing below state that they have the authority to enter into this Agreement
without limitation or restriction.
21. 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 enforcement and compliance. 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
August 18, 2025
PROPERTY OWNER:
1613 Thornton Drive
Daniel Busalacchi, Owner r;
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY ) -
Personally came before me this 7� a , day of ��� 2025, the above -named Daniel
Busalacchi to me known to be the person who executed the foreg&ng document and acknowledged the same.
CITY OF OSHKOSH
By:
Rebecca N. Grill, City Manager
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Notary Public, State of Wisco in
My Commission expires: .3 1%7-2
0
And: 93 Q A_U Q
Di xt1Mt, City Clerk
C.."p� \k _P1k10V1A'_
Personally came before me this day of Kbt(2025, the above -named Rebecca N.
Grill, City Manager, and tt, City Clerk, of the City of Oshkosh, a municipal corporation, to
me known to be the perso s w �cf'g 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. �p
NotarflPublic, State of W7031.
o i
My Commission expires: 7 `3 1 ' g i
6
August 18, 2025
TMCNE WU.1 R..!RICT �R-AA ACCL03 TOU.&-,�, NM LOT OR RLOCK OR —TIEP"AIL
AMU.
Z
v
Ld
w
ww o
u
it
U
z
?
U.-
I %
---TON-4— Z,.7,DRUE-
15
0
MWAS.
-d-
V
1"s
N, by
14Y
4 4
&
V
1.00'..
. . . . . . . . . .. 000 .19 . . . 'i 1! 9 9 q 19 i 1! 1 cl li 1! 1� I I
u 911, 2111�1 gxl� P1.1.419 .1". 1.129 0 9.14S
0. . .
A
C? Ni•
-- -- - - - - - - - - - Am
C?
A A 10 a, 4 *4 .
u 4
AZI
j
non. r:i 1� C!G.l r: C W!w r:ri i a., W!i 9 i i i 4! P"!i 9 i W! P i a., 1u9 9
GS 0 —00—m—C'MMMO, g
0 0 0* 0—
tz bi3 S 3
I M. 1 19 .9 . . . . .
gA2 . . . . . � . . . . . . . . . . . . . g�-!q
. . . . . . . . . . . . .iii' . 2 . . . . . . . . . .iii'ii . . . . . . . . . . . . . . . .
onan AgAfflp-zRq
. . . . . . . . . . . . . I . . . i . . I. . . . . . . . . . . . . . . . . . . . . .. . . I. . . . . . . . . . . . . . . .
ONb
D III
0 3900000000000000000000000000-
0000 %
. . . . . . . 999C�99C!9999999i
-AOC
--mmmPOM RR 8 0
L L---
0 , t
CO.— 0, 0,
Hw
APPAPAN. .70. WK5WAYCK
EXHIBIT A (1 of 1)
EXHIBIT B (1 of