HomeMy WebLinkAboutEncroachment/Zangle/1526191500 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: Steven &Tracy Zangl Date: May 16, 2013
2390 Hickory Court Project: N/A
Oshkosh, WI 54901 From: Carol Marchant
Re: Encroachment Agreement
Attn:
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 Executed Encroachment Agreement at 2390 Hickory Court (copy)
These are being transmitted as indicated below:
❑ For Approval ❑ For Your Use ❑ As Requested ❑ For Review&Comment
Remarks: ��� �, ni /i
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Signed: ea,te-e_. 9/1Bh2)_JIAn f ! J
., MAY 17 2013 Li
cc: City Clerk (original)
Public Works, Engineering (copy)
City Attorney (copy) CITY CLERK'S OFFICE
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Encroachment Agreement
REGISTER'S OFFICE
Document Number WINNEBAGO COUNTY, WI
RECORDED ON
05/14/2013 09:18 AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 30.00
Recording Area
Name and Return Address
City Attorney's Office
Oshkosh,WI 54903-1130
91526191500
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Assistant City Attorney
City of Oshkosh, Wisconsin
April 12, 2013 1
ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh (City) and Steven T. Zangl and
Tracy L. Zangl (Collectively, 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
91526191500 and commonly known as 2390 Hickory Court, Oshkosh (Property). The City
holds a temporary storm water detention easement (Easement) over and through the
southerly thirty (30) feet of Property as identified on the recorded Plat, and with the
Property more particularly described as:
Lot Three Hundred Two (302) in ELEVENTH ADDITION TO NORTH
POINT PLAT, in the Fifteenth Ward, City of Oshkosh, Winnebago
County, Wisconsin.
The Plat was recorded in the Winnebago County Register of Deeds on August 12,
1999 on Pages 78 and 78a of Plat Book 3, as Document Number 1069116. The Plat is
attached hereto as Exhibit A and is fully incorporated into this Encroachment Agreement.
The Owner desires to install a chain link fence within the City's Easement, in a
manner substantially conforming to the size, shape, appearance, and location as identified
in Exhibit B, 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 short term storm water detention and drainage feature 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 chain link fence 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 fence is attached hereto as Exhibit B.
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.
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.
April 12, 2013 2
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 short term storm
water detention and drainage feature.
5. The Owner acknowledges and agrees that the short-term storm water detention
and drainage feature may be subject to maintenance. In the event that
maintenance 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 fails to remove, reroute, or protect the
encroachments, or in the event of an emergency, then the City may take all
reasonable actions to remove, reroute, or reasonably protect the encroachments
for the purpose of maintenance of the short-term storm water detention and
drainage feature. 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 public use of the short-term storm water detention and drainage
feature prohibits the continued location of the encroachments;
b. The City determines that an encroachment adversely affects the
functioning of short-term storm water detention and drainage feature;
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 short-term storm water detention and drainage
feature, or any other local, state, or federal law prohibit the continued
location of the Encroachments;
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.
April 12, 2013 3
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
short-term storm water detention and drainage feature 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 encroachments 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.
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]
April 12, 2013 4
Dated this day of 'v , 2013.
OWN�,.
_A L ki / - aid,
•t- en T. Zang Tracy L. Zang ,
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY ) d Personal) came before me this9,1 day of / `76��
Personally ,2013,the above-named Steven T.Zangl and
Tracy L.Zangl, ,to me known to be the persons who exec a for gom cumen nd acknowledged the same.
otary Public, ''• Co.,Wisgonsin
My Commission expires-: 07/OS/Z6i S
CITY OF OSHKOSH
// ���/!� _` Fri
By: ..,-4- - --,1/`a And: .,
Mark A. Rohloff, City Manager Pamela R. Ubrig, ity Clerk
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
1 .
Personally came before me this ' day of krLu ,2013,the above-named Mark A.Rohloff,
City Manager,and Pamela R.Ubrig,City Clerk,of the City of Os kosh,a municipal corporation,to me known to be the
persons who executed the foregoing instrument, and to me kno n to be such officers of said corporation, and
acknowledged that they executed the foregoing instrument as 4 officers as the cll. of said corporation, by its
authority.
t I
Notary "elic, xpir-s/i G'�,WI1-/(
My Co �"F sion expires/i�( � f 7-`
April 12, 2013 5
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