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Home My WebLink AboutEncroachment Agreement/Beamani iii i iiii iiii 8 2 5 5 2 5 2 Tx:4182723 i�oaooi Encroachment Agreement REGISTER'S OFFICE D«umenrn�mne. W[NNEBAGO COUNTV, WI RECORDED ON 12/23/2035 9:43 AM JULIE PAGEL REGIS7ER OF DEEDS RECORDING FEE 30.00 PAGE5:8 fine Area �nd Remro AJJrcss City Attorney's 0[Ree PO Box ll30 Oshkosh,W154903-1130 91219750200 Portd ideu�ifineion Number CITY OF OSHKOSH AND PROPERTY OWNER This document drafted by: David J. Praska, Assistant Ciry Attomey CityofOshkosh, Wisco�sin Decemfier 4, 2015 ] � � � ENCROACHMENTAGREEMENT This Agreement is between the City of Oshkosh (City) and Michael J. Beaman and Deborah L. Beaman (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 91219750200 and commonly known as 775 Weatherstone Drive, Oshkosh (Property). The City holds a Drainage Easement (Easement) over and through the southerly lwenty (20) feet of the Property as identified on the Weatherstone Plat, which was recorded with the Winnebago County Register's Office on March 31, 2003 with document number 1239543, which is attached and incorporated into this Agreement as Exhibit A, and with the Property more particularly described as: Lot Two in WEATHERSTONE PLAT, in the Twelfth Ward, City of Oshkosh, Winnebago County, Wisconsin. The Owner desires to install fencing within and across the City's Drainage Easement. The Owner proposes a staggered board on board fence along the eastern and western Property boundaries and within the City's Drainage Easement (Encroachment). The fencing will 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 fence construction and maintenance in a manner that will allow the continued proper drainage, including maintenance, as designed for the Drainage Easement. Both parties agree that all of the City's terms and conditions in this Agreement are considered material. Specific terms and conditions of this agreement beriveen City and Owner follow. The City grants permission to the Owner to construct a staggered wood board on board fence which will encroach into the City's Drainage Easement, provided that the Encroachment is materially similar to the location and description submitted for the City's review and approval. The fence shall be installed a minimum of three (3) inches above the Easement grade as designed. 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 are found on the drawing attached and incorporated into this Agreement 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 December d, 207.i and all personal or property damage caused by the existence of the Encroachment. 4. The Owner is solely responsible for securing, maintaining, repairing, and replacingtheEncroachment. TheCitydoesnotacceptorassumeanyliabilityor responsibility for the Encroachment, whether to the Owner or to any third party, simply because it allows this Encroachment. 5. The Owner acknowledges and agrees that the Drainage Easement 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 eleds to protect or remove the Encroachment, 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 Encroachment, or any real property or structure associated with or surrounding the Encroachment. 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 proted the Encroachment for the purpose of maintenance within the Drainage Easement. Removal and/or protection of the Encroachment 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 Ownergives 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. 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 Drainage Easement prohibits the continued location of the Encroachment; b. The City determines that the Encroachment adversely affects the fundioning of Drainage Easement; c. Additional Encroachments are added or expanded without permission; d. Local, state, or federal rules, laws, or guidelines relating to any public facility located in the Drainage Easement, or any other local, state, or federal law, prohibit the continued existence 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. December 4, 2015 . . . __.. . . _.._ ..._._ .... . . .. .. .... . . .. 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 Drainage Easement may result in lawsuits or threats of lawsuits againstthe 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, attorneys fees and costs, and defense costs. The payments required of the Owner by this paragraph are due no laterthan 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 Drainage 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 encroachmentshall 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 eMend 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. 12. This Agreement is solely for the benefit of the City and the Owner, and this Agreement is not intended to benefit any third party. 13. The election to enforce or not enforce any provision of this Agreement, 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. 14. 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. 15. 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. The December $ 20/.i Owner's rights contained in this agreement relate to the Owner signing this document, and do not attach to property or run with the land. Permission for the Encroachment is revoked immediately and without notice as of the time that any person or entity otherthan 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 compliance with the Owner. The City's permission is also immediately revoked where the Property is transferred to an entity of which the Owner as defned above is the sole or partial Owner of the entity. December -0, 1015 [SIGNATURE PAGE FOLLOWS] Dated this� day of December, 2015. OWNER. � Mi ael J. Beaman i' I �l�li� . c.t..�.� �-�� . - STATEOFWISCONSIN ) ) ss. WINNEBAGOCOUNTY ) Personally came before me this �� day of December, 2015, the above-named Michael J. Beaman and Deborah L. Beaman, to me known to be the persons who exe./cuted the� fDoreg�/oing documen� and acknowledged lhe same. �/fl/VH-L v� , f iU�sll�� wn� Nalary Public, Sta�e of Wis�cqn5�, ��MTAM� My Commission expires :"7' .xJ - aO I F s� •"' •.� �� : � NpT . G9Z s�� `9<�� CIN OF OSHKOSH ��.�'• �</C ./ —� �s,�y'' ••• • ._ By: �1�-�?a'�-r<iC/, And: �� . J �a �bNSNN.�„�' Ma�hloff, City Manager amela R. Ubrig, Cit� Clerk �• STATE OF WISCONSIN ) ) ss. WINNEBAGOCOUNTV ) Personalty came before me this �&� day of December, 2015, ihe above-named Mark A. Rohloff, City Manager, and Pamela R. Ubrig, City Clerk, of the Ciry of Oshkosh, a municipal corporation, to me known lo be the pereons who execu�ed �he foregoing instrument, antl to me known to be such offcers o( said corporation, 2nd acknowledged that they executed the faregoing insirument as such offcers as the deed of said corporaticn, by its authonty. /g i �� / �{ No ary Public, late o isconsin MyCommissionexpires: „)—/,�.— /'� December 4, 201� i �� a _ , r I a i , i ip �� !`�ii �� g a � '9 � f � '3 � '. tl j�i -� ij�t �Ep �;� �s Ay ' � � � ' z � e �E � aa � t9� �i� �i g'9 �e 0 8 �3 ma� �'�� ____� i e a 3 = y ; �e p � L g9 �gteti�� !�� `P °w i.Fe � � ! ax;e 3 t° ssaj 9 p 99 S ta.� �� $3Ej pefg;i9 �3{ '� :�� u#� � I — i� a p 4 s 3 i� eg � (g• J a r�p�p €8� Fa n I� �. 12 1��. �!�y �gdg5 95�z,� d ��iF�xja YE. �� i g Y I .._._." - ' i�� s�� PSji q9 �� dS j i � o .x � � �� $ g a �ql e� �'� � �� . i + 13 xk � �' 6: B£s�� g') -3i"� �p �.��i Q�e1qp��'yes$'ie�QFe � � I e Sk -e $S � �6 � ° gi � 9b� '+9P ��;�� 3 va �. .�. ,, ai at $ i ! 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TM1ese map(s)/datasets are provided for inlormatian Duryoses ony antl may nol be sufficient or appropna:e for legal, enBineennB.orsurveyingpuryoses. Theyarepm�tle0"A5�15"wilhoutwarranlies N � tin=0.01mi 1in=30k Printing Date: 1�f1712015 Prepared by. CdyofOShkosh, lM Exhibit � O OJH�K JI-f-