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Home My WebLink AboutEncroachment- The Patriarchs SubdivisionDocument Number Encroachment CITY OF OSHKOSH OWN] PROPERTY OWNER This document drafted by: David J. Praska, Deputy City Attorney City of Oshkosh, Wisconsin January 8, 2020 8573594 Tx:4422126 DOC#1810215 NATALIE STROHMEYER REGISTER OF DEEDS WINNEBAGO COUNTY, WI RECORDED ON: 02/18/2020 11:14 AM RECORDING FEE: 30.00 PAGES: 10 Name and Return City Attorney's Office PO Box 1130 Oshkosh, W! 54903-1130 91416581800 Parcel Identitication Number RECEIVED FEB 2 4 2020 CITY CLERK'S OFFICE 1 S°I ENCROACHMENTAGREEMENT This Agreement is between the City of Oshkosh (City), and David Velasco and Carol Velasco (collectively, Owner). The parties enter into this Agreement for $1.00 and other good and valuable consideration as described in this Agreement, the sufficiency and receipt of which is acknowledged. 1) The Owner is the fee owner of Property identified as Parcel Number 91416581800 and commonly known as 55 Jacob Avenue, which is more particularly described as follows: Lot Eighteen (18) in THE PATRIARCHS SUBDIVISION, in the Fourteenth Ward, City of Oshkosh, Winnebago County, Wisconsin. 2) The Property is required to comply with the City's approved grading and drainage plan for the Patriarchs subdivision, as stated in the City of Oshkosh Covenant identified on the Plat recorded with the Winnebago County Register of Deeds on November 5, 2001,-as Document Number 1153048. The subdivision Plat is attached as Exhibit A. 3) The City's approved grading and drainage plan identifies part of the Property's south and west boundaries as an Area Dedicated for Storm Water Detention. The existence of this storm water drainage feature limits the use of the Property within this feature to make sure the storm water drainage in this area is not adversely affected. The Patriarchs grading and drainage plan is attached as Exhibit B. 4) The Owner proposes installing a three rail steel fence within and across the subdivision's storm water detention and drainage feature. The fencing would be installed in a manner substantially conforming to the location and description as identified in Exhibit C, which is attached to this Agreement. 5) No structure or object is allowed to encroach into or obstruct the storm water detention and drainage feature as identified on the City's approved grading and drainage plan without the City's permission. The proposed fence would therefore require City permission before installation. 6) The City has reviewed the Owner's request to allow the construction of a three rail steel fence encroaching into the storm water detention and drainage feature.- The City will allow the placement of the fence subject to the terms of this Encroachment Agreement. A material component of this Agreement is the explicit understanding that the City's permission allowing an Encroachment does not create or give any property right. This Encroachment is personal to the Owner and is completely revocable by the City. 7) This Encroachment consisting of a fence will be allowed to project into the storm water detention and drainage feature that is required by the City's approved storm water drainage feature, provided that the actual Encroachment constructed is materially similar to the design and specifications submitted for the City's approval, which is attached as Exhibit C. January 8, 2020 8) The City's permission for this Encroachment is contingent upon the initial, and continuing, compliance with all applicable local, state, and federal codes and rules. The Encroachment shall comply with City Ordinances, and state and federal laws and regulation regarding related subjects including setbacks, fencing, zoning, property maintenance, permitting, and public nuisance. 9) The Owner agrees to be solely responsible for the installation and maintenance of the Encroachment, and is solely responsible for any and all personal or property damage caused by the Encroachment. 10) The Owner is solely responsible for securing, maintaining, repairing, and replacing the Encroachment. The Owner is responsible for identifying accurate property boundaries. The City's permission and approval of this Encroachment is not meant to state or imply that the City guaranties or warranties the short and long term stability and safety of the Encroachment. The Owner always retains the responsibility and liability for the Encroachment. 11) The Owner acknowledges and agrees that the Area Dedicated for Storm Water Detention identified on the City's approved grading and drainage plan is subject to maintenance, repair, grading, and replacement. To that end, a) The Owner is solely responsible for removing, or protecting if the circumstances warrant, the Encroachment if it will be affected by any public or non-public maintenance, repair, or replacement projects or activities within the storm water detention and drainage feature. The City will not be responsible for any costs related to the disruption or removal of the Encroachment. b) The Owner is solely responsible for protecting all storm water features related to the City's approved grading and drainage plan from adverse effects related to the existence of the Encroachment. c) In the event that the City is involved with the maintenance, repair, or replacement of the storm water detention and drainage feature that is planned near the Encroachment, the City agrees to make reasonable efforts to notify the Owner of these projects or activities in advance. d) If the Owner elects to remove or otherwise take actions to protect the Encroachment, such actions must be taken in a manner approved by the City or any other party with authority to undertake such work, and undertaken within the timeframe for the anticipated work. e) The City shall not be responsible for any damage to the Encroachment, or any structure or hardware attached to the Encroachment. f) The City or other party undertaking the work within the Area Dedicated for Storm Water Detention has no obligation to remove, but shall be allowed to remove, at its sole discretion, the Encroachment in the event that a project involving maintenance, repairs, and/or replacement requires such removal. January 8, 2020 g) The Owner shall be responsible for reinstalling / reconstructing the Encroachment regardless of who removed the Encroachment. h) In the event the City or other parry with lawful authority is required to remove or protect the Encroachment for purposes described in this Agreement, the Owner gives the City permission to enter, access, and alter the Owners' Property at the location of or adjoining the Encroachment area for the sole purpose of removing or protecting the Encroachment and only to the extent reasonably necessary to achieve those objectives. 12) Due to the revocable nature of the City's permission and the lack of any property rights granted in terms of placing the fence within the storm water detention and drainage feature, the Owner is not eligible for, and specifically disavows, any right to receive compensation of any kind for the removal, alteration, or limited accessibility, in whole or in part, whether temporary or permanent, of the Encroachment. 13) The City is allowed to revoke its permission for the Encroachment at its sole discretion for any of the following reasons: a) The use and/or proper function of the storm water detention and drainage feature prohibits the continued existence and location of the Encroachment, with a particular prohibition described in statutes, court cases, rules, regulations, or best practices; b) The continued existence of the Encroachment would limit the intended use of the storm water detention and drainage feature as described within the City's approved grading and drainage plan, with such determination to be made solely at the discretion of the City; c) The City determines that the Encroachment adversely affects the functioning of storm water detention and drainage feature; d) The Encroachment is increased, expanded, materially changed, and/or moved without permission; e) The Encroachment is prohibited by any local, state, or federal rules, laws, or guidelines relating to any public facility located in the storm water detention and drainage feature; f) The Owner fails to properly maintain, repair, or replace the Encroachment; g) The Owner fails to provide the City with annual written proof that the Encroachment is covered by the required insurance. 14) In the event that the Owner fails or refuses to remove the Encroachment that has either been revoked, or has otherwise fallen into poor condition or disrepair, the City may, but is not required to, enter Owner's property to remove and dispose of the Encroachment at Owner's expense. 15) 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 January 8, 2020 4 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. 16) Both parties understand and agree that accidents and incidents related to the storm water detention and 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. 17) At all times that the Encroachment is located in the City's Storm water detention and drainage feature, 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. 18) 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. The Owner shall be responsible for the actions of the Owner's contractors, agents, or representatives. 19) This Agreement is solely for the benefit of the City and the Owner, and this Agreement is not intended to benefit any third parry. 20) 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. 21) 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. The City does not waive such immunities and limitations and shall be able to rely on them through this Agreement. 22) The Encroachment shall not constitute a property right and the City's permission therefore shall not run with the land. This Agreement may be recorded for the purpose of providing notice and clarity of the fact that property rights are not granted and the City's authority is not limited. 23) All parties signing below state that they have the authority to enter into this Agreement without limitation or restriction. January 8, 2020 5 24) 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. 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 January 8, 2020 6 Dated: i 116 ko PROPERTY OWNER: 55 Jaffe Avenue // � V David Velasco Carol Velasco STATE OF WISCONSIN ) as. WINNEBAGO COUNTY Personally came beforeme this i T-t day of 746911V 2020, the above -named David Velasco and Carol Velasco to me known to be the persons who executed the foregoing documen and acknowledged the same. r.34'4 , Notary Public, State of Wisc m My Commission expires: D(A0 CITY OF OSHKOSH By: And: ^ M�rk A. Rohloff, City Manager Pamela R. Ubrig, City lerk STATE OF WISCONSIN ) ) as. WINNEBAGO COUNTY ) Personally came before me this a� day of 2020, the above -named Mark A. Rohloff, City Manager, and Pamela R. Ubrig, City Clerk, of the City of Oshkosb, a muniorporation, 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. T'" p �� Notary Public, State of Wiscons' My Commission expires: 10 / January 8, 2020 7 v ?EEtt a4ffp��X)r GS��9�N:E�x #£aaf�s�r=Pv gpiiifafage x at2g�t. �9ai�xYgF53 tSfht�s�y� iF q 3>Sf #s�k1iifd^-�Cpsff9'3aS#i4aii��rfi`yi. <•��j�$�#1,£°AYp&y8'�ieSP 85i�H#p$i'#�ti4ffsO��Siy„Ia �ikita,c�d#� . �$t`39YE S Wiy r f jS e t ;i aF n iny y E { J ix I hs` IIIItte 1, g £ Pi'.�l ,Y ('�i y�({;• i�i rgaa#eX � blt I 1 5..X :N i 9 s yy 11i1 y V M �• P it i 1, ffF Ui PP a x$EVE-:�#P.i fix. d ds Alis �,?: a r p # } .� v _ ti fir; R.. y it �y.✓✓� I� e�--�-. 11,E t#��pF,�; X' � x t Exhibit A - Page 1 of 1 a fP Fg lid 55 y p yi xl Wk, rrt t-Z gill "45 6R �e xg C AAell / rak F l rj ri L r S?t laffl �I of � 1 r 14� 1 1 I 1"la! i a r } 62, Is 1 el' Y x 1 kl I i1v 'Nd3 nruxa I _ 1II>1» n b �Fx 100 Ff 1.. i x 83 1v 3 gg Sv MUM x as p RI 61 8a § 9 43 - .. £I '3Gtl '¢AIM tiIp 4 eQ 1'ja. gg � u qq $ice �$ L` �� SQ n(� r�++( gg 1 qfa e$3�o. $tltltltlR 4$,pe °z ?�_ .4lid t g�� 4Z��Id a u a 5.8$gpg. S E�, .. f 4 hx p. .•el.. ry J. i1. 1 EXHIBIT B - Page 1 of 1 i I EASEMENT- DRAINAGC EASEMENT- DRAINAGE EA �5i?Al#�td4GE el a I. EASEMENT - DRAINAGE (� 2p ✓ u{E�$Ay-1SE rNT -DRAINAGE