HomeMy WebLinkAbout2024-11-18 Encroachment -1062 Bismarck Ave - FenceDocument Number
Encroachment Agreement
CITY OF OSHKOSH
M1001
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
DOC# •
NATALIE STROHMEYER
• OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON: -
11/18/2024 02:22.PM
RECORDING FEE: 30.00
PAGES: 13
Sing Area
�
and Return Address
City Attorney's Office
PO Box 1130
Oshkosh, WI 54903-11
90608700300
Parcel Identification Number
November 05, 2024
ENCROACHMENTAGREEMENT
This Agreement is between the City of Oshkosh (City), and Michael L. Lillie and Anne C. Lillie
(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 90608700300 and
commonly known as 1062 Bismarck Avenue, which is more particularly described as
follows:
Lot Four (4), according to the recorded Plat of FOSTER HEIGHTS, in the
Sixth Ward, in the City of Oshkosh, Winnebago County, Wisconsin.
�11
Part of Lot Three (3) according to the recorded Plat of FOSTER HEIGHTS,
in the Sixth Ward, in the City of Oshkosh, Winnebago County, Wisconsin,
being described as follows:
Beginning at the Southwest corner of said Lot 3; thence North 80°12'03"
East 65.46 feet, along the South line of said Lot 3; thence North 00°12'50"
East 68.97 feet; thence North 89°47' 10" West 64.99 feet, along the North
line of said Lot 3; thence South 00°09'48" East 80.35 feet, along the West
line of said Lot 3, to the point of beginning.
2. The Property was created when the Foster Heights subdivision was recorded with the
Winnebago County Register of Deeds on October 17, 2003, as DocumentNumber 1283398.
The subdivision plat granted a utility easement and a drainage easement at the rear of the
Property for the benefit of the City of Oshkosh. The subdivision Plat noting the Property and
the City's easements is attached as Exhibit A.
3. The Owner proposes installing a four (4) foot chain link fence within and across the utility
and drainage easements. The fencing would 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 or obstruct the utility and drainage
easements without the City's permission. The use of the Property within the utility and
drainage easements must be monitored and regulated to make sure the City's utilities and
storm water drainage are not adversely affected by Encroachments. The proposed fence
therefore requires City permission before installation.
5. The City has reviewed the Owner's request to allow the construction of a chain link fence
encroaching into the drainage easement. The City will allow the placement of the fence
subject to the terms of this Encroachment Agreement. A material component of this
Agreement is the explicit understanding that the City's permission allowing an
Encroachment does not create or give any property right. This Encroachment is personal to
the Owner and is completely revocable by the City at its discretion without compensation.
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November OS, 2024
6. This Encroachment consisting of a four (4) foot chain link fence will be allowed to project
into the utility easement and the drainage easement, provided that the actual Encroachment
constructed is materially similar to the design and specifications submitted for the City's
approval, which is attached as Exhibit B.
7. 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 state and federal laws and regulation
regarding related subjects including storm water, setbacks, fencing, zoning, property
maintenance, permitting, public nuisance, and easement law.
8. The Owner agrees to be solely responsible for the installation and maintenance of the
Encroachment, solely responsible for ensuring the Encroachment does not interfere with the
City's easements, and solely responsible for any and all personal or property damage caused
by the Encroachment.
9. The Owner is solely responsible for securing, maintaining, repairing, and replacing the
Encroachment. The Owner is responsible for identifying accurate property boundaries. 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 long-term stability and safety of the
Encroachment. The Owner always retains the responsibility and liability for the
Encroachment.
10. The Owner acknowledges and agrees that the utility and drainage easements are subject to
maintenance, repair, grading, and replacement. To that end,
a. 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 utility and
drainage easements. The City will not be responsible for any costs related to the
disruption, removal, replacement, or reinstallation, of the Encroachment.
b. The Owner is solely responsible for protecting the utility and drainage easements
from adverse effects related to the existence of the Encroachment.
c. In the event that the City is involved with the maintenance, repair, or replacement of,
or within, the utility and/or drainage easements affecting the Encroachment, 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 Encroachment,
such actions must be taken in a manner approved by the City or any other parry with
authority to undertake such work, and undertaken within the timeframe for the
anticipated work.
e. The City shall not be responsible for any damage to the Encroachment, or any
structure or hardware attached to the Encroachment, or to which the Encroachment is
attached.
November 05, 2024
f. The City or other party undertaking the work within the utility and/or drainage
easements has no obligation to remove, but shall be allowed to remove, at its sole
discretion, the Encroachment in the event that a project requires such removal and
the Owner fails to do so.
g. The Owner shall be responsible for reinstalling, reconstructing, and repairing the
Encroachment regardless of who removed the Encroachment.
h. In the event the City or other parry with lawful authority is required to remove or
protect the Encroachment for purposes described in this Agreement, the Owner gives
the City permission to enter, access, and alter the Owners' Property. The City
always has the authority to access all parts of its easements, b 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.
11. Due to the revocable nature of the City's permission and the lack of any property rights
granted in terms of placing the fence within the storm water detention and drainage feature,
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.
12. The City is allowed to revoke its permission for the Encroachment at its sole discretion for
any of the following reasons:
a. The use and/or proper function of the utility easement and/or the drainage easement
prohibits the continued existence and location of the Encroachment. This analysis by
the City will include a review of statutes, court cases, rules, regulations, history of
conflicting uses, or best practices;
b. The continued existence of the Encroachment would limit the intended use and
functioning of the utility and drainage easements with such determination to be made
solely at the discretion of the City;
c. The Encroachment is increased, expanded, materially changed, and/or moved
without permission;
d. The Encroachment is prohibited by any local, state, or federal rules, laws, or
guidelines relating to any public facility located in the drainage easement;
e. The Owner fails to properly maintain, repair, or replace the Encroachment;
f. The Owner fails to provide the City with annual written proof that the Encroachment
is covered by the required insurance.
13. In the event that the Owner fails or refuses to remove the Encroachment that has either been
revoked, or has otherwise fallen into poor condition or disrepair, the City may, but is not
required to, enter Owner's Property for a limited time and a limited purpose of removing and
disposing of the Encroachment at Owner's expense.
4
November 05, 2024
14. 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.
15. Both parties understand and agree that accidents and incidents related to the utility easement
and the drainage 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.
16. At all times that the Encroachment is located in the City's utility and drainage easements, 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.
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 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.
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, claim, or defense relating to the Encroachment.
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, nor do contractual terms supersede statutory protections, and the City shall be
able to rely on them through this Agreement.
21. The Encroachment shall not grant or otherwise constitute or be considered a property or
other right, and the City's permission therefore shall not run with the land but instead is
between the City and the Owner. 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.
5
November OS, 2024
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
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 an entity of
which the Owner as defined above is the sole or partial Owner of the entity.
[SIGNATURE PAGE FOLLOWS]
6
November OS, 2024
PROPERTY OWNER:
awrL� 0
Anne C. Lillie, Owner
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this day of Mr 24, the above -named Michael L. Lillie
to me known to be the person who executed the fi5pegiTng docu nt and knowle d the same.
No Public, State of Wisconsin
My mmission expires: 15 E c� _
Personally came before me this day of a above -named Anne C. Lillie #o
me known to be the person who executed the for goin oc nt and ackn wledged the same.
CITY OF OSHKOSH
By:.---
MAk A. Rohloff, City Manager
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
State of Wisconsin
in expires: 15_5' �'
Diane M. Bartlett, City Clerk
h
Personally came before me this � day of 1Ve 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.
ckfojxj_k� ----
Notary Public, State of Wisconsin
My Commission expires:
7
November OS. 2024
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City of Oshkosh maps and data are Intended to be used for general Identification purposes only, and the Feet
City of Oshkosh assumes no liability for the accuracy of the information. Those using the information are
responsible for verifying accuracy.Fctulldtsclaimerpleasegotowww.cI.oshkosh.wi.us/GISds:Jaimer Printing Date: N/4/2024
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