HomeMy WebLinkAboutEasement, 1245 Pheasant Creek Drive lila
8284975
Tx:4205851
Encroachment Agreement 1715397
DocumeutNumber REia% €FR'S OFFICE
WINNEBAGO COUNTY, WI
E: RDE D gra
06/15/2816 8:58 AM
CHRISTOPHER LARSON
DEPUTY REGISTER OF DEEDS
RECORDING FEE 30.00
PACZES: 8
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,Wl 54903-1130
91342503700
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David T. Praska, Assistant City Attomey
City of Oshkosh, Wisconsin
11lIai•ch 30, 2016 1
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh (City) and Zachary K. Frazier and
Susan L._Frazier(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
91342503700 and commonly known as 1246 Pheasant Creek Drive, Oshkosh (Property).
The City holds a Drainage Easement (Easement) over and through the westerly twenty
(20) feet of the Property as identified on the First Addition to Pheasant Creek Farm Plat,
which was recorded with the Winnebago County Register's Office on September 5, 2002
with document number 1198127, which is attached and incorporated into this Agreement
as Exhibit A, and with the Property more particularly described as:
Lot Fifty-one (51) in FI RST ADDITION TO PHEASANT CREEK FARM,
in the Thirteenth 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 chain link fence along the western Property boundary,
and ten (10) feet east of the western Property boundary, both of which will be 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 between City and Owner follow.
1. 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 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 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.
1Llareh 30, 2016 2
' r
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
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 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 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 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 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 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 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;
ilklarch 30, 2016 3
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.
9. Both parties understand and agree that accidents and incidents related to the
Drainage 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 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 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 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.
Ilarch 30, 2016 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 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 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]
ilklarch 30, 2016 5
m4,
Dated this_W"'day of , 2016.
OWNER,
' Za dry K. rrazier Susan L. razie
STATE OF WISCONSIN )
) 5S.
WINNEBAGO COUNTY ) 1y
Personally came before me this 4 1 day of'ApI ,2016,the above-named Zachary K.F azire)s
an L.
Frazier,to me known to be the persons who executed the foregoing docu t nd acknowle he
MICHAEL J. Ff�� blic, tate Wisconsin
Notary Pubti�"' ommissio plres : (��
State of Wiscon in
CITY OF OSHKOSH
B And
Mar A. Rohloff, City Manager Pamela R. Ubrig, Cit Clerk
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY )
Personally came before me this 10 day of A pf 2096,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 dead of said corporation, by its authority.
Notary Public, State of Wisconsin
My Commission expires: _ t
N m-ch 30, 2016 6
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