HomeMy WebLinkAboutEncroachment/Monnett/1526192100 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: Jeremy & Kate Monnett Date: January 10, 2014
2150 Hickory Court Project: N/A
Oshkosh, WI 54901 From: Carol Marchant, Administrative Asst.
Re: Encroachment Agreement
Attn:
Please find: ® Attached ❑ Under Separate Cover
El Copy of Letter ® Agreement El Amendment ❑ Report ❑ Agenda
El Meeting Notes ❑ Photos El Mylars ❑ Change Order ❑ Plans
El Specifications ❑ Estimates El 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)
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Encroachment Agreement 1655798
REGISTER'S OFFICE
Document Number WINNEBAGO COUNTY, WI
RECORDED ON
01/06/2014 08:53 AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 30.00
Recording Area
Name and Return Address
City Attorney's Office
Oshkosh,WI 54903-1130
91526192100
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Assistant City Attorney
City of Oshkosh, Wisconsin
November 20, 2013 1 ��
ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh (City) and Jeremy T. Monnett and
Kate C. Monnett(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
91526192100 and commonly known as 2150 Hickory Court, Oshkosh (Property). The City
holds a storm water drainage feature easement(Easement) over and through the easterly
eighty(80)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 Three Hundred Eight(308) in the ELEVENTH EDITION TO NORTH
POINT PLAT in the Fifteenth Ward, City of Oshkosh, Winnebago
County, Wisconsin.
The Owner desires to install fencing within the City's Easement. The Owner
proposes a staggered board on board fence along the northern property line, and a chain
link fence along the eastern and southerly property lines, all 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 water 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 wood and chain link
fence 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. The staggered board on board portion of the fence shall be
installed a minimum of six (6) inches above the grade of the City's easement.
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 fencing allowed 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.
November 20, 2013 2
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.
5. The Owner acknowledges and agrees that the storm water 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 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 encroachments, 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 water drainage feature. Removal 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 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 water drainage feature prohibits the
continued location of the encroachment;
b. The City determines that the encroachment adversely affects the
functioning of storm water 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 storm water drainage feature, 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.
November 20, 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
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.
9. Both parties understand and agree that accidents and incidents related to the
storm water 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 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 is 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 20, 2013 4
Dated this Ort day of Nw 013.
OWNER.
/ C A.14232T
Jerem . Monnett Kate C. Monnett
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
s� Qecev�kJev�`�M
Personally came before me this 41 day of November,2013,the above-named Jeremy T.Monnett and Kate
C. Monnett,to me known to be the persons who executed he foregoing document and knowledged the same.
sON
No ry Public,Winnebago Co.,Wi consin
NCTgpj."-At% My Commission expires: ;JA ti's MY 1?i 2o1,6
l,1 WtsCOC``��.
CITY OF OSHKOSH
By: � And: _It ! 01
Mar A. Rohloff, City Manager Pamela R. Ubrig, City Clerk
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
zetaPersonally came before me this day of November, 2011, the above-named Mark A. Rohloff, City
Manager, and Pamela R. Ubrig, City Clerk, of the City of Oshkosh, 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 such officers as the deed of said corporation, by its
authority.
Imo_ 4 C
•• a Public, innebago o., Wisconsin
My Commission expires: ,- 4,2'/7
November 20, 2013 5
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The City of Oshkosh creates and maintains GIS maps and data for its own use. They may show the
approximate relative location of property,boundaries and other feature from a variety of sources. Printing Date:9/26/2013 p f HKOf H
These map(s)/datasets are provided for information purposes only and may not be sufficient or
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warranties of any kind and the City of Oshkosh assumes no liability for use or misuse.
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