HomeMy WebLinkAboutBradford J Lasky and Maureen Lasky-1319 Bayshore Dr IIIIIII � �I � II
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Agreement NATALIE STROHMEYER
REGISTER OF DEED
Document Number WIN E AGO COUNTY,WI '
RECORDED ON:
11/15/2018 08:57 AM
RECORDING FEE:
PAGES.
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,W154903-11.30p
90803630000
Parcel Identification Number
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CITY OF OSHKOSII
AND
PROPERTY OWNER j
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
October 17, 2018 1
AGREEMENT
This Agreement is between the City of Oshkosh(City),and Bradford J.Lasky and Maureen
M, Lasky (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 90803630000 and
commonly known as 1319 Bay Shore Drive,which is more particularly described as follows:
Lots One(1) and Two (2)and the Westerly V2of Lake Street(now vacated)
lying Easterly of and adjacent to said Lot One(1) and South of the
extended Southerly line of Bay Shore Drive, all in Block Thirty-one(3 1)
in S.F. MILLER'S SUBDN, Of Lot 12,in the Eighth Ward, City of
Oshkosh,Winnebago County,Wisconsin,per Leach's Map of 1894.
2) The City holds a statutory Utility Easement (Easement) over and through a portion of the
Westerly 1/2 of Lake Street (now vacated), with the easement identified within the street
vacation document Recorded with the Winnebago County Register of Deeds on May 19, 1986
as Document Number 652023. The City subsequently released a six(6)foot by thirty(30)foot
section of its statutory Easement as authorized by Common Council Resolution 17-600 on
December 12,2017 and subsequent Release document recorded with the Register of Deeds. A
map of the area subject to the partial release is attached as Exhibit A.
3) The Owner proposes installing a fence and landscaping that may encroach upon the City's
Easement(the"Owner Improvements"). Specifically,the Owner proposes a wood fence along
the East and South Property boundary and landscaping will be installed along the fence on the
Eastern Property line, which may encroach into the City's Easement. The fencing and
landscaping will be installed in a manner substantially conforming to the location and
description as identified in Exhibit B,which is attached to this Agreement.
4) No structure or object is allowed to encroach into a City easement without the City's
permission, The proposed Owner Improvements may encroach into the City's statutory
Easement and therefore, to avoid any current litigation relating to the respective rights of the
dominant and servient estates due to the positions of the City(with the position that the Owner
Improvements encroach upon and interfere with the Easement access and rights) and the
Owner(with the position that the Owner Improvements do not encroach or interfere with the
Easement access and rights), the Owner and City are entering into this Agreement to
conditionally allow installation of the Owner Improvements. By entering into this Agreement
neither party waives and instead explicitly reserves all rights the Owner or City may have
relating to their respective rights related to dominant and servient estates.
5) The City has reviewed the Owner's request to allow the Owner Improvements and the
possibility that it may encroach upon the City's statutory Easement, The City will allow the
placement of the Owner Improvements subject to the terms of this Agreement. A material
component of this Agreement is the explicit understanding that the City's permission allowing
a possible encroachment does not create, give, or waive any easement or property right. The
rights granted herein are personal to the Owner and are completely revocable by the City.
October 17, 2018 2
6) The Owner Improvements to be constructed shall be materially similar to the design and
specifications submitted for the City's approval, which is attached as Exhibit A.
7) The City's permission for the Owner Improvements is contingent upon the initial, and
continuing,compliance with all applicable local,state,and federal codes and rules. The Owner
Improvements 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.
8) The Owner agrees to be solely responsible for the installation and maintenance of the Owner
Improvements, and is solely responsible for any and all personal or property damage caused
by the Owner Improvements.
9) The Owner is solely responsible for securing,maintaining,repairing,and replacing the Owner
Improvements, The Owner is responsible for identifying accurate property boundaries. The
City's permission and approval of the Owner Improvements is not meant to state or imply that
the City guaranties or warranties the short and long term stability and safety of the Owner
Improvements, The Owner always retains the responsibility and liability for the Owner
Improvements.
10)The Owner acknowledges and agrees that public utilities and facilities,including those located
within the City's statutory Easement, are subject to maintenance,repair, and replacement. To
that end,
a) The Owner is solely responsible, at their expense, for removing, or simply protecting if
City believes that the circumstances allow protection rather than removal, Owner
Improvements if they will be affected by any public installation, maintenance, repair, or
replacement projects or activities within the Easement. The City will not be responsible
for any costs related to the protection,disruption, or removal of the Owner Improvements.
b) The Owner is solely responsible for protecting public utilities and facilities located in the
Easement from adverse effects resulting from the existence of the Owner Improvements
c) In the event that maintenance, repair, installation, or replacement of public utilities or
facilities in the Easement is planned,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 Owner
Improvements, such actions must be taken in a manner reasonably approved by the City
and within the timeframe for the City's anticipated work.
e) The City shall not be responsible for any damage to the Owner Improvements, or any
structure or hardware attached to the Owner Improvements.
f) The City has no obligation to remove,but shall be allowed to remove,at its sole discretion,
the Owner Improvements in the event that a public project involving access, installation,
maintenance, repairs, and/or replacement of public utilities and facilities within the
Easement requires such removal,provided the City has used reasonable attempts to notify
the Owner in advance and allowed Owner a reasonable time to remove or protect the Owner
October 17, 2018 3
Improvements. Notwithstanding the foregoing, the City may respond to emergencies
affecting its use of the Easement without notice but shall notify the Owner as soon as
practicable.
g) The Owner shall be responsible for reinstalling/reconstructing the Owner Improvements
if Owner desires to do so,regardless of who removed the Owner Improvements.
h) In the event the City is required to access,remove, or protect the Owner Improvements 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 location of the Owner's
Improvements for the sole purpose of removing or protecting the Owner Improvements
and only to the extent reasonably necessary to achieve those objectives.
11)Due to the revocable nature of the City's permission and the lack of any property rights granted,
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, for the Owner Improvements.
12)The City is allowed to terminate this Agreement at its sole discretion for any of the following
reasons:
a) The public access and use of the statutory Easement prohibits the continued existence and
location of the Owner Improvements, with a particular prohibition the result of increased
public costs for access, installation, operation, or maintenance due to the Owner
Improvements,or as described in statutes,court cases, rules,regulations,or best practices;
b) The continued existence of the Owner Improvements would limit the public access and use
of the Easement,with such determination to be made solely at the discretion of the City;
c) The City determines that the Owner Improvements adversely affects the functioning of
public utilities in the Easement;
d) The Owner Improvements are increased,expanded, and/or moved without permission;
e) The Owner Improvements are prohibited by any local, state, or federal rules, laws, or
guidelines relating to any public facility located in the public utility Easement;
f) The Owner fails to properly maintain,repair, or replace the Owner Improvements;
g) The Owner fails to provide the City with annual written proof that the Owner
Improvements are covered by the required insurance.
13)In the event that the Owner fails or refuses to remove Owner Improvements that encroach the
Easement and have either had their consent revoked hereunder, or have otherwise fallen into
poor condition or disrepair, the City may, but is not required to, enter Owner's property to
remove and dispose of such Owner Improvements at Owner's expense.
14)The Owner releases the City of Oshkosh, its employees, agents, elected officials, and
authorized volunteers (the "Released Parties") from all debt, claims, demands, damages,
October 17, 2018 4
actions and causes of action whatsoever to the extent they result from the Owner
Improvements,provided the same does not arise from the actions or inactions of the Released
Parties. The Owner shall protect and hold the City of Oshkosh harmless against all actions,
claims and demands of any kind or character whatsoever to the extent they result from the
Owner Improvements,provided the same do not arise from the actions or inactions of the City.
15)Both parties understand and agree that accidents and incidents related to the existence and use
of public utilities 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 to the extent they result
from the Owner Improvements,provided the same does not arise from the actions or inactions
of the City. 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.
16)The Owner's property liability insurance shall provide so called"all risk"coverage related to
the Owner Improvements that may encroach within the City's Easement, The Owner's
insurance shall provide reasonable coverage for potential damages to persons and property
caused wholly, or in part,by the Owner Improvements. Minimum insurance coverage related
to the Owner Improvements 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 Owner Improvements, The Owner shall annually provide the City with proof of insurance
for the Owner Improvements.
17)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 Owner Improvements, 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.
18)This Agreement is solely for the benefit of the City and the Owner, and this Agreement is not
intended to benefit any third party.
19)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 Owner Improvements.
20)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.
2 1)The installation of Owner Improvements shall not constitute a waiver or modification of any
Easement rights held by the City or the Owner. The City's permission, and the Owner's
acceptance thereof,does not grant or modify any easement or property right of either party and
therefore shall not run with the land. This Agreement may be recorded for the purpose of
providing notice of its limitations.
October 17, 20.18 5
22)All parties signing below state that they have the authority to enter into this Agreement without
limitation or restriction.
23)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 Owner
Improvements 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, unless the entity is related to Owner and Owner maintains full
control over such entity. Any delay in the City's enforcement of this Agreement shall not
adversely affect its right to pursue compliance with the Owner.
Dated:
Bradford J, Lasky M kar I. Lasky
STATE OF WISCONSIN
ss.
WINNEBAGO COUNTY
Personally came before me this_2_day of 2018,the above-named Bradford J.Lasky and Mpiireen
M.Laskey to me known to be the person who executed the foregoing document and acknowledged the same.
Notary Public,State of Wisconsin
My Commission expires:-1 It 0 12620
CITY OF OSHKOSH
A/
By: And:
Mark A. Rohloff, City Manager Pamela R. Ubri&C ity Clerk,,
STATE OF wiscoNsm
)ss.
WINNEBAGO COUNTY )
04
Personally came before me this vi _day day of_k4AL1Xj,1,2018,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 acknowled r d that they executed the
foregoing instrument as such officers as the deed of said corporation,by -authority.
Notary Pu ic)State of
Wi
My Commission expires:=�v�
October 17, 2018 6
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