HomeMy WebLinkAboutEncroachment- Somsanouk Vongsa III i
8455148
Encroachment Agreement Tx':4333552
DOC# 1776385
Document Number NATALIE STROHMEYER
REGISTER OF DEEDS
1I6" NE A O COUNT` ,WX
RECORDED ON:
10/02/2018 08:x7 AM
RECORDING EEE: :30.00
PAGES: 8
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,W154903-1130
91.527750000
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J.Praska,Deputy City Attorney
City of Oshkosh,Wisconsin.
Septemh'er 12, 2018 1
REVOCABLE ENCROACHMENTAGREEMENT
This Agreement is between the City of Oshkosh (City), and Somsanouk Vongsa(Owner).
The parties enter into this Agreement for $1,00 and other good and valuable consideration, the
receipt and sufficiency of which is acknowledged.
A. The Owner is the fee owner of residential Property generally described as 3896 Cobblestone
Court,but is more particularly described as follows:
Lot Thirty-Two (32) of Block Five (5)in Second Addition to Windsor Green
Subdivision, in the Fifteenth Ward, City of Oshkosh, Winnebago County,
Wisconsin.
B. The north and west boundary of the Property includes sewer easements benefitting the City's
public utilities. A copy of the subdivision Plat is attached as Exhibit A, with the terms and
restrictions incorporated into this Encroachment Agreement.
C. No structure or object is allowed to be constructed on an easement, or to obstruct either in
whole or in part the design and function of approved storm water drainage facilities,without
the City's permission. The Owner requests that the City allow the installation of a chain link
fence within and across the easement.
D. The City will allow the requested fence, and this Encroachment Agreement describes the
terms under which the Owner's fence can be located within the storm water drainage facility.
E. The City's approval is based on the size, location, and type of fence proposed. A map
showing the location and brief description of the Encroachment is attached as Exhibit B. The
size, location, and type of the Encroachment shall not be changed without permission and
potentially amending this Agreement if the City believes that is necessary. It is a critical
term of the City's permission and of this Agreement that the Owner understand and agree
that this Encroachment does not change the easement terms, or the Property's storm water
obligations,or minimize the importance of the storm water drainage facility for the Property
and the subdivision as a whole. This Agreement does not create a property right to Encroach
into the storm water drainage facility,but instead is personal to the Owner and is completely
revocable by the City as described in this Agreement at its- discretion and without
compensation to the Owner or any others with an interest in the Property.
F. The City's permission for this Encroachment is contingent upon the initial,and continuing,
compliance with this Agreement and all applicable local, state, and federal codes and rules
that apply to easements, fences, and storm water laws, rules, and guidelines.
G. Everything related to the Encroaching fence is the responsibility and liability of the Owner.
This includes, without limitation, installation, maintenance, and repair, removing debris
related to the fence,and any and all personal or property damage to the extent caused by the
Encroachment. The City is allowing the Encroachment as an accommodation and does not
guaranty or warranty the stability or safety of this location.
September 12, 2018 2
H. The Owner acknowledges and agrees that the subdivision's storm water drainage system,
including the City's public facilities within the easement on Owner's property, may be
subject to maintenance,repair,replacement or improvement. To that end:
1. The Owner is solely responsible for removing or protecting the Encroachment if it
will be affected by the maintenance,repair, or replacement of any part of the City's
public facilities. The City will not be responsible for any costs related to the
Encroachment.
2. The City agrees to make reasonable efforts to notify the Owner in advance of any
maintenance, repair, replacement, or improvement project that may affect the
Encroachment.
3. If projects are planned that may affect the Encroachment, and the Owner elects to
remove or otherwise take actions to protect the Encroachment,such actions must be
taken so the Encroachment will not affect or delay the project.
4. The City has no obligation to remove, but shall be allowed to remove, at its sole
discretion, some or all of the Encroachment if a project requires the removal of the
Encroachment, The City retains sole discretion to determine whether or not any
project requires the complete or partial removal of the Encroachment.
5. The Owner shall not change or introduce any additional improvements to the
Encroachment. Any modification of the Encroachment shall require prior approval
from the City.
6. The City shall be reimbursed by the Owner for all costs and expenses of a project
caused by the existence of the Encroachment.
7. In the event the City is required to remove or protect the Encroachment for any public
purpose,the Owner gives the City permission to enter,access,and alter the Owner's
Property for the sole and limited purpose of removing or protecting the
Encroachment and only to the extent reasonably necessary to achieve those
objectives,
I. This permission for an Encroachment expires without further notice when the Owner
conveys or transfers the Property to any other person or entity. Expiration of permission for
the Encroachment also occurs where the Owner forms a different entity to own the Property
in whole or in part of which they are the sole or partial owner. The Encroachment shall be
immediately removed upon expiration of the City's permission. Any delay by the City of
enforcing this provision shall not act as a waiver of any City right. The City may take any
available legal action regarding Encroachments that are not promptly removed.
J. Due to the nature of the City's permission for this Encroachment,the Owner is not eligible
for,and specifically disavows,any right to receive compensation of any kind for the removal,
alteration, in whole or in part, and whether temporary or permanent, of the Encroachment
K. The City is allowed to revoke its permission for the Encroachment for any ofthe re,asons that
follow, The Encroachment must be immediately removed at Owners expense when
permission is revoked, The Encroachment may be revoked if:
September 12, 2018 3
1. The necessary operation,use,and function of any City public utility facility using the
easement,as well storm water drainage features,prohibits the continued existence of
the Encroachment,to be determined at the sole discretion of the City;
2. The existence of the Encroachment interferes with any rule, law, standards, public
policy, or the orderly operation and/or maintenance of a City public utility and
associated facilities;
3. The Encroachment interferes with or may potentially damage required landscaping or
other improvements, if any, within the easement;
4. Local,state,or federal rules,laws,or guidelines relating to the City's public utilities
and associated facilities prohibit the continued location of the Encroachment;
5. The Owner fails to properly maintain, or repair the Encroachment;
6. The Owner fails to provide the City with annual written proof that the Encroachment
is covered by the required insurance
L. In the event the Encroachment falls into disrepair, or upon the failure of the Owner to
perform any other material condition of this Agreement,the City may,but is not obligated to,
remove and dispose of the Encroachment at Owner's expense.
M. Both parties understand and agree that accidents and incidents related to City actions and
public facilities may result in lawsuits or threats of lawsuits against the City. 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, and to the extent caused by the Encroachment.
The Owner shall protect, hold harmless, and indemnify the City of Oshkosh against all
actions, claims and demands of any kind or character whatsoever which are related to the
Encroachment, and to the extent caused by the Encroachment. This hold harmless and
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 permission
granted by the City.
N. At all times during which the Encroachment exists,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 caused 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's insurance shall include the City of Oshkosh as an additional insured
on its policy for claims,liabilities,and damages related to the Encroachment. The Owner's
insurance shall provide primary coverage and that any insurance or self insurance maintained
by the City of Oshkosh, its officers, council members, agents, employees or authorized
volunteers will not contribute to a loss. The Owner shall annually provide the City with
proof of insurance for the Encroachment.
September 12, 2018 4
0. The City's permission allowing the Owner to construct the Encroachment is personal to the
Owner, is not intended to change the nature or importance of the easement,public utilities,
any storm water drainage facility, or to waive any legal or governmental regulatory rights.
Permission for the Encroachment cannot be transferred or assigned to any other person or
entity,whether voluntarily or involuntarily. Any subsequent owner of the Property shall be
required to obtain a new Encroachment Agreement personal to that new owner. The
Owner's rights contained in this Agreement do not attach to property and do not run with the
land, but may be recorded with the Register of Deeds for notice purposes.
P. The Owner's responsibilities and liabilities pursuant to this Agreement remain in effect even
if other persons, contractors, and agents perform work related to the Encroachment on
Owner's behalf.
Q. The Owner remains responsible for any actions taken by any of Owner's tenants,licensees,
invitees,or property of any tenant,or service provider that are related to this Agreement. The
Owner also retains the responsibilities of this Agreement regardless of the terms of any
separate private agreement with any person related to the Property which may also relate to
the Encroachment.
R. This Agreement does not affect any other responsibility of the Owner to the City.
S. This Agreement is solely for the benefit of the parties to this Agreement, and it is not
intended to benefit any third party or any successor in interest of the Property.
T. The election to enforce or not enforce any term of this Agreement, or any statute, code, or
rule,as well as the timing of such 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 in the
future.
U. This Agreement shall incorporate all immunities and limitations provided to and protecting
municipalities within the Wisconsin Statutes, regardless of whether a claim is based upon
contract,tort, or other theory.
This Agreement shall become effective upon the last date a party signs below.
[SIGNATURE PAGE FOLLOWS]
September 12, 2018 5
PROPERTY OWNER:
f ')
By: 7w�
Somsanouk Vongsa
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this day of
Ombldc 2018,the above-named Somsanouk Von
to be the person who executed the foregoing document and ackn(Avlcdged the,same.
Notary Public, State of W-is I NOTARY
My Commission expires: Vn PUBLIC
CITY OF OSHKOSH GOB
W
By . And:Mark A. Rohloff, City Manager Pamela R. Ubrig, Cit Clerk
STATE OF WISCONSIN
)ss.
WINNEBAGO COUNTY
Personally came before me this cA day of ()Vw.A�,2018,the above-named Mark k Rohloff,City Manager,
and Pamela R.Ubrig,City Clerk,of the City of Oshkosh,a mun'icipal 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 authorit
"�uryv=ublic.� ate of in
Sir
My ComnlissionSt expires: 4
September 12, 2018 6
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