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Home My WebLink About2024-09-09 Encroachment - 2467 Hickory - recorded1 1, Document Number Encroachment Agreement CITY OF OSHKOSH AND PROPERTY OWNER This document drafted by: - David J. Praska, Deputy City Attorney City of Oshkosh, Wisconsin DOC# 1929815 NATALIE STROHMEYER • OF DEEDS WINNEBAGO COUNTY, WI RECORDED ON: 09/09/2024 02:26 PM RECORDING FEE: 30.00 PAGES: 9 Recordine Area Name and Return Address City Afforney's Office PO Box 1130 Oshkosh, W1 54903-1130 91526192300 Parcel Identification Number July 26, 2024 1 ENCROACHMENT AGREEMENT This Agreement is between the City of Oshkosh (City), and Bryan Davis and' Dawn Davis (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.. A. The Owner is, the fee owner of Parcel Number 91526192300, a residential property commonly known as 2467 Hickory Lane, Oshkosh (Property). B. The Property is subject to a Utility Easement benefitting the City along its east property line which was created by and is identified on the Plat for the. Eleventh Addition to North Point Plat, recorded with the Winnebago County Register of Deeds on August 12, 1999, as Document Number 1069114.. The subdivision plat is attached, as Exhibit A. C. The Property is described as follows: Lot Three Hundred Ten (310) in ELEVENTH ADDITION TO NORTH POINT PLAT, in the Fifteenth Ward, City of Oshkosh, Winnebago County, Wisconsin D. The Owner requests that the City permit them to encroach upon the City's Easement with part of Owner's residential driveway. A map of the Encroachment area and the improvements is attached hereto as Exhibit B. E. The City grants permission to the Owner to Encroach into the City's Utility Easement provided: 1) the Encroachment constructed is materially the same as the Encroachment requested; 2) it is clear that this Encroachment does not grant any property rights, or limit the City's easement rights; 3) it is clear that the City's Easement rights continue to supersede the Owner's Encroachment rights; and 4) this Encroachment is subject to the terms and conditions identified or referenced in this Agreement as well as easement law for terms not explicitly addressed in this Agreement. F. The City's permission for the Encroachment is contingent upon the initial, and continuing, compliance with all applicable local, state and federal statutes, codes, ordinances, and rules. G. The Owner agrees that it is solely responsible for the installation and maintenance of all encroachments. The Owner further agrees that it is solely responsible for any and all personal and property damage caused by the existence of the Encroachment. H. Snow, ice, debris, or any materials shall not be moved on to or allowed to remain in the Encroachment area or moved on to any part of the City's easement. I. 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, warranties, or acquires any responsibility for the short and/or long-term stability and safety of the Encroachment. The Encroachment is and always remains the sole responsibility and liability of the Owner. J. The Owner acknowledges that the City's utilities are subject to ongoing operation, maintenance, repair, and replacement, as allowed by the easement. To that end: July 26, 2024 2 1) The Owner is solely responsible for removing or otherwise protecting the Encroachment if it will be affected by any public maintenance, repair, or replacement projects or activities within the 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 making sure the -Encroachment does not adversely affect the City's use of the Easement. 3) In the event that maintenance, repair, replacement, or installation of public facilities in the Easement is planned, 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 to otherwise take actions to protect the Encroachment (as opposed to the City protecting or removing the Encroachment), then such actions must be taken in a manner approved by the City and 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, or landscaping within the City's easement, related to any public maintenance, repair, or replacement project in the Easement. 6) The City has no obligation to remove, but shall be allowed to remove, at its sole discretion, all or part of the Encroachment in the event that a public project involving installation, maintenance, repairs, and/or replacement of public facilities within the. Easement requires such removal. 7) The Owner shall be responsible for reinstalling/replacing/repairing the Encroachment regardless of which parry removed the Encroachment. The City shall be reimbursed by the Owner for all costs and expenses related to removing or protecting the Encroachment, or for removing vehicles or obstructions within the easement. K. Due to the nature of 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. L. Both parries acknowledge that at some point in the future, the City's lawful use of the Easement may conflict with the Owner's use of the Encroachments. Such conflicts will need to be resolved in favor of the City's 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 continued functioning of the Owner's use of its property. Nevertheless, the City's legal obligations to state and federal law, as well as its obligations to its taxpayers, may require certain changes, to the Owner's allowed use of the surface. 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: July 26, 2024 3 1) The City's use of the Utility Easement prohibits the continued location of the Encroachments; 2) The City determines that an Encroachment adversely affects the functioning of the public utilities in the Easement; 3) Additional encroachments are added, or the existing Encroachment is expanded, without permission from the City; 4) Local, state or federal rules, laws, or guidelines relating to any public facility located in the Easement, or any other local, state or federal law prohibit the continued location of the encroachment; 5) The Owner fails to properly maintain, repair, or replace the Encroachment; The Owner fails to provide the City with annual written proof that the Encroachments are covered by the required insurance; or, 6) Any other lawful reason or circumstance, including without limitation a breach of a term of this Agreement. M. In the event that the Owner falls or refuses to make changes, or remove its Encroachment upon termination or as described in this Agreement, the City may remove and dispose of Encroachment at the Owner's expense. N. 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, including the removal and/or reconfiguration of 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. O. Both parties understand and agree that accidents and incidents related to the City's Easement, or the City's facilities located in the --- 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; and adjudged by a court of competent jurisdiction in a finaljudgment or award (after appeals) as responsible to pay, for any dispute or action to or to the extent cause by the Encroachment. This indemnification is broad, and includes 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. P. At all times the Owner's 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, July 26, 2024 4 and damages related to the Encroachment. The Owner shall annually provide the City with proof of insurance for the Encroachment. Q. The Owner's responsibilities and liabilities pursuant to this Agreement extend to other persons, contractors, and agents performing work on Owner's behalf related to the Encroachment. R. This Agreement is solely for the benefit of the two parties to this Agreement, and it is not intended to benefit any third parry. S. The decision to enforce or not enforce, 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 in the future. l T. This .Agreement shall incorporate and adopt 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. U. This Encroachment Agreement shall inure to the benefit of, and be binding upon, these two parties. To the extent that the Owner rents or leases the Property, the Owner shall remain responsible for its obligations described in this Agreement even though the actions are taken by tenants or are related to any tenancy. V. This Agreement may be recorded with the Winnebago County land records solely to ensure notification that no property interests have been transferred. This Agreement shall expire upon the Owner's conveyance of any interest in the Property. Any future owner shall be required to obtain their own Encroachment Agreement. Any change in ownership of the Property shall require a new Agreement with the new owner(s). The City's future agreements with future owners of the property shall not be unreasonably, denied, provided the Encroachment remains substantially the same as described in this Agreement, and other conflicts described or inferred in this Agreement are not present. The City shall be entitled to enter the Property upon the expiration of revocation of this Agreement and remove the Encroachment at the expense of the Owner or other person the City deems responsible for the continued existence of the Encroachment. [SIGNATURE PAGE FOLLOWS] July 26, 2024 Dated: ----------- --� � ----------------------- Bryan Davis STATE OF WISCONSIN ) =ss. WINNEBAGO COUNTY ) Personally came before me this 2 +" day of `1U & 2024, the above -named - `Bryan Davis and Dawn Davis, to me known to be the persons who executed the foregoing document' andacknowledged the same. = Notary Public, State of Wisconsin = My Commission expires: on?, 4 1 2& LI CITY OF OSHKOSH By • Mark A. Rohloff, City Manager Diane M. artlett STATE OF WISCONSIN ) ss. WINNEBAGO COUNTY ) Personally came before me this J 1-11 day of afftILK2024, the above -named Mark A. Rohloff, City Manager, and Diwe 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. PAW4CA9 0j 01fm-k.' 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