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HomeMy WebLinkAboutEncroachment/1342953500DocumrntNumber Encroachment Agreement CITY OF OSHKOSH AND PROPERTY OWNER T'his document drafted by: David J. Praska, Assistant CiTy Attomey City of Oshkosh, Wisconsin i i iii iii i��i�iii Tx:4187271 1706266 REGISTER'S OFFICE WINNEBAGO COUNTV, WI RECORDED ON 02)O1/2016 10:54 AM CHRISTOPHERLARSON DEPUTY REGISTER OFDEEDS RECORDING FEE30.00 PAGES: 7 a�o¢ a�ee ,oa a�m.o aaa�::: � City Attorney's Office PO Boz 1130 Oshkosh,W1549�3-1130 91342953500 Parcel IdcvnEcaHon Number Deceneber 4, 2015 1 I� ENCROACHMENTAGREEMENT This Agreement is between the City of Oshkosh (City) and Michael L. Polka and Jean M. Polka (Collectively, Owner). The parties enter into this agreement for 31.00 and other good and valuable consideration as described in this Agreement, the receipt ofwhich is acknowledged. The Owner is the fee owner of the Property identified with Parcel Number 91342953500 and commonly known as 1195 Heidi Haven Drive, Oshkosh (Property). The City holds a Drainage Easement (Easement) overand through the westerlytwenty (20) feet of the Property as identified on the Second Addition to Pheasant Creek Farm Plat, which was recorded with the Winnebago County Register's Office on February 23, 2005 with document number 1345731, which is attached and incorporated into this Agreement as Exhibit A, and with the Property more particularly described as: Lot One Hundred Nineteen (119) in SECOND ADDITION �TO PHEASANT CREEK FARM„ in the Thirteenth Ward, City of Oshkosh, Winnebago County, Wisconsin. The Owner desires to install fzncing within and across the City's Drainage Easement. The Owner proposes a chain link fence along the northern Property boundary, and twenty-fve (25) feet north of the southem Property boundary, both of �vhich will be within the City's Dreinage Easement (Encroachment). The fencing will be installed in a manner substantially conforming to the location and description as identifed in Exhibit B, which is attached to this Agreement. . � The City has reviewed the Owner's rzquest 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 between City and Owner follow. The City grants permission to the Owner to construct a chain link fence which will encroach into the City's Drainage Easement, provided that the Encroachment is materially similarto the location and description submitted for the City's review and approval. Changes and/oralterations to the Encroachment must be approved in writing in addition to any written permits, licenses, and similarapprovals. Thelocationandotherinformationaboutthefencingallowed are found on the drawing attached and incorporated into this Agreement as Exhi6it 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. December 4, 201J 3. The Owner agrees that they are solely responsible for the instailation 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 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 notifythe Owner of these activities so that the Owner may protect or remove the Encroachment. Protection or rzmovai of the Encroachment shall be at the Owner's cost. If the Owner elects 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 Own2r fails to remove or protect the Encroachment, or in the event of an emergency, then the City may tzke all reasonable actions to remove or reasonably protect the Encroachment for the purpose of maintenance within the Drainage Easement. Removal and/or protection ofthe Encroachment shall be at Owner's expense. The Owner shall be responsible for repairing, reinstalling or reconstructing the Encroachment in all circumstances. The City shali 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 ailov✓ed 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 functioning of Drainage Easement; c. Additional Encroachments are added or expznded 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; December 4, 2015 The Owner fails to provide the City with annuai written proof that the Encroachment is covered by the required insurance. 8. The Owner releases the City of Oshkosh, its employees, agents, elected offcials, and authorized volunteers from all debt, claims, demands, damages, actions and causes of action whatsoever which may resWt from the Encroachment. The Ownershall protect and hold the City of Oshkosh harmiess 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 rzsult in lawsuits orthreats 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 responsibie 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 ofthe 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 Ciry of Oshkosh, in � consideration of the privilege granted by the City under this Agrzemznt. 10. At all times that the Encroachm2nt is located in the Drainagz Easement, the Owner's property liability insurance shall cover all potential liabilities related to the encroachment. The Owners 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 propzrty 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 behalfand 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. December 4, 2015 . 4 . . 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 � Owner's rights contained in this agreement relate to the Owner signing this document, and do not attach to p�operty or run with the land. Permission forthe Encroachment is revoked immediately and without notice as ofthe time thatany person orentity otherthan the Owner identified in this document becomes a fee owne�, 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 defined abov2 is the sole or paRial Owner of the entity. [SIGNATURE PAGE FOLLOWS] Decenxber 4, 2015 � �a��a�9 aoi� Dated this 1 g day of�Bee�r, 26ib: OWNER. * � /' Q� o /!C� Micha L. Polka \. ..�_ �. �t... I - -. . - STATE OF WISCONSIN ) ) ss. WINNEBAGOCOUNTV ) � �•+.��.afJ aoll. Personally rame before me this � day ot9asember, 2Bt3, the above-named Michael L. Polka and Jean � � me known to be Ihe ersons who execu ihe oregoing tlocun n� and . cknowledged lhe same. Lyndee Lewis a a� rc, �e'rw oo�Ap�s�� No P bli St te o isconsin My Commission expires :�,� — S`�� CITY OF OSHKOSH By �s�.��-� Ma A. Rohloff, City Manager _ _, And: � � � � � � l Pamela R. Ubrig, Cit Clerk � STATEOFWISCONSIN ) ) ss. WINNEBAGOCOUNTY ) �n�,� �y, acib Personally wme before me this�,�L day ofSesamkeq�4BfJ-1he above-named Mark A. Rohloff, Ciry Manager, and Pamela R. Ubrig, City Clerk, of the City of Oshkosh, a municipal corporatioq to me known to 6e ihe persons who executed the foregoing insVUmen�, and �o me known to be such oHcers of said wrporetion, and acknowledged lhat ihey executed the foregoing instmment as such oKcers as the tle tl of said corperalion, by its authariry. � � Notary Publiq S te of Wiswqain My Commission expires' L-! Z—/ � December 4, 20l5 %`�� o CERTIFICATE OF LIABILITY INSURANCE I oin"ezovis � THIS CERTIFICATE IS ISSUEO AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON TXE CERTIFICATE HOLDER. TNIS GERTIFILATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY TNE POLICIES BELOW. THIS CERTIFICATE OF INSUR/NCE o0E5 NOT CONSTITUTE A CONTRACT BEIWEEN iHE ISSUING INSURER(5), AIITHORI2E0 REVRE3ENTATIVE OR PROOUCER, ANO THE CERTIFICATE HOLOER. IMPORTANT: I/ t�e cartificate �oltler Is an ADDITIONAL INSURED, Me polley�lea) muat be entloreatl. If SUBROGATION IS WAIVED, subJact to Ne terms anE contli[lons ot Ne policy, cerlaln policles may requlre an enEOrsemenG A sfa[ement on tM1la certi(icate Ooes nol conhr rig�b to tha certlilcafe �olEer In Ileu of auch antlonemen[(s�. PROOVCtli NNME LYlMCE L2W15 Lyndee Lewis Agency LLC p�xE Fµ 1050WitzelAve �,,.azo.zai.wia �,,,�,,,: StateFarm Oshkosh W154902 "°ORE3� �. m_._cµ�PEWS1��OflDINOCOVEMOE. ".,t lilY 1195 Heidi Haven Dr Oshkosh W154904 TVPE OF INSUMNCE MERCI<L GENEMI ll<BIOT CUIMSMA�E I_ J OCCOR GEKLAGGPEGAiE LIMIi APPLIES PEft: PoLICY � �j � LOC OTXEP /�VttIMOBRELUBRIiY ANY POTO ALLOWNEO $CHEOOLE( AOTO$ ryON-0NNEI HiREDeVi05 qpT05 J( IIMBREWLI�9 �.��q ElCE95WB fiuNS- City of Oshkosh Oshkosh W154901 =R: REVISION NUMBER: ISTE� BELOW HAVE BEEN ISSUEO TO THE INSURED NAMED ABOVE FOR T1E POLICY PERIOD I OR CONOITION OF ANV CONTRpCT OR OTHER �OCUMENT 1MTH RESPECT TO WHICH THIS UWINCE AFFOR�E� BV THE POLIQES DESCRIBEO HEREIN iS SUBJECT TO RLL TIE TERMS, HOWN MNY HAVE BEEN REDUCED BY PPiD CuirvtS. POLICVNUMBER MW � MMIOOYM'YY lINRS EACHOCCUPRENCE i 300,000 A A TORFNTE� PREMISES Eeov�emx 3 as-ev-xsasa anv�o+s O�H1Y1018 AAEOE%P�"M�^^�^^^^� s 69EY-G5683 is the atlditional inwretl on toNilxois l tON1/3a18 sxou�o nxr or TMe neove TIE EXPIMTOH OATE T ACCORORNCEWITITHEPOL ACORD 25 (2014I01) Tha ACORO nama antl IoBo are registeretl marks of ACORD eooi�viN�uav Q � � � � 0 IO POLICIES BE LRXCELLEO BEFORE HOl10E YALL BE UELIVEREO IN 100148fi 1328499 02-04P014