HomeMy WebLinkAboutEncroachment/Century Oaks/1211433009/1218770000 i
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Encroachment Agreement 1652263
And License Agreement
REGISTER'S OFFICE
WINNEBAGO COUNTY, WI
RECORDED ON
11/08/2013 09:19 AM
JULIE PAGEL
REGISTER OF DEEDS
C RECORDING FEE 30.00
1 7?„.,_ Recording Area Npe� t 3 Name and Return Address
V--
r , t City Attorney's Office
C11--{� �� j � Oshkosh,WI 54903-1130
CIS L—
91211433009
91218770000
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David 3. Praska, Assistant City Attorney
City of Oshkosh, Wisconsin
September 24, 2013 1 0 ' V
REVOCABLE ENCROACHMENT AND LICENSE AGREEMENTS
This agreement is between the City of Oshkosh ("City"), and Century Oaks Homes, LLC
("Owner"). The parties enter into this agreement for $1.00 and other good and valuable
consideration, the receipt of which is acknowledged.
The Owner is the fee owner of two (2) properties within the City of Oshkosh commonly
known as 1816 Vinland Street, Parcel Identification Number 9121143309, and 1010 - 1110 West
Murdock Avenue, Parcel Identification Number 91218770000 ("Properties").
The City owns and controls substantial public right-of-way within the City of Oshkosh,
generally,and specifically owns and controls a particular right-of-way known as Walnut Street. Part
of the Walnut Street right-of-way has been developed for public access and utility purposes,and part
of the Walnut Street right-of-way has yet to be developed in such a manner. The section of the
Walnut Street right-of-way that is the subject of this Agreement has not yet been developed but is
expected to be developed for public purposes in the future. Included in this anticipated public
development is the installation of underground public utilities.
While public right-of-way is not considered a separate or specific parcel of land, and
therefore cannot be identified with a parcel identification number,this currently undeveloped portion
of the Walnut Street right-of-way (ROW)can be generally described as follows:
That part of the Southwest 'A of the Southeast 'A of Section 11, T18N,
R16E, in the Twelfth Ward, City of Oshkosh, Winnebago County,
Wisconsin,described as follows: Commencing at the Southeast
corner of Lot 4 of Block 5 in plat of Eichstadt Subdivision; thence
East, across the Walnut Street right-of-way, along an extended South
line of said Block 5, 50 feet, to the Northwest corner of Lot 3 of
Block 6 in said Eichstadt Subdivision; thence South, along the East
boundary of Walnut Street and the West line of Lots 3, 4, 5, and 6 of said Block 6,
340 feet, to the Southwest corner of said Block 6; thence West across
the Walnut Street right-of-way and along an extended South line of said
Block 6, 50 feet,to a point on the extended East line of said Block 5;
thence North, across the West boundary of Walnut Street and along the extended
East line of said Block 5, 340 feet,to the place of beginning.
Owner's Properties adjoin the East and West ROW boundaries. The Owner has constructed
commercial developments on each of the Properties, with each having similar uses generally
described as residential care facilities. Included within the commercial development of these
properties is the installation of fences surrounding Owner's Properties. Due to the current vacant
nature of the City's ROW,the Owner proposes the following:
a. Erect fences encroaching into and across the ROW connecting its existing fencing
surrounding these developments; and,
b. A license to allow the use of the ROW for passive activities related to the
commercial use of Owner's Properties.
September 24, 2013 2
The Owner understands that no use of,or installation of any structure or object,including the
proposed fencing, is allowed over, under, or within the ROW or any right-of-way within the City
without the City's permission.
The Owner proposes to install fencing within the ROW at the following locations(Fencing
Area South and Fencing Area North):
South
Part of the Walnut Street Right-of-Way located in the Southwest 1/4 of
the Southeast 1/4 of Section 11, Township 18 North,Range 16 East, City
of Oshkosh, Wisconsin, bounded and described as follows:
Commencing from the South Quarter Corner of Section 11,Township 18
North,Range 16 East;thence South 89°52'21"East, 298.20 feet along the
south line of the Southeast 1/4 of said Section 11 to the extended west
right-of-way line of Walnut Street; thence North 00°20'58"West, 30.00
feet to the northwest corner of W. Murdock Avenue and Walnut Street
and the Point of Beginning; thence continuing North 00°20'58"West,
27.50 feet along the west right-of-way line of Walnut Street; thence South
89°52'21"East, 50.00 feet to a point on the east right-of-way line of
Walnut Street; thence South 00°20'58"East, 27.50 feet along the east
right-of-way line of Walnut Street; thence North 89°52'21"West, 50.00
feet to the Point of Beginning. Said area contains 1,374.95 square feet,
more or less.
and
North
Part of the Walnut Street Right-of-Way located in the Southwest '/ of the
Southeast 1/4 of Section 11,Township 18 North,Range 16 East, City of
Oshkosh, Wisconsin, bounded and described as follows: Commencing from
the South Quarter Corner of Section 11,Township 18 North, Range 16 East;
thence South 89°52'21"East, 298.20 feet along the south line of the
Southeast 1/4 of said Section 11 to the extended west right-of-way line of
Walnut Street;thence North 00°20'58" West, 288.50 feet along the west
right-of-way line of Walnut Street to the Point of Beginning; thence
continuing North 00°20'58" West, 35.00 feet along the west right-of-way
line of Walnut Street; thence South 89°52'21"East, 50.00 feet to a point
on the east right-of-way line of Walnut Street; thence South 00°20'58"East,
35.00 feet along the east right-of-way line of Walnut Street; thence North
89°52'21" West, 50.00 feet to the Point of Beginning. Said area contains
1,749.94 square feet, more or less.
The City has reviewed the Owner's request to encroach into the ROW as described in this
Agreement,and will allow the placement of the approved fences in both the Fencing Area South and
Fencing Area North, and agrees to a revocable license allowing the passive use of the ROW in
general,subject to the terms and conditions identified in this Agreement. Both parties agree that all
of the City's terms and conditions in this Agreement are to be considered material. Specific terms
and conditions of this Agreement between City and Owner follow.
September 24, 2013 3
1. The City grants a non-exclusive revocable license to Owner to use the ROW for passive
purposes. Examples of passive purposes include sitting, standing, gathering, or
traversing. Owner may place movable tables, temporary tents, or similar movable and
temporary items within the ROW. Owner may not construct or install landscaping except
grass,buildings, structures, sidewalks, concrete pads, or any permanent attachments to
the ROW.
2. Owner shall be responsible for maintaining the ROW subject to its license agreement as
well as repairing any damages or injuries related to Owner's License Agreement.
3. The City grants permission to the Owner to install fencing across the ROW in the
locations described as Fencing Area South and Fencing Area North. The locations of
these encroachment areas are further described on Exhibit A attached hereto.
4. The fencing installed in the Fencing Area South shall be a four (4) foot wrought iron
fence as approved by the City at its sole discretion. The fencing installed in the Fencing
Area North shall be a six (6) foot cedar board, dog eared, with one and one-half(1.5)
inch overlap as approved by the City at its sole discretion. An example of the types of
fencing that may be allowed within the ROW is attached for illustrative purposes as
Exhibit B.
5. Each fence installed in the ROW must include gates a minimum often(10)feet in width,
or fence sections that can be easily removed and that are a minimum of ten(10) feet in
length. The Owner is encouraged to design the fencing to allow the easy and inexpensive
removal of all fencing in the Fencing Area South and/or the Fencing Area North in the
event that the use of the ROW is necessary for public access or utility purposes,or if the
City otherwise revokes its permission allowing the Owner to encroach upon the ROW.
6. Owner understands that the City retains the completely unrestricted ability to use the
ROW for public purposes. The Owner also understands that state and federal laws also
allow other public utilities to utilize public rights-of-way for their allowed purposes.
Therefore,not only does the City retain the right to use the ROW,but other utilities retain
the statutory authority to use the ROW for their respective purposes. These other
allowed utility uses include gas, electric,telephone, and cable.
7. In the event that Owner utilizes gates to allow access to the ROW, then Owner must
make keys and/or lock combinations readily available to the City and public utilities to
allow unrestricted access. In the event that Owner utilizes removable fence sections to
allow access to the ROW, then Owner must make clear instruction for removal readily
available to the City and public utilities which will allow unrestricted access.
8. The City's requirement of ten(10)foot gates or removable fence section is based upon its
estimate of usual openings necessary to provide access and the performance of public
works. However,both the City and public utilities shall be allowed to have access to the
full width of the ROW as may be necessary for any particular project.
9. The City's permission for the location of these fences within the ROW is contingent
upon the initial,and continuing,compliance with all applicable local, state, and federal
codes and rules.
September 24, 2013 4
10. The Owner is solely responsible for the installation and maintenance of the allowed
fencing, and is solely responsible for any and all personal injuries and/or property
damage caused by or related to the allowed fencing. The Owner's responsibility includes
actions taken by its employees,agents,assigns,residents,visitors,tenants,the public,or
others using the Properties or ROW.
11. The City's permission and approval of the fencing within the ROW does not replace,
minimize,or affect the Owner's responsibilities related to the fencing within the ROW.
12. In the event that the installation, maintenance, repair, or replacement of any public
facilities or utilities within the ROW is necessary, the City agrees to make reasonable
efforts to notify the Owner of the activities for which the City is responsible so that the
Owner may remove or otherwise protect its fencing,or to ensure that the City or public
utility is able to access the ROW without restriction. If the Owner elects to remove or
otherwise protect its fencing, then such actions must be taken within the timeframe for
any anticipated work.However,the City is not responsible for any damage to the fencing.
The Owner is responsible for repairing, reinstalling, or reattaching the fence in those
circumstances where the City or public utility removes all or part of the fencing within
the ROW. The City shall be reimbursed by the Owner for all costs and expenses related
to removing or protecting the fencing. The Owner gives the City permission to enter,
access,and alter Owner's Property adjacent to the ROW for the sole purpose of removing
or protecting the fencing within the ROW.
13. The City may revoke its permission allowing the encroachment of fencing and/or license
to use ROW for any of the following reasons:
a. The City's current use or future use of the ROW prohibits the continued location
of the fencing;
b. The Owner fails to cooperate with City to allow City's use of the ROW;
c. The Owner fails to cooperate with public utilities or others with a legal right to
use ROW;
d. The Owner fails to maintain ROW in a manner satisfactory to the City;
e. The Owner fails to maintain fencing in ROW in a manner satisfactory to the City;
f. Local, state, or federal rules,laws,or guidelines relating to use of ROW prohibit
the continued location of the fencing or Owner's use of ROW;
g. The Owner fails to properly maintain,repair,or replace the allowed fencing;
h. The Owner fails to provide the City with annual written proof that the fencing is
covered by the required insurance.
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 ROW fencing or from Owner's license to
use ROW. The Owner shall protect and hold the City of Oshkosh harmless and
indemnify against all actions, claims and demands of any kind or character whatsoever
which are related to the fencing in ROW and Owner's license to use ROW.
15. Both parties understand and agree that accidents and incidents occurring on City property
or right-of-way 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
September 24, 2013 5
the fencing in the ROW and Owner's license to use ROW. 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 during which fences encroach into the ROW and Owner uses the ROW
pursuant to its license,the Owner's property liability insurance shall cover all potential
liabilities related to the fence and use of the ROW. The Owner's insurance shall provide
reasonable coverage for potential damages to persons and property cause wholly, or in
part,by the fencing.Minimum insurance coverage related to the fencing and use of ROW
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 fencing
and use of the ROW.The Owner shall annually provide the City with proof of insurance
for the fencing and use of ROW.
17. 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. The Owner's rights
contained in this Agreement do not attach to property and do not run with the land.
Permission for the fencing and use of ROW 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. Revocation
of permission for the fencing and use of the ROW will also occur where the Owner forms
an entity of which it is the sole or a partial owner.
18. 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 fencing or
the use of the ROW, as well as extend to any of the Owner's residents, visitors, or
tenants.
19. The Owner remains solely responsible for any actions taken by any tenant or property of
any tenant that are related to this Agreement.
20. This agreement is solely for the benefit of the parties to this agreement, and it is not
intended to benefit any third party, except to the extent that the City may take actions
against Owner based upon Owners interactions with public utilities or others having a
right to use the ROW for allowed purposes.
21. The election to enforce or not enforce any term of this agreement,or any statute,code,or
rule,as well as the timing of such 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 Owner's
fencing within the ROW or use of the ROW in the future.
22. This Agreement does not waive, alter, or affect any of the City's statutory or common
law immunities or limitations of liability and,additionally,affirmatively incorporates into
this Agreement all immunities and limitations provided to municipalities within the
Wisconsin Statutes,regardless of whether the claim is based upon contract,tort,or other
theory.
September 24, 2013 6
This Agreement is personal to the Owner and is not a restriction,covenant,or burden upon property
and therefore does not convey any property rights and shall not run with the land. This Agreement
may be recorded with the Register of Deeds for information purposes only.
This agreement shall become effective upon the last date a party signs below.
[SIGNATURE PAGE FOLLOWS]
September 24, 2013 7
PRIVATE PROPERTY OWNER:
CENT Y OAKS HOMES,LLC
Paul D. Moran,Managing Member
STATE OF WISCONSIN )
) ss.
to;w � COUNTY )
Personally came before me this ' day of a , 2013, the above-named
Paul D. Moran, to me known to be the person(s) who executed the foregoing document and
acknowledged the same. ••. . . ..
•.•0•{ HEtTA •,,
9 G
��. s_ •
NOTAR y Notary Public, ` , , . Coun ' isconsin•
- Ivey Commission expires: pa/IS
▪ PUBOG :
l • •......• 'Q�•:
RIGHT OF WAY OWNER., OF W\Sf;•
CITY OF OSHKOSH
By: vet--4:-,--41-6e, And:' �' �4 _ AI
Mat Rohioff City Manager Pamela R. Ubrig, City Clerk
M y g
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this 3 day of No v e h-v r , 2013, the above-named
MARK A.ROHLOFF,CITY MANAGER,AND PAMELA R.UBRIG,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.
C7/(ii (/G/L
Notary Publib,Winnebago County,Wisconsin
My Commission expires: . i,2 )`7
September 24, 2013 8
Exhibit
Walnut Street Encroachment
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4-foot high wrought iron fence LOCATION MAP
SE 114 SEC 11,T10N,R18E,
CITY OF OSHKOSH
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Exhibit B
Walnut Street Encroachment
Example of fence type for Century Oaks Development
Walnut_Street Encroachment—Northern Property Line Section
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6' cedar board (dog ear)with 1.5" overlap that straddles the property line. The fence will
reduce to a 4' height within the Vinland setback
Example of fence type for Century Oaks Development
Walnut Street Encroachment—Southern Property Line Section
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4'wrought iron fence that straddles the property line