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HomeMy WebLinkAbout2025-05-12 Encroachment - 27 Allen AveDatument Number Enerwohment Agreement CITY OF OSHKOSH AND PROPERTY OWNER This,documont drafted by: David J. Praska, Deputy City Attorney City of Oshkosh, Wisconsin lijww 2,9, 2025 DOC# 1944451 SUSAN SNYDER REGISTER OF DEEDS WINNEBAGO COUNTY, WI RECORDED ON: 05/12/2025 11:19 AM RECORDING FEE: 30.00 PAGES: 10 and Rdlint Address City Attorney's Office PO Box 1130 Oshkosh, Wl 54903-1130 91516570000 Parcel Idenfirecrillon Number This Agreement is between the -City of Oshkosh (City), and Gary P. MQnd_ay and Linda 1, Monday (collectively, Owner), The parties eater into this Agreement for° $1,00 and other good nand valuable consideration as described in this Agreement, the sufficiency and receipt of which is acknowledged, I. The Owner is the fee owner of Property identified as Parcel Number 91516-570000 and commonly known as 27 Allen Avenue, whic11 is more particularly described as follows: Lot 2 of Certified Survey Map No, 6535, recorded with the Winnebago County Register of Deeds our April 29, 2011, as Document No. 15706-78, located in the Fifteemmtlr yard, City of Oshkosh, l�iru_.xebag4 County, wigcomasimm, 2, CSIvI l`Io, 653 ��+as cr@aced with a?� ft, drair�ae easet��errt alor the rarlaroperty bourrdaa of the Property and the adjoining properties, The drainage casement contains storm Nvater draainage facilities that benefit the Property's drainage as well as bonefaing neighboring properties, CSM No, 6535 is attached as Exhibit A, 3, The Owner proposes installing a V' privacy fence along thek rear property boundary within tyre drainage easement, `1'lae fencing would be installed ire a malarrrrer° srabstuxttlally confor�r�irag to the location and description as identified in Exhibit B, wliich is attached to this Agreement, 4, No structure or object is allowed to encroach into and obstruct tlae City's use of the drainage easement without the City's penuission. The- proposed fence therefore requires City permission before installation, 51 The. City has reviewed the Owner's request to allow the construction of a privacy fence encroaching into the drainage easement. The City will allow the placenienit of tI_ie face subject to Clip terms of this Fncroaachnient Agreement, A material component of this Agreement is the explicit understanding that the .City's permission allowing all Encroach lent does not create or give any property right; This Encroachuuent is personal to the Owner and is completely revocable by the City. G, `Elie krrcroaclrraacnt as eomastructed maaust be rnatcrially siraailar to the desgui end specificatioars submitted for the City's approval, which is attached as Exhibit Be 7. The City's permission for this Encroachment is contingent upon the initial, and Continuing compliance with all applicable local, state, and federal codes and mules. `l'he Encroachment shall comply with City Ordinances, and Mate and federal laws acid regulation regarding related subjects including setbacks, fencing, zoning, propertytniaintenance, permitting, and public nuisances 8, The Owner agrees to be solely responsible for the installation and maintenance of the Encroachment, and is solely responsible for away and all personal or property dan'rage caused by the Encroachment, 2 Alidl 28, 20Z 90 Tire Owner is solely responsible for scarring, maintaining, repairing, and replacing the .Encroachment, Tile Owner is responsible for identit inn accurate property boundaries, The City's permission and approval of this Encroachinent is .not meant to state or imply that the City guaranties or `rnarranties the short- and long-term stability and safety of the Encroachment. Tile Owner always retains the responsibility and liability for .the l3ncroachmenty - 10. The Owner acknowledges and agrees that the drainage easement is subject to innintenancc, repair, grading, and replacemetiL To that end, a: The Owner is solely responsible :for removing, or -protecting if tiie circumstances warrant, the Encroachment if it «vil.l be ct%oted by .arty public or non=public maintenance, repair, or replacement projects or activities within the drainage easement. The City will not be responsible for any casts related to the disruption or removal of the Encroachment, ba The Owner is solely responsible for protecting the drainage easement from adverse effects related to the existence of the Emeroachnment: e: In the event that the, City is involved with the maintenance, repair°, or replacement of the drainage easement that is planned treat= the Encroachment, the City agrees to .make reasonable efforts to noti� the Owner of these projects or activities in advance d. If the Owner elect's to remove or otherwise takeactions to protect the Encroachment, such actions must be taken in a manner approved by thIc City or any other party with authority to undertake such work, and undertaken within the tinieframe 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 Eneroachnrent, f, The City or other party undertaking the work within the 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, repairs, and/or replacement regpires such rcmovalo go The Owner shall be responsible for .reinstalling 1 reconstructing the Encroachment. regardless of who removed the Encroachment, h� In tine ovent the, City or other party 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, andalter the Owners' Property at the location of or n4joining the Encroachrment area for the sale purpose, of removing or protecting the Encroachment and only to the extent reasonably necessary to achieve those objective,& 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 drainage easement, the Owner is not eligible for, and specifically disavows, any .right to receive compensation of any kind .for the Apell28, 2025 removal, alteration, or limited accessibility, in whole or in part, whether temporary OV Permanent, Of the Encroacbment, lie The, City is ut[owcci to revoke its perraaissiora for the I racroachilient at its sole discretion for any of the following reasons; a, The use and/or proper function of the drainage casement prohibits the corrtiaatacd existence and locatioaa of the: Iaracroaclararerlt,with a pa►_-t' ular prohibition described in statutes, court cases, rules, regulations, or best practices; b. The continued existence of the Encroachment- -would Iimit the intended use of the c_{rai�aa e eascnacaat � �itli such dcternunation to tee made solely at tlae discretion of the City; Q. The City determines that the racrQaclar cent a4lversely alTects the functioning of the drainage casement; (I, The M.wroachnient is 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; fe Tile Owner Rails to properly aaaaintaain, repair, or replace the Eacroaclunent; g, The Owner fails to provide the City with annual written proof that the Uncroachnaent is covered by the required insurance. 13; In the event that the Oavner fails or refuses to remove the I ncroachnient that has either been revoked, or has otherwise fallen into poor condition or disrepair, the City may, but is not required to, enter Owners property to renaovQ atad dispose of the I�ncrnaclaaaaeaat eat Q�vner's expense. 14, The Owner releases the City of Oshkosh, its emplQyces, agents, elected ofl:iciaals, ;and authorized volunteers from all debt, claims, demands, damages, actions and causes ofaaction whatsoever which M'ay result from. the Encroaachnaent, The Owner shalt protect artd hold (-he- City of Uslakosla harrailm. against all aetioras, chinas and dera�arads of"arry k rtcl or chaai titer whatsoever which are related to the Encroachment, 15, Both parties understand and agree that aaecidents and incidents related to the storm water drainage raaay result in. lawsuits or threats oI'lawsuits against the City, The- the Owner agrees to aracieraaaaify 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 to the extent caused by the Encroachment, 16. The Owner's responsibilities pursuant to this Agreement extend to otlaea persons, contractors, and agents per°fornain work Qra Owner's behalfand related to the Encroaolmicat, as well as successors and assigns, and those with any interest to the property. `fhe Owner shall be responsible for the actions of the Owner's contractors, agents, or representatives, 4 AI)r It 28, 20e5 M This Agreement is solely for the benefit of the City and the Owner, and this Agreement is _riot intended to benefit any third party. I . l S. The election to enforce or not enforce any provision of this Agreement, as well as the timing of enforcement, steal) be at the City's sole discretion and shall not not as a walver of any rights to exercise any right relating to the .Encroachment. 19. This Agreement ;;ball itrco�porate 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 themy. The City does not waive. such immunities and limitations and shall be able to rely on them through this Agreement, X The Encroachment shall not constitute a ;property right and the City's -permission therefore shall not roan - pith 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, 2 L All parties signing below state that they have the authority to crater into this Agreement without .limitation or restriction. 22, The City's parmission is personal to the Owner, and cannot be transferred or assigned to any other person or entity, vNihctlxr. voluntarlly or involuntarily. Permission for the -Encroa hment is revoked immediately and %vithout notice as of the time that any persona or entity other° than tine Owner ,identi led are dais dccra�aaent becor3res a fee o���ner, a�phether in whole or in,pait, of the Pruporty, any delay in the City's enforcement of this Agreement shall .not adversely affect Its right to pursue compliance with the OWInero The Laity's permission is also i aYediatefy revoked where the Property is transforred to an entity of which the Owner as defined above is the sole or partial Owner of the entity, SIGNATURE PAGE FOLLOWS April 2025 12-7 ALLEN. AVENUE Jary P, .. raday, Ovvn a° STATE OF WISCONSIN WINNEBAGO COUNTY, � Linda .f, Mmigya Owner Personally taally catttg bei ge rate this — to day of , 20-25, the above-aaaaaaed Gary P., i�lottday to me known to be the persona lvlao oxcctated the the same,. in Nottary 'Wio, St w ofwisc - sQt1 lyly Cotaanaission 9;�plt°cs; � � � _ -- I'arsonally etataae before Etta this _� day of to taco kttol n to be the porson who exemated the Nregoin dob aient atad aaekttowlcdged the same, Notary I ab ic, St-aw of Wiseo�. tasisr;- My Coninaission OYpires. CIT lit OSHKOS ' Fay � tidz—caR-ebecoa Ne Guilt, City Manager Diane A!Well-, City Clerk - STATE OF WISCONSIN � ssa WINNEBAGO COUNTY ) Personally came before, sane this —7 day of MCe,� 2025, the sabove=aat med Rebecca N, I. Grill, City Malaager, and Diane M. Bartlett, City Clerk, of (he City f4slakosh, a municipol corporation, to ane known to be the pca°soaas who exccatted the foregoing instrument, rand to me known to be well officcrs 0 said corporsation, and acknowlcdged that they emccuted the fore -going instratnaeaat as such officers tas ttae dccd- _ of said by its authority, - Notary l4iblio, State of Wiscottshl. My Commission expires, �31 j . Aprit 28, 202 �y M vff MAP m EL M �+iSq�9li�9liippsm�it�iYai�,la�. BIIRDE-?' � IB�If�,�tlli t�b'�Dli�tlNi�F1t lot45e 11 u����'81Io t�sli6,i� bf p €�iIDCStv'd1Jfi���9, go WAU-%IIN014 60F M-- � mull�OONSILING smelt He SX.HIBIT A (1 6f 3) ._ t Page 2ofS ' CE�T1PIEg Syl3�►1^li.�LA.P f1Q„ [D�, BEING A RErDIVIMN OF LOTS 12,14,14 AND THE VVE6T 30 F19917 OF LOT 15, RLO -K 61 FIRST AMATION TO PLAT QF ` ME INTER -URBAN LAND -COMPANY IN THE FIFTEENTH WA90,-CITY OF OSHKOSH, WINNEeAGO COUNTY, M ONs1N, SURVg)LOR►S CERTIFICATE STATE OF WISOONOIN) .63 WINNE6A99 CQUNTY) a 1, WILLIAM D, F'RLf1 l'I, Wisconsin Neglstered Lead surveyor do hereby cerfify_y; That 1 nave surveyed, divided and mopped a parcelbeing a re-divislon of Lots 12,13,14 and the West 30 feet of Lot 15, 0"- 0, First Additionto Piat of the In1er-Urban Land- Company In the Fifteenth Ward, City of Oshkosh, Winnebago County, Wisconsin, W111 a is bounded and descnhesl as follows,, PEOINNINO at the Nortiaeaat comero# Lo111, Block 5, first MIUon fV Plat of The IntereUrlsan Land Company; thence N 09903"59" E, along the south Line of Aiten Avenue-, a distance of 100,00', too aarnt 20,00' West of fire fVortheagt corner of Lot 15I tlagnce S 01'19'VI E,150,00, -0 a point 20,00' West of the Sgutheast corner of said Lot 15; thenco S 09'03'59" W, 010n9 the south Braes of said Lpfs 10, and 12,1e0,001, to the Southyvost oorrrer of said Lot 12; thence N 01�10'31" w along the 3N�ast I Ire Qf sad f of 12,1§O,00', to the POINT � F IMEGINNING; gold described trgct oontaining 27,000 6quare Feet, (0,e,190 Acres), mom or fees, ° $All) PARCEL IS 6MEOT TO ALL EXtSTINO EMEMENTs AND Re- STR10TION6 OF RECORD, .THAT I have mado this survey by the difecillon of Kane G, Halike, omer of Nafionol Asset Management vroup, Inc,, owner of sold land and that suoh map Is a o900 represeratatloa of all the exterior boundaries of the Land surveyed and the fond divis.on thereof made, Thlg CSM Is contained wholly Wthin the property tfescribed in the foilo-VAng Paroel �lunrto- N 91510500100, The Oowment Number of the propody Is: 155743-0. THAT I have fully compiled with the provisions of Chapter 23t3 of the Wisconsin S�tatufes and the Land subdlvisfon OrOnance- of !he CO. of Oshk46tr, Date it rl4m D. Fweh, Regr$WW Land Surveyor 6.19z6 p 14 PRUGH � m 06HKQOrt r._ UVIS,;..� EXHIBIT A (2- of 3) Fags a of 3 CERTIFiao suRvEyMAP Noi-h- BEING A RE -DIVISION OF LOTS 12,12,14 AND THE WEST 30 111=15r OF LOT 16, BLOCK 5, FIRST ADDITION TO FLAT OF TIME INTER -URBAN LAND COMPANY IN THE Fip-TR NTH WARD, CITY OF, OSHKOSH, WINNEBAGO COUNTY, WISCONSIN. CmERo&_CaaRTIFICATE AS OWNER OF NATIONAL ASSET MANAGEMENT GROUP, INC., Kyle O, Hooke does Hereby certiy that he caused a parcel being a r"ilvlsfon of Lots 12,13,14 and the West 80 feet of Lot 16, Block 5, First Addition to Plot of the Inter-Utlion Land Company in the Fifteenth Word, City of Oshkosh, Winnebago County, Wiseonsln, (thb land described on this map) to besurveyed, divided and napped as represented on this map to accordanee with the City of Oshkosh Subdivialon ' Ordinance, WITN588 the hand and seal of said owner this day of - — 20ft yI6 C: Wauk STATE OF WISCONSIN) 3 SS WINNBBAGO COUNM Personally come before me thlse- -'day of � `- — _ 2011, the aforormeniloned Kyle C. Heuke, the owner of National Asset Managetn-t,0idup; Ino to fne known to be the person who ex®cutarl the foregoing Irisfitnient, and acknot + M My %AOTARp _biri3tt8 This Certified Survey Map old parcel being a r"WO of Lots 1i . P and the West 30 feet of Lot Is, Block 51 First Addition to Plat of the Inter -Urban Land Company In the Fifteenth Ward, City of Oshkosh, Winnebago County, Wisconsin, is hereby approved. f)afe: -Al Authorized Representative ---- I hereby ceffiiy that In accortlaiiee with the records In niy office, there are no unpaid foxes of unpaid spools! assessments as of this date on any of the land Included in this CeMed Survey Map boing r"IvIslon of Lots 12,13,14 and the West 30 feet of Lot 16, Block h, First Addition to Plat of the Enter -Urban Land Company In the Fifteenth Wafd, City of Oshkosh, Winnebago County, Wisconsin, Dated_ , a ), Oshkosh City Tvedouv#Y - - Dato'Winnobage County Treas ire- TWiS 60 --UM-- NTtatfAS ORAFTt_D M. William D, Fnreh, Wisconsin Registefed Land Surveyor, 9.102 19 15XHIBIT A (3 of 3) li 40 6 10 f )0 fi. J; 0 n x, v*"it-,v--"f.--,-.-1� - -7 CD .... .. . Vf- . 77— V:f, a, A, N; 1"X, ul 0 0.f A v Ov. 50,g'019 1!11r : I 27 Allon Avenue N 91q-0ml ain52o4 4 for Rs m Ow ROY-may Ow.-Y N OWO)dmats Myo afon of p(,opefr, kow?&O And Ow wivi-q tom 0 V*ty 0 sl;fufcq WR Mop(sydala";s era PW;d9d. (Of lAfX PfIntlog pat© VON Mebon Fyfp% -y - I es on?j end N rM bo AMLOI of em*-ab for (00A ej*qaft. or why'k pepa$, I 7119Y Pre prOlid IMF %%% - iam 0 -h s-h g Wafto*4 of mykw aafft CIVOf 03 A kos mashow )e WfAIAly Ouse olmisusq. 1), W1, —fi ; proared by, city of Osh F ,XHIBIT E-3 (I of 1) M,