HomeMy WebLinkAboutEncroachment/Lakeside Packaging Plus/ 1519601800 CITY OF OSHKOSH
LEGAL DEPARTMENT
215 CHURCH AVENUE, P.O. BOX 1130, OSHKOSH, WI 54903-1130
PHONE: (920)236-5115 FAX(920)236-5106
LETTER OF TRANSMITTAL
To: Lakeside Packaging Plus Date: June 6, 2012
100 W. Fernau Ave. Project:
Oshkosh, WI 54901 From: Carol Marchant, Admin. Assistant
Re: Encroachment Agreement
Attn: David Brotski
Please find: ® Attached ❑ Under Separate Cover
❑ Copy of Letter ® Agreement ❑ Amendment ❑ Report ❑ Agenda
❑ Meeting Notes ❑ Photos ❑ Mylars ❑ Change Order ❑ Plans
❑ Specifications ❑ Estimates ❑ Diskette ❑ Zip Disk ❑ Other
Quantity Description
1 Signed Encroachment Agreement
These are being transmitted as indicated below:
❑ For Approval ® For Your Use ❑ As Requested ❑ For Review&Comment
Remarks:
Signed: [f/AL "aAx...Lvtk
cc: City Clerk (original)
Engineering (copy) 1U� 0 $ 2012 ; `l
City Attorney(copy) ���,
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Encroachment Agreement
REGISTER'S OFFICE
Document Number WINNEBAGO COUNTY, WI
RECORDED ON
06/04/2.01Z 09:50 AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 30.00
Recording Area
Name and Return Address
City Attorney's Office
Oshkosh,WI 54903-1130 �
91519601800 CIL--1`p v
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Assistant City Attorney
City of Oshkosh, Wisconsin
0 May 4, 2012 1
ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh (City)and Lakeside Packaging Plus,
Inc., a Wisconsin Corporation (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.
The Owner is the fee owner of the property identified with Parcel Number
91519601800 and commonly known as 100 West Fernau Avenue, Oshkosh (Property).
The City holds a drainage easement (Easement) over and through the Property, with the
easement more particularly described as:
The North 40 feet of the property described as Lot 1 in C.S.M. Doc.
749233 Winnebago County Records, all being in a part of the NW 'A of
the SW 1/4 of Section 1-18-16, 15th Ward, City of Oshkosh, Winnebago
County, Wisconsin.
The Easement was recorded in the Winnebago County Register of Deeds on
February 28, 1992 as Document Number 78910. The Easement is attached hereto as
Exhibit A and is fully incorporated into this Encroachment Agreement. A diagram of the
Easement for location purposes is attached hereto as Exhibit B.
The Owner desires to install an underground storm sewer discharge and surface
level rip rap for storm water drainage purposes within the City's Easement, in a manner
substantially conforming to the size, shape, appearance, and location as identified in
Exhibit C, which is attached to this Agreement.
The City has reviewed the Owner's request and will allow the placement of the
requested encroachment. The approval of the encroachments are premised on their
construction and maintenance in a manner that will allow the ongoing functioning and
maintenance of the public storm water drainage within the easement as designed. Both
parties agree that all of the City's terms and conditions in this document are to be
considered material. Specific terms and conditions of this agreement between City and
Owner follow.
1. The City grants permission to the Owner to construct the underground storm
sewer discharge and surface level rip rap for storm water drainage purposes on
the Property which will encroach into the City's Easement, provided that the
encroachment is materially similar to the location, design, and specifications
submitted for the City's approval. Changes and/or alterations to the
encroachment must be approved in writing in addition to any written permits,
licenses, and similar approvals. A drawing of the allowed underground storm
sewer discharge and surface level rip rap for storm water drainage purposes is
attached hereto as Exhibit C.
2. The City's permission for this encroachment is contingent upon the initial, and
continuing, compliance with all applicable local, state, and federal statutes,
codes, rules, and Ordinances.
May 4, 2012 2
3. The Owner agrees that it is solely responsible for the installation and
maintenance of the encroachment, and that they are solely responsible for any
and all personal or property damage caused by the existence of the
encroachments.
4. The Owner is solely responsible for securing, maintaining, repairing, and
replacing the encroachments. The City does not accept or assume any liability
or responsibility for the encroachments, to the Owner or to any third party,
through its permission to locate the encroachments in the City's public
Easement.
5. The Owner acknowledges and agrees that public utilities and public facilities
within the City's storm water drainage Easement are subject to maintenance,
repair or replacement. In the event that maintenance, repair, or replacement of
public storm water drainage facilities Easement is necessary, the City agrees to
make reasonable efforts to notify the Owner of these activities so that the Owner
may protect or remove the encroachments. Protection or removal of
encroachments shall be at the Owner's cost. If the Owner elects to protect or
remove the encroachments, such actions must be taken within the timeframe for
the City's anticipated work. The City shall not be responsible for any damage to
the encroachments, or any real property or structure associated with or
surrounding the encroachments.
6. In the event that the Owner elects, or fails, to remove, reroute, or protect the
encroachments, or in the event of an emergency, the City may take all
reasonable actions to remove, reroute, or reasonably protect the encroachments
for the purpose of maintenance, repairs, and replacement of its storm water
drainage facilities in the Easement. Removal, rerouting, and/or protection of
encroachments shall be at Owner's expense. The Owner shall be responsible
for repairing, reinstalling or reconstructing the encroachments in all
circumstances. The City shall be reimbursed by the Owner for all costs and
expenses related to the encroachments. The Owner gives the City permission
to enter, access, and alter the Property not included in the easement for the sole
purpose of removing or protecting the encroachments.
7. The City is allowed to revoke its permission for the encroachments for any of the
following reasons:
a. The City's use of the Easement prohibits the continued location of the
encroachments;
b. The City determines that an encroachment adversely affects the
functioning of public facilities in the Easement;
c. Future additional encroachments are added without permission;
d. 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;
May 4, 2012 3
•
e. The Owner fails to property maintain, repair, or replace the
encroachments;
f. The Owner fails to provide the City with annual written proof that the
encroachments are covered by the required insurance.
8. 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
encroachments. 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 encroachments.
9. Both parties understand and agree that accidents and incidents related to the
City's Easement, or the City's facilities located in the Easement, 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 Encroachments. 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.
10. At all times that the underground storm sewer discharge and surface level rip
rap encroachments for storm water drainage purposes are located in the
Easement, the Owner's property liability insurance shall cover all potential
liabilities related to the encroachments. The Owner's insurance shall provide
reasonable coverage for potential damages to persons and property cause
wholly, or in part, by the encroachments. Minimum insurance coverage related
to the encroachments 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 encroachments. The Owner shall annually
provide the City with proof of insurance for the encroachment.
11. 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 encroachments, as well as successors and assigns, and those with any
interest in the Property.
12. This agreement is solely for the benefit of the two parties to this agreement, and
it is not intended to benefit any third party.
13. The election to enforce or not enforce, 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 in the future.
May 4, 2012 4
14. This agreement shall incorporate 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.
This revocable encroachment agreement shall inure to the benefit of, and be binding
upon, the parties hereto, their successors, tenants, subtenants, licensees, and assigns.
[SIGNATURE PAGE FOLLOWS]
May 4, 2012 5
..... .. .... .. .
Dated this 2 ��day of 41 , 2012.
LAKESIDE PACKAGING PLUS,, INC.
David Brotski, Execu 've Director
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY ) JJ,,, nn�
Personally came before me this f lj'"�r'day of / 1 0. ,2012,the above-named David Brotski,to me
known to be the person who executed the foregoing document nd acknowledged the same.
eoft,44, ce .i°'%et-1
Notary Public, d/?Ile .9, Co.,Wisconsin
My Commission: .S Iy SJ, 2e12_
CITY OF OSHKOSH
•
By: 1,---)4‘l . And: •AIL. Rohloff, City Manager Pamela R. Ubrig, Cit erk
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally came before me this day of ,2012,the above-named Mark A.Rohloff,
City Manager,and Pamela R.Ubrig,City Clerk,of the City of Oshk sh,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 su' ,officers as the deed of said c. 'oration, by its
authority. �l 7
/
Notary Public,Winnebago o.,,..14/1 !/
My Commission expires/isO
May 4, 2012 6
EASEMENT
February
THIS INDENTURE, MADE THIS 24 day of AMEMME9C, 1992, by WORK
ADJUSTMENT SERVICES, INC.{ GRANTOR,�and the CITY OF OSHKOSH, a munici-
pal 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 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 drainage ditch over and
through and upon that certain tract of land situated in the City
of Oshkosh, Winnebago County, Wisconsin, and described as fol-
lows:
(Tax parcel #15-1960-18) •
The north 40 feet of the, property described as Lot 1 in
C.S.M. Doc. 749233 Winnebago County Records, all being a
part of the NW 1/4 of the SW 1/4 of Section 1-18-16, 15th
. Ward, City of Oshkosh, Winnebago County, Wisconsin.
Upon exercising any of the righ:.s herein grantedc 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 drainage
ditch 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 Gran-
tor, 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, :aid Grar.to: has hereunto set its hand and
seal the day and year first above written.
WORK ADJUSTMENT SERVICES, NC.
By: G• /'t " V p
t E. Vogt / •
And: ee _ g I Orget17Svs Zamecrok
Ter Leaks
•
STATE OF WISCONSIN) •
as.
WINNEBAGO COUNTY. )
AeWer
e son 1 y cam before me the day Jo, J 1992,
not �i l ne and d he foregoing instrument , and
m own to be a persons who exeduted ,
to • me known to be such officers of WORK ADJUSTMENT SERVICES, INC., •
and acknowledged that they executed the foregoing instrument as such
officers, . by its authority.
Notary fully W�i a�b��? o County,WI
My Commission: fee1.1dl a'`7`'s1//x'93
This instrument drafted by: :. •
Attorney John W. Pence
City Attorney, Oshkosh, WI ��a ''.
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Menasha,Wisconsin
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