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HomeMy WebLinkAbout472 Sunnybrook Drive 8 2 8 1 3 5 3 Tx:4203233 Encroachment Agreement 1713835 Document Number REGIST'ER'S OFFICE WINNEBAGO COUNTY, WI RECORDED ON 05/26/2016 9.12 AM CHRISTOPHER LARSON DEPUTY REGISTER OF DEEDS RECORDING FEE 30.00 PAGES: 8 Recording arca Naive aid Return Address City Attorney's Office PO Box 1130 Oshkosh,WI 54903-1130 91622800000 Parcel Identification Number CITY OF OSHKOSH AND PROPERTY OWNER This document drafted by: David J. Praska,Assistant City Attorney City of Oshkosh, Wisconsin 1 JUN 01 MCI April 4, 2016 1 i ENCROACHMENTAGREEMENT This Agreement is between the City of Oshkosh (City) and Daniel E. Buttke and Chelsea N. Buttke (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 91622800000 and commonly known as 472 Sunnybrook Drive, Oshkosh (Property). The City holds a Detention Area Easement(Easement) over and through the eastern sixty(60) feet of the Property as identified on the Countryside Estates North 1 st Addition, which was recorded with the Winnebago County Register's Office on December 23, 1997, with document number 992952, which is attached and incorporated into this Agreement as Exhibit A, and with the Property more particularly described as: Lot Eighty (80) in COUNTRY ESTATES NORTH 15t ADDITION, in the Sixteenth Ward, City of Oshkosh, Winnebago County, Wisconsin. The Owner desires to install an elevated pool deck within and across the City's Detention Area Easement. The Owner proposes the installation of an elevated pool deck approximately 8" above the ground surface of and approximately six (6) feet into the eastern portion of the City's Detention Area Easement(Encroachment). The elevated pool deck 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 pool deck construction and maintenance in a manner that will allow the continued storm water detention, including maintenance, as designed for the Detention Area 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. 1. The City grants permission to the Owner to construct an elevated pool deck which will encroach into the City's Detention Area Easement, provided that the Encroachment is materially similar to the location and description submitted for the City's review and 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 pool deck 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 April 4, 2016 2 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 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, simply because it allows this Encroachment. 5. The Owner acknowledges and agrees that the Detention Area 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 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 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 within the Detention Area 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 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 Detention Area Easement prohibits the continued location of the Encroachment; b. The City determines that the Encroachment adversely affects the functioning of Detention Area 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 Detention Area 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. April 4, 2016 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 Detention Area Easement 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 Detention Area 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 $500,000.00 for each occurrence for bodily in'u property damage liability and $500,000.00 general acs ' e caner shall #�''���� include the City of Oshkosh as an additional ' n 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 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 Owner's rights contained in this agreement relate to the Owner signing this April 4, 2016 4 document, and do not attach to property or run with the land. This Agreement may be recorded with the Winnebago County Register of Deeds for notice purposes. Permission for the Encroachment is revoked immediately and without notice as of the time that any person or entity other than 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 defined above is the sole or partial Owner of the entity. [SIGNATURE PAGE FOLLOWS] ApHl 4, 2016 5 Dated this day of April, 2016, ` e� P AP owlvER, O rfF1110l Daniel E. Buttke Chelsea N. Buttke Siy1��-k(r u-i" Ivt IU 6,f�ke, oo Illy/ STATE OF WISCONSIN ) 06mr�zecl��iortstAc-e l avZ Zwjj ss. La m rn. X 1` 0(–W_ WINNEBAGO COUNTY } ,�,�-e�/f t �� r� Personally came before me this day of April,2016,the above-named Daniel .Buttke andmGJ;"@a-W I Vie, to me known to be the persons who executed the foregoing document and acknowledged the same. L - SHANNON M LOSINSKE Notary Public, State of Wiscon in Notary Public My Commission expires : O State of Wisconsin CITY OF OSHKOSH -- ' i By: And: Ma A. Rohloff, City Manager Pamela R. Ubrig, City Cferk STATE OF WISCONSIN ) ss. WINNEBAGO COUNTY ) Personally came before me this day of 2016,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. — Notary Public,State of Wisc nsin My Commission expires: J ! 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