HomeMy WebLinkAbout2024-08-12 Encroachment - 1062 Bismarck Ave - recordedDocument Number
Encroachment Agreement
CITY OF OSHKOSH
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This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
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I . . . . . . . . . . . . . . .
RECORDED ON:
08/12/2024 02:31 PM
RECORDING FEE: 30.00
PAGES: 8
Name and Return Address
City Aftorney's Office
PO Box 1130
Oshkosh, WI,§4903-11
90608700300
Parcel Identification Number
July 18. 2024 1- 1
M
ENCROACHMENT AGREEMENT
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.
A. The Owner is the fee owner of Parcel Number 90608700300, a residential property
commonly known as 1062 Bismarck Avenue, Oshkosh (Property).
B. The Property is subject to a Public Storm Sewer and Drainage Easement benefitting the City
along its east property line which was created by and is identified on the Plat for Foster
Heights, recorded with the Winnebago County Register of Deeds on October 17, 2003, as
Document Number 1283398. The subdivision plat is attached as Exhibit A.
C. The Property is 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.
M i7
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.
D. The Owner seeks permission from the City to allow it to encroach upon the City's Easement
as part of a service walk / patio construction. 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 Public Storm Sewer and
Drainage 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.
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.
July 18. 2024 2
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 Public Storm Sewer. and Drainage facilities are
subject to ongoing operation, maintenance, repair, and replacement, as allowed by the
easement. To that end:
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 apublic 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 party 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.
July 18, 2024
L. Both parties 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:
1) The City's use of the Pubic 'Storm Sewer and Drainage 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 fails or refuses to make changes or remove its Encroachment 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 Public Storm Sewer and 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, and
adjudged by a court of competent jurisdiction in a final judgment or award (after appeals) as
responsible to pay, for any dispute or action to or to the extent cause by the Encroachment.
Julv 1 & 2024 4
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,
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 party.
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.
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 1 & 2024
Dated:
ichael L. Li 'e Anne C. Lillie
STATE OF WISCONSIN
) ss.
WINNEBAGO COUNTY )
II ��
Personally came before me this 1 day of , 2024, the above -named
Michael L. Lillie and Anne C. Lillie; to me known to be the poeidons who executed the foregoing
document and acknowledged the same.
Cr
i
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY )
jNo Public, State of Wisconsin
Commission expires:zt
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do
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Personally came before me this 5 vh day of F-Ct� V�� 2024, the above -named
Mark A. Rohloff, City Manager, and Diane Bartlett, City Cler k, of the City of Oshkosh, a municipal.
corporation, to me known to be the persons who executed the foregoing instrument, and,toeo, ►� J�r�
known to be such officers of said corporation, and acknowledged that they executed the fgeglg';,,; !1�i
instrument as such officers as the deed of said corporation, by its authority.
Notary Yublic, State of Wisconsin
My Commission expires: ..�•<<;% .
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July 18. 2024 6
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