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HomeMy WebLinkAboutEncroachment/250 W 6th 5.13.2024Document Number Encroachment Agreement CITY OF OSHKOSH "M PROPERTY OWNER This document drafted by: David J. Praska, Deputy City Attorney City of Oshkosh, Wisconsin DOC# 1922551 NATALIE STROHMEYE REGISTER OF DEEDS WINNEBAGO COUNTY, -1 RECORDED ON: 05/13/2024 11:17 AM RECORDING FEE: 30.01 PAGES: 8 Recording Area Name and Return Address City Afforney's Office PO Box 1130 Oshkosh, W1 54903-1130 90900010000 Parcel Identification Number February 15, 2024 1 ENCROACHMENT AGREEMENT This Agreement is between the City of Oshkosh (City), and 424 Oregon Street, LLC ("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 Tax Parcel Number 90900010000 and commonly known as 250 West Sixth Avenue. The Property is more particularly described as follows: Lot 1 of Certified Survey Map Number 5748, recorded with the Winnebago County Register of Deeds on July 08, 2005, as Document Number 1361929, all being part of Southeast %a of Section 23, Township 18 North, Range 16 East, Ninth Ward, City of Oshkosh, Winnebago County, Wisconsin. 2) The Property was created by various reconfigurations of original subdivision plats dating back to Leach's Map of 1894. The Property and surrounding area were originally comprised of a relatively standard grid configuration of small lots and streets within the Original Third Ward. These reconfigurations over the years combined many of the original lots. The combination of lots caused many of the original public street rights -of -way to be unnecessary and they were vacated. Some of the vacated rights -of -way contained public utilities that remain and are protected by statutory public utility Easements. The vacated rights -of -way, and the resulting statutory public utility Easements located within the Property are identified in the document filed with the Winnebago County Register of Deeds on December 9, 1954, as document number 218763. This document is not attached, but is acknowledged and incorporated by reference. 3) The Property also contains two Easements created by written grant benefitting the City and others. The first is a Storm Water Drainage and Access Easement recorded with the Winnebago County Register of Deeds on July 30, 2019, as document number 1794977. The second is an Electric Utility and Access Easement recorded with the Winnebago County Register of Deeds on July 30, 2019, as document number 1794978. Neither Easement is attached, but both are acknowledged and incorporated by reference. 4) The statutory Easements in vacated rights -of -way as well as the Easements by written grant identified above may also reference or include Easement rights of others. This Encroachment Agreement, however, only addresses the City's Easement rights. 5) The City's statutory Easements and Easements by written grant within the Property place certain limitations on the use of the Property. The Owner or a previous Property owner has installed a chain link fence around part of the Property. The fence crosses the City's Easements at several points and is thereby either contrary to the terms of the Easement Agreements, or otherwise materially interferes with the City's ability to access and maintain its Easement facilities. The fence has been installed at locations described in a map attached as Exhibit A. The map identifies those areas where the fence crosses the City's easements. 6) The City has reviewed with the Owner the location of the fence around the Property in an attempt to minimize the fence's impact on the City's Easements. After that review, some of the fence was moved and the resulting fence location is acceptable to the City, subject to compliance with the terms of this Encroachment Agreement. February 15, 2024 2 7) A material component of this Agreement is the explicit understanding that the City's permission allowing the fence Encroachment does not create or grant any property right. Nor does it modify, alter, or waive any Easement right the City benefits from through its statutory Easement or Easement by written grant. Instead, this Encroachment Agreement is personal to the Owner and is completely revocable by the City. 8) This fence Encroachment as it exists and as described in this Agreement will be allowed to continue crossing the City's Easements at locations identified in Exhibit A. The legal description of the Encroachments across the City's statutory vacated rights -of -way Easements are identified in the legal descriptions attached Exhibit B. The locations where the fence encroaches upon the Easements by written grant are shown in the map attached as Exhibit A. 9) The Encroachment must always comply with all applicable local, state, and federal codes and rules, including but not limited to those laws and regulations regarding related subjects including setbacks, fencing, zoning, property maintenance, permitting, and public nuisance. 10) The Owner is solely responsible for securing, maintaining, repairing, replacing or removing the Encroachment. The Owner is liable and responsible for any and all personal or property damage to the extent caused by the Encroachment. 11) The City's permission and approval of this Encroachment is not meant to state or imply anything other than the fence can remain in its present location subject to the terms of this Agreement. 12) The City's Easements, the facilities therein, and the overall use are subject to maintenance, repair, and replacement. To that end, a) The City shall always be granted timely access to its Easements, and Owner shall at all times provide the City with the name and immediate contact information of at least one decision maker having the authority to assist the City with any access questions or issues. Additionally, in the event Owner installs locks on any gate within the Encroachment, the City shall at all times be provided one or more keys that allow entry through gates capable of allowing City personnel and City equipment and vehicles the ability to access its easement. The City will take all reasonable measures to ensure the key(s) are kept in a secure location. b) The Owner is solely responsible for removing the Encroachment or, when applicable, protecting the Encroachment in place when the fence will be affected by any City use of, or lawful actions within, the Easements. The City is not be responsible for any costs or damages related to the disruption, removal, reinstallation, or protective measures of the Encroachment. c) The City will make reasonable efforts to timely notify the Owner of the City's planned use of or actions on, the Easement in areas affected by the Encroachment. d) The Owner must remove or otherwise take actions to protect the Encroachment within the timeframe for the anticipated City activities. February 15, 2024 e) If the Owner does not remove or otherwise take actions to protect the Encroachment when notified of anticipated City activities within the Easements, the City may elect at its sole discretion to take actions itself to remove or protect the Encroachment from the anticipated City activities. If the City takes these actions to remove or protect the Owner's Encroachment, the City will do so without liability for damages except for those considered willful and malicious. Furthermore, the City's actions will be at the Owner's expense. f) The City shall not be responsible for any damage to the Encroachment, or any structure or hardware attached to the Encroachment, resulting from the City's lawful use of its Easements. This includes the damage to the fence technically not within the City's Easements but may be damaged because it is connected to, or part of, the fence within the City's Easements. g) The Owner shall be responsible for repairing, reinstalling, reconstructing, or other actions required for the Encroachment after removal or protective measures are taken related to, or the result of, the City's lawful use of its Easements. 13) Due to the personal and revocable nature of the City's Encroachment permission and the lack of any property rights granted by this Agreement, 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. 14) The City is allowed to revoke its permission for the Encroachment at its sole discretion for any lawful reason, including the following: a) The use and/or proper function of the City's Easements prohibit 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 City's Easements 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 the City's Easements; d) The Encroachment is altered, 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 drainage easement; 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. 15) In the event that the Owner fails or refuses to remove the Encroachment because it has been revoked, expired, or terminated, or has otherwise fallen into poor condition or disrepair, the City may, but is not required to, remove the Encroachment at Owner's expense. February 15, 2024 4 16) 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. 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. 17) At all times that the Encroachment is located in any City 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 Encroachment. The Owner shall annually provide the City with proof of insurance for the Encroachment. 18) The Owner shall be liable and responsible for the actions of the Owner's contractors, agents, or representatives related to the Encroachment. 19) This Agreement is solely for the benefit of the City and the Owner, and this Agreement is not intended to benefit any third party. 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) Although the Encroachment permission is personal and is not a property right or reflect an interest in property, this Agreement may be recorded for the purpose of providing notice and clarity of the fact that the interests involved are personal, revocable, and expire upon conveyance, and also that property rights are not granted herein. SIGNATURE PAGE FOLLOWS February 15, 2024 5 PROPERTY OWNER: 424 Oregon Street, LLC I am signing this document based upon the contents of a Statement of Authority filed with the State of Wisconsin Department of Financial Institutions pursuant to Wis. Stat. 183.0302, which authorizes my signature to bind this Limited Liability Company without restrictions applicable to this document. Alternatively, this Limited Liability Company has not filed a Statement of Authority, but I explicitly assert that I do have the authority to bind the Limited Liability Company to the terms of this document without limitation r stric ' By - Will Flett, Chief Financial Officer 0,OTA1? k PUBLIC STATE OF WISCONSIN ) s ` •.. 5�= WINNEBAGO COUNTY ) ��///OFIW;SG,\\��` Personally came before me this leay of 2024, the above -named Will Flett, to me known to be the person who executed the foregoing document and acknowledged the same. • ��GiGc.OJL Notary Public, State of My Commission expires: 5 CITY OF OSHKOSH By: ,/�Gs--s�,( G�il�Lt' And: , MakA. Rohloff, City Manager Diane M. Bartlett, City Clerk STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY ) Personally came before me this CD day of :21, 2024, the above -named Mark A. Rohloff, City Manager, and Diane M. Bartlett, 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, by its authority. J&ww Notary P blic, State of Wisconsini a �� _ My Commission expires: February 15, 2024 6 N N M d d Z A PARCEL OF LAND LOCATED "PARTLY" IN THE NE i OF THE SE a AND PARTLY IN THE SW a OF THE SE a AND PARTLY IN THE SE a OF THE SE a OF SECTION 23,T16N, R16E WINNEBAGO COUNTY, STATE OF WISCONSIN FoX� VACATE RIGHT-OF-WAY i II PREVIOUSLY RELEASED I II - -- LOT 1 OF x (J! � OUTLOT 1 CSM 5748 — I CSM 5748 10' W1DE RIGHT-0E-WAY / ENCROACHMENT _w. 4TH AVE W 4TH AVE. '' (VACATED) 10'-- MY INGRESS/ EGRESS EASEMENT I I FOR OUT LOT 1 PER CSM 5748 .. ELECTRICAL EASMENT I 1 W DOC. # 1794978 IPRIVATE CHAIN LINK FENCE -h 3 �\ Q + / STORM WATER DRAINAGE EASEMENT OOC, 91794977 I I I I I( ! 1 I I I 1 I I I W 5TH AVE. 10'W7DERIGHT-OF-WAY -^ _ 1�1 41 '►� ENCROACHMENT _ T _ - --- =- - -- - ( 1 I II I I I 1I I I I I l a 1 I I 1 I 1 1 O CITY OF OSHKOSH ENGWEERING DIVLSION Exxrsiz, t1 A „ FENCE ENCROACHMENT AGREEMENT 250 W 6th AVENUE GRAPHIC 0 10 40 SCALE: ON FEET) 1INCH-40F Zr EXHIBIT A (1 of 1) FENCE ENCROACHMENT LOCATIONS Fence encroachments on Lot 1 of CERTIFIED SURVEY MAP NO. 5748; being apart of the SE 1/4 of Section 23 To hi 18 Now, Range 16 East, Ninth War City of Oshkosh, Winnebago County Wisconsin, bounded and described as follows: West Fourth Avenue Fence Encroachment, commencing at the Northwestern corner of said Lot 1 and a Southwest comer of the vacated M t-Of-Way of West Fourth Avenue- thence North 091'26" West along the West line of said Lot 1, 60 feet to the Northwest comer of the vacated Right -'Of -Way of West Fourth Avenue, Thence west along the north line of the vacatedgright-of-way of West Fourth Avenue 10 feet to a point thence south along a line perpendicular to the north Vacated Right - of -Way line of W Fourtl'i Avenue 6Q feet to a point on the south line of the vacated Right -of -Way if Vest Fourth Street thence west alongthe south Vacated right -of - Way Line of"W e Avenue 10 feet,;ack to the point oTbeginning. Iowa Street Vacated Right -of -Way Fence Encroachment, commencing at a Southwestem comer of said Lot 1 and the Southeast comer of the vacated Right -Of -Way of Iowa Street; thence South 89°49'57" West along the South line said Lot 1, 60 feet to the Southwest corner of the vacated Right-Of-Wayof Iowa Street, thence north along the West line of Vacated Iowa Street Right -of - Way 10 feet to a point thence east along a line perpendicular to the west 'line of vacated Iowa Street Right -of -Way 60 feet to a point on the east line of Vacated Iowa Street Right -of --Way thence south along the east line of the Vacated Iowa St right -of -Way back to the point of beginning. EXHIBIT B (1 of 1)