HomeMy WebLinkAboutEncroachment Agreement 3450 Vinland Street 8677058
13613
Tx:4503492
Encroachment Agreement DOC# 1842623
NATALIE STROHMEYER
Document Number REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
02/12/2021 10:51 AM
RECORDING FEE: 30.00
PAGES: 10
Recording Area
Name and Return Address
ttC iTi�'�
� '3 O;
• City�.� ace
PO Box 1130
Oshkosh,WI 54903-113t
�' A
91250170100
Parcel Identification Number
`-nt'` RECEIVED
CITY OF OSHKOSHMAR Q j 2021
AND
CITY CLERK'S OFFICE
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh,Wisconsin
January 4, 2020 1 \61
4
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh(City),and Wisconsin Independent Christian
Schools,Inc. (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.
A. The Owner is the fee owner of Parcel Number 91250170100 and is commonly known as
3450 Vinland Street, Oshkosh(Property),which is more particularly described as follows:
Legal Description attached as Exhibit A
B. The Property borders the Vinland Farms Subdivision on the North, South, and East sides.
Vinland Road borders the Property along its west boundary. City benefits from a storm
sewer Easement in the Vinland Farms subdivision that ends at the Property's south
boundary. The Easement was granted and identified in the plat for the Vinland Farms
subdivision,which was recorded with the Winnebago County Register of Deeds on April
24, 1996, as Document Number 933868. The subdivision Plat is attached as Exhibit B.
C. The Owner is adding to its current facilities on the Property and as a result is installing storm
water detention basins, swales, and other storm water features. Owner proposes to connect
its private storm water facilities to the City's pipe in the Storm Sewer Easement in the
Vinland Farms Subdivision. This connection using a proprietary storm water sewer device
would be installed in a manner substantially conforming to the location and description as
identified in Exhibit C, which is attached to this Agreement.
D. No structure or object encroach into or obstruct a City Easement without the City's
permission.The proposed connection of private storm water facilities and the City's public
facilities using a proprietary storm water sewer device therefore requires City permission
before installation.
E. The City has reviewed the Owner's request to allow its proprietary storm water sewer device
to Encroach into the Storm Sewer Easement. The City will allow this Encroachment
provided its construction is materially similar to the design and specifications submitted for
the City's approval, which is attached as Exhibit C, and subject to the terms of this
Encroachment Agreement.
F. A material component of this Agreement is the explicit understanding that the City's
permission allowing the Encroachment is revocable without cost to the City,does not create
or give any property right to the Owner or others who have, or may have in the future, any
interest in the Property, and the connection continues to be the sole responsibility of the
Owner with the City being held harmless. This Encroachment is personal to the Owner and
is completely revocable by the City.
G. The City's permission for this Encroachment is contingent upon the initial, and
continuing, compliance with all applicable local, state, and federal statutes, codes, and
rules. The Encroachment shall comply with City Ordinances, and also state and federal
January 4, 2020 2
•
laws and regulation,regarding related subjects including parking, setbacks, landscaping,
fencing, zoning,property maintenance,permitting, and public nuisance.
H. The Owner agrees to be solely responsible for the installation and maintenance of the
Encroachment, and is solely responsible for any and all personal,property, and all other
damage caused by the Encroachment.
I. Snow, ice, debris, or any materials shall not be moved on to or allowed to remain in the
Encroachment area, nor moved on to any part of the City's Easement.
J. The Owner is solely responsible for constructing,maintaining,repairing, and replacing
the Encroachment. 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/or long term
viability, stability, and safety of the Encroachment. The Encroachment is and always
remains the sole responsibility and liability of the Owner.
K. The Owner acknowledges and agrees that the City's Storm Sewer Easement, and the
facilities located therein, is subject to maintenance, repair, grading, and replacement. To
that end,
1) 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 sewer
and drainage easement. The City will not be responsible for any costs related to
the disruption, removal, or repair of the Encroachment.
2) The Owner is solely responsible for protecting the Storm Sewer Easement, and all
City facilities located therein, from adverse effects related to the existence of the
Encroachment.
3) In the event that the City is involved with the maintenance,repair, or replacement
of facilities and features within the Storm Sewer Easement, the City agrees to
make reasonable efforts to notify the Owner of these projects or activities in
advance.
4) 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 City's anticipated work.
5) The City shall not be responsible for any damage to the Encroachment, or any
Owner structure,improvement, feature,facility, or landscaping it has installed
within the City's Easement,related to any public maintenance, repair, or
replacement project in the Storm Sewer Easement.
January 4, 2020 3
►m.
6) The City or other party undertaking the work within the storm sewer and drainage
easement 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,
repair, and/or replacement requires such removal.
7) The Owner shall be responsible for reinstalling/reconstructing the Encroachment
regardless of who removed the Encroachment.
8) In the event the City or other party with lawful authority is required to remove or
protect the Encroachment, or any Owner facilities or property located on the
Encroachment, for purposes described in this Agreement,the Owner gives the
City permission to enter, access, and alter the Owners' larger 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.
L. Due to the revocable nature of the City's permission, and the lack of any property rights
granted through this Encroachment,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.
M. Although the City acknowledges the Owner's investment in constructing the
Encroachment, both parties acknowledge that at some point in the future,the City's
lawful use of the public Easement may conflict with the Owner's private Encroachment.
Such conflicts will need to be resolved in favor of the City's installation,maintenance,
and use of the public facilities within the Easement. However, except for emergencies,
the City agrees to consult with the Owner and in good faith assist with any approvals or
changes necessary to ensure the Owner's reasonable use of its Property. The City's legal
obligations to state and federal law, as well as its obligations to its taxpayers and best
practices, may require certain changes to the Owner's allowed use of the Encroachment
area. Both parties agree to act in good faith to resolve any issue that is required to allow
the City to properly operate and maintain its public utilities and facilities. To that end,the
following issues may in the future adversely affect, or limit,the Owner's use of the
Encroachment:
1) The use and/or proper function of the storm sewer and drainage easement
prohibits the continued existence and location of the Encroachment, with a
particular prohibition described in statutes, court cases,rules, regulations, or best
practices, all at the City's sole discretion;
2) The continued existence of the Encroachment would limit the intended use of the
Storm Sewer Easement as described within the recorded Plat,with such
determination to be made solely at the discretion of the City;
3) The City determines that the Encroachment adversely affects the functioning of
the facilities within and operation of the Storm Sewer Easement;
January 4, 2020 4
4) The Encroachment is increased, expanded,materially changed, and/or moved
without permission;
5) The use of the Encroachment or the Encroachment itself is prohibited by any
local, state, or federal rules, laws, or guidelines, and is furthermore prohibited or
is detrimental to any public facility located in the Storm Sewer Easement;
6) The Owner fails to properly maintain,repair, or replace the Encroachment; The
Owner fails to provide the City with annual written proof that the Encroachment
is covered by the required insurance.
7) Any other lawful reason or circumstance,including without limitation a breach of a
term of this Agreement.
N. The Encroachment shall be removed and the surface restored as required by the Municipal
Code if the City's permission for the Encroachment is revoked or expires. In the event that
the Owner fails or refuses to remove the Encroachment that has either been revoked,or has
expired, 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.
O. The Owner releases and will indemnify 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.
P. Both parties understand and agree that accidents and incidents related to the Storm Sewer
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.
Q. At all times that the Encroachment is located in the City's Storm Sewer 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.
January 4, 2020 5
R. 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.
S. This Agreement is solely for the benefit of the City and the Owner,and this Agreement is not
intended to benefit any third party.
T. 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.
U. 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.
V. 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.
W. All parties signing below state that they have the authority to enter into this Agreement
without limitation or restriction.
X. 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 any separate
entity,even if the Owner as defined above is the sole or partial Owner of the separate entity.
SIGNATURE PAGE FOLLOWS
January 4, 2020 6
Dated: /1/4-8/7_o Z I
WISCONSIN INDEPENDENT CHRISTIAN SCHOOLS
ti,,c x..,4,14,./
Bradley Dunn, Head Administrator
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY ) r
Personally came before me this 20 day of vAh t1 U 2021,the above-named Bradley Dunn to me known to be the
person who executed the foregoing document and acknowledged the same.
&la
Notary Publict of Wisconsi /2o2
My Commission a ires: O /O 1
CITY OF OSHKOSH 1
By: ---"0--- -- -e-,---- And:
Mark A. Rohloff, City Manager Pamela R. Ubrig, C Clerk
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally came before me this U day of Fib`'(al 2021,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 deed of said corporation,b(N)i al thori ,
Notary Public,State of Wisco sin l`r� 1 ""�}-',
My Commission expires: 11 i 5 I ava f
January 4, 2020 7
Legal Description
Part of the Southwest '/ of the Northeast % of Section Two (2),Township
Eighteen(18)North, Range Sixteen(16) East,City of Oshkosh°Winnebago
County, Wisconsin, described as follows; Commencing at the North 1/4
corner of saki Section 2; thence South 00°08'20"West along the West line
of said Northeast A a distance of 1,322.88 feet to the point of beginning;
thence North 89°3S'55" East, along the North line of the Southwest l%of the
said Northeast 14,a distance of 979.35 feet; thence South 00°06°15"West
660.02 feet; thence South 80°361S5" West 979.74 feet; thence North
G0°08'2Q"East along the West line of said Northeast%a distance of8fi0.03
feet of the point of beginning; reserving the West 33 feet for roadway
purposes.
Exhibit A—Page 1 of 1
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