HomeMy WebLinkAboutencroachment/Penzenstadler 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: Paul & Susan Penzenstadler Date: January 6, 2014
3990 Summerview Drive Project:
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 Copy of recorded Encroachment Agreement
These are being transmitted as indicated below:
❑ For Approval ❑ For Your Use ❑ As Requested ❑ For Review& Comment
Remarks:
cc: City Clerk (original)
Public Works, Engineering (copy)
City Attorney (copy)
361
11 i %1 11111111
Encroachment Agreement 1655
REGISTER'S OFFICE
Document Number WINNEBAGO COUNTY, WI
RECORDED ON
12/30/2013 09:05 AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 30.00
Recording Area
Name and Return Address
City Attorney's Office
Oshkosh,WI 54903-1130
91219750000
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Assistant City Attorney
City of Oshkosh, Wisconsin
tf0
November 27, 2013 1
•
ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh (City) and Paul Penzenstadler and
Susan Penzenstadler (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
91219750000 and commonly known as 795 Weatherstone Drive, Oshkosh (Property). The
City holds a storm sewer easement (Easement) over and through the northerly thirty (30)
feet of the Property as identified on the Plat's Drainage Plan attached as Exhibit A, and
with the Property more particularly described as:
Lot One (1) in WEATHERSTONE PLAT in the Twelfth Ward, City of
Oshkosh, Winnebago County, Wisconsin.
The Owner desires to construct a house on the property and install a driveway within
the City's Easement. The proposed driveway shall be installed in a manner substantially
conforming to the location and description 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 encroachment is premised on the
construction and maintenance in a manner that will allow the ongoing functioning and
maintenance of the City's storm sewer 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 driveway which will
encroach into the City's Easement, provided that the encroachment is materially
similar to the location and description 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. The location and
other information about the driveway is found on the drawing 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 they are 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 encroachment. The City does not accept or assume any liability or
responsibility for the encroachment, whether to the Owner or to any third party,
because it permits this encroachment.
November 27, 2013 2
•
5. The Owner acknowledges and agrees that the storm sewer 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 encroachment. Protection or removal of the
encroachment 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 or protect the encroachment, or in
the event of an emergency, then the City may take all reasonable actions to
remove or reasonably protect the encroachment for the purpose of maintenance
of the storm sewer. Removal and/or protection of encroachments shall be at
Owner's expense. The Owner shall be responsible for repairing, reinstalling or
reconstructing the encroachment in all circumstances. The City shall be
reimbursed by the Owner for all costs and expenses related to the
encroachment. 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 encroachment.
7. The City is allowed to revoke its permission for the encroachment at its sole
discretion for any of the following reasons:
a. The public use of the storm sewer prohibits the continued location of the
encroachment;
b. The City determines that the encroachment adversely affects the
functioning of storm sewer;
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 storm sewer, or any other local, state, or federal law
prohibit the continued location of the Encroachment;
e. The Owner fails to property maintain, repair, or replace the
encroachment;
f. The Owner fails to provide the City with annual written proof that the
encroachment is 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
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.
November 27, 2013 3
9. Both parties understand and agree that accidents and incidents related to the
storm sewer 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. 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 encroachment are located in the Easement, 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 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 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]
November 27, 2013 4
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WINNEBAGO COUNTY,- WiSCONSIN
FOR PAUL PENZENSTADLER
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LEGEND •
(000.00) EXISTING.GRADE PER DRAINAGE;PLAN
000.0 PROPOSED FINISHED GRADE ELEVATION ` '
000:0 PROPOSED GROUND ELEVATION AT FOUNDATION , • .
• DIRECTION OF PROPOSED DRAINAGE ,
-X-X- EROSION CONTROL
CHECK. COMPATIBII,ITY WITH EXISTING ELEVATIONS
Martenson & Eisele, Inc. •
1377 Midway Road Planning
_ Menasha,WI'54952 Environmental PROJECT NO 1—0408-001
www.martenson-eisele.com Surveying
mfo @martenson-eisele.com Engineering
FILE 1-0408-001 sp.dwg
920.731.0381 1.800.236.0381 Architecture THIS INSTRUMENT WAS DRAFTED BY: A.Sedlar
Exhibit ?
Beyond the expected" i1 THE FARMERS AUTOMOBILE INSURANCE ASSOCIATION
v, � PE KI N' ❑ PEKIN INSURANCE COMPANY
INSURANCE
DECLARATIONS
AGENT'S AGENT'S POLICY
NUMBER 02648 NAME BOCK INSURANCE AGENCY, INC. NUMBER 03509144P
INSURED'S NAME AND ADDRESS POLICY PERIOD 12:01 A.M.
Paul G. &Susan M. Penzenstadler 12/06/2013 TO 12/06/2014 STANDARD TIME
795 WEATHERSTONE DR
OSHKOSH,WI 549011678
The residence premises covered by this policy is located at the above address unless otherwise stated:
NUMBER OF YEAR OF ZONE TYPE OF CONSTRUCTION PROTECTION FORM
RATING FAMILIES CONSTRUCTION CLASS
INFORMATION 1 2013 39 FRAME 02 5
SECTION I COVERAGES COVERAGE IS PROVIDED ONLY WHERE A PREMIUM OR LIMIT OF UABIUTY IS SHOWN. SECTION II LIMIT OF LIABILITY
A.DWELLING B.OTHER C.PERSONAL D.LOSS OF USE E PERSONAL F.MEDICAL PAYMENTS
STRUCTURES PROPERTY LIABILITY TO OTHERS
(EACH OCCURENCE) (EACH PERSON)
s 300,000 30,000 210,000 s $90,000 500,000 2,000
•
PREMIUMS
BASIC POLICY ADDITIONAL SCHEDULED PERSONAL MINE SUBSIDENCE TOTAL POLICY
PREMIUM PREMIUM PROPERTY PREMIUM (ILLINOIS&INDIANA ONLY) PREMIUM
8 $ $ $ $
588 106 694
DEDUCTIBLE(S) In case of a loss we cover only that part MORTGAGEE
of the loss over the deductible stated.
a Choice Bank
1000 (Wind/Hail 1000) 2450 Witzel Ave
Oshkosh, WI 54904
(a)The residence premises is not seasonal;(bi no business pursuits are conducted on the residence premises: (c)the residence premises
is the only premises where the insured or spouse maintains a residence other then business or farm properties; (d) the insured has no
outboard motor(s)or watercraft otherwise excluded under this policy for which coverage is desired;(e)during the last 5 years the insured
has had no fire or theft losses; if)during the last 5 years no Company has refused to issue or canceled insurance issued to the insured,
similiar to that provided by this policy.Exception.if any,to(a),(b),(c).{d),or(f)."
*Absence of any entry means"no exceptions".
12/06/2013
DATE ISSUED AUTHORIZED REPRESENTATIVE
F464(Rev.9.93)
Dated this 6 day of December, 2013.
O NER
>L70c4, -Paul G. Penzenstadler Susan M. Penze s adler
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this f f-Nic day of December,2013,the above-named Paul G.Penzenstadler and
Susan M.Penzenstadler,to me known to be the persons who executed the foregoing document and acknowledged the
same. 0�
Notary 'u slid,Winnebago Co., y� ��
My Commission expires : • ( xi
CITY OF OSHKOSH
By; �
4/-6---4(-- And Abkit ihr
‘5-0;14A1
'( r
Mirk A. Rohloff, City Manager 7101)e i n��e�S o� e i s
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY ) dd
Personally came before me this___ day of December, 2013, the above-named Mark A. Rohloff, City
Manager, and Arywit,— 5,sexei, et 'Clerk, of the City of Oshkosh, a municipal corporation, to me known to be the
persons who executed me 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 Public,Winnebago Co.,Wisconsin
My Commission expires: 2
November 27, 2013 5