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HomeMy WebLinkAboutEncroachment- Moss J Ruedinger > II I I�IIIII II I�� i Agreement 8 4 : � 7 Encroachment A g Tx43317�8 Document Number NATALIE STROHMEYER REGISTER OF DEEDS RECORDED ON: 0 /21-/201 08:49 AM RECORDING FEE: PACE : iRecordingArea Name and Return Address City Attorney's Office PO Box 1130 Oshkosh,W154903-1130 -_ . 91335220000 Parcel Identification Number CITY OF OSHKOSH AND PROPERTY OWNER This document drafted by: David J.Praska,Deputy City Attorney City of Oshkosh,Wisconsin May 25, 2018 1 " , REVOCABLE ENCROA CHMENTAGREEMENT This Agreement is between the City of Oshkosh(City),and Moss J.Ruedinger(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 3051 Mockingbird Way, but is more particularly described as follows: Lot 22 in THE MEADOWS ON SAWYER CREEK, in the Thirteenth Ward, City of Oshkosh, Winnebago County, Wisconsin. B. The south portion of the Property includes a storm water easement with storm water facilities, which is referenced through a storm water covenant on the subdivision Plat, referenced in the property covenants, and specifically identified by location on the subdivision's approved grading and drainage plan. A copy of the subdivision Plat and the grading and drainage plan are 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 and storm water drainage facility. 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 the storm water drainage facility,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. May 25, 2018 2 H. The Owner acknowledges and agrees that the subdivision's storm water drainage system, including the storm water drainage facility in Owner's back yard, 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 storm water drainage facility. 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 purpose of removing or protecting the Encroachment and only to the extent reasonably necessary to achieve those objectives. 1. This permission for an Encroachment expires without further notice when the Owner conveys or transfers the Property to any other person or entity. Expiration ofpermission 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 of the reasons that follow. The Encroachment must be immediately removed at Owners expense when permission is revoked. The Encroachment may be revoked if: May 25, 2018 3 1. The necessary operation, use, and function of the storm water drainage facility prohibits the continued existence of the Encroachment, 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 the storm water drainage facility; 3. The Encroachment interferes with or may potentially damage landscaping or other improvements, if any, within the easement and/or storm water drainage facility; 4. Local; state, or federal rules, laws, or guidelines relating to storm water drainage and/or drainage 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 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. May 25, 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 or the 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] May 25, 2018 5 PROPERTY OWNER: 3051 Mockin d W VREE .j/JbA,,,jay 0 By: -/moss f Rue&ger PUB\, co z STATE OF WISCONSIN OF ss. WINNEBAGO COUNTY Personally came before me this'1121 `day of—:2,'ac:----:t'—,2018,the above-named Moss J.Ruedinger,to me known to be the persons who executed the foregoing document and a owl edged the same. Notary Public,State of Wi si wLL -2 My Commission expires: CITY OF OSHKOSH By: And: Mar A. Rohloff, City Manager Pamela R. Ubrigg, City Cle c STATE OF WISCONSIN ss. WINNEBAGO COUNTY Personally came before me this I f— day of 1�,2018,the above-named Mark A.Rohloff,City Manager, and Pamela R. LJbrig,City Clerk,of the 61 vyof—osbkosh—,a m4uicipat 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 theyleXecuted the foregoing instrument as such officers as the deed of said corporation,by its authority-) ary Public,§t• io of Wiscon in My Commission expires: May 25, 2018 6