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HomeMy WebLinkAboutEncroachment/Meyer/1607840300 CITY OF OSHKOSH LEGAL DEPARTMENT 215 CHURCH AVENUE, P.O. BOX 1130, OSHKOSH, WI 54903-1130 PHONE: (920)236-5115 FAX (920)236-5106 LETTER OF TRANSMITTAL To: Julie Mayer Date: September 23, 2014 902 Adams Avenue Pro'ect: N/A Oshkosh, WI 54902 From: Carol Marchant, Adm. Assistant Re: Encroachment Agreement Attn: Please find: � Attached ❑ Under Separate Cover ❑ Copy of Letter � Agreement ❑ Amendment ❑ Report ❑ Agenda ❑ Meeting Notes ❑ Photos ❑ Mylars ❑ Change Order ❑ Plans ❑ Specifications ❑ Estimates ❑ Diskette ❑ Zip Disk ❑ Other Quantit Description 1 Co of Revocable Encroachment A reement These are being transmitted as indicated below: ❑ For Approval � For Your Use ❑ As Requested ❑ For Review 8� Comment Remarks: cc: City Clerk (copy— original was lost after recording) Public Works, Engineering (copy) City Attorney (copy) ►: - - 1 , e� ' �I IIIIIIIIIIIIIIIIIIIIIIIIIIIII . 8173183 REVOCABLE ����,��g Encroachment Agreement REGISTER'S OFFICE DocumentNumber WINNEBAGO COUNTY� WI RECORDED ON 09/05/2014 10:27 AM JULIE PAGEL REGISTER OF DEEDS RECORDING FEE 30.00 PAGES: 10 Recording Area Name and Return Address ����C City Attorney's Office Oshkosh,WI54903-1130 91607840300 Parcei Identifcation Number CITY OF OSHKOSH AND PROPERTY 0 WNER This document drafted by: David J. Praska,Assistant City Attorney City of Oshkosh, Wisconsin �O � June 17, 2014 1 �� � REVOCABLE ENCROACHMENT AGREEMENT This agreement is between the City of Oshkosh (City) and Julie J. Mayer, (Owner). The parties enter into this agreement for$1.00 and other good and valuable consideration as described in this Agreement, the receipt of which is acknowledged. The Owner is the fee owner of the property identified with Parcel Number 91607840300 and commonly known as 902 Adams Avenue, Oshkosh (Property). The City retains pubiic right-of-way currently utilized for the location of Adams Avenue (R-O-W) adjoining the Property's south boundary. The Owner's Property adjoining City right-of-way is more particulariy described as: The South Sixty (60) feet of the East Twenty-six and Seven Tenths (26,7) feet of Lot Sixteen (16} and the South Sixty (60) feet of Lots Seventeen (17) and Eighteen (18) of Block Twenty-two (22), in OSHKOSH LAND COMPANY PLAT, in the Sixteenth Ward, City of Oshkosh, Winnebago County, Wisconsin and also that part of Section Fourteen (14), Township Eighteen (18) North of Range Sixteen (16) East, lying easterly of the above described real estate and premises. The R-O-W adjoins the Property's south boundary and extends east until ending aUin the Fox River. The public street known as Adams Avenue travels through the R-O-W and ends at a point in front of Owner's residence. The remaining portion of the R-O-W east of Adams Avenue is currently unused for public vehicular traffic, but contains vegetation and is available for and used by the public for pedestrian access to the Fox River for fishing and other activities. The Owner states that they have previously used a portion of the R-O-W for gardening purposes without the knowledge or permission of the City. Owner now seeks the formalization of this garden use. Owner desires to use a part of the R-O-W between the end of Adams Avenue and the Fox River for gardening purposes. Owner requests the opportunity to use a Twenty (20) foot by forty (40) foot area within the R-O-W but not currently used as Adams Avenue for vegetable gardening for her personal use (Garden). An underground storm water pipe is located in the Adams Avenue R-O-W that is not currently open to vehicles. The location of the Garden is attached as Exhibit A. A map identifying the location of the Garden is attached as Exhibit B. The City has reviewed the Owner's request and will allow the placement of the requested encroachment. The approval of the encroachment is premised on its construction and maintenance in a manner consistent with this Agreement, with City ordinances, with the needs of the City, with the needs of the public, and with the principal of fairness for those using public rights of way. The Owner understands that some or all of the Garden encroachment area may consist of"fill"and/or river sediment that may not be naturai to the site. The City has never tested this soil and therefore cannot state that any part of the R-O-W, including the Garden encroachment area, is safe or even suitable for gardening. Owner agrees to use the Garden encroachment entirely at her own risk and is encouraged to take a!I necessary precautions to make sure that the soil is suitable for growing products that may be June 17, 2014 2 consumed. Owner shaii hold the City harmless from all ctams or damages related to the Garden encroachment, whether based upon claims of the Owner, or any other person or entity. 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. 1. The City grants permission to the Owner to use a portion of its Adams Avenue R-O-W currently unused for Adams Avenue for vegetable gardening for her personal use, provided Owner complies with all current and future rules and requirements of the City. 2. The City's permission is fully revocable at any time solely at the City's discretion. In the event that the City revokes its permission, the City agrees that it will attempt to make reasonable accommodations allowing Owner to remove produce grown in the Garden before the City takes further action. 3. The allowed location of the Garden is described in the attached Exhibit A, and identified in the attached Exhibit B. 4. Terms of use specific to the proposed garden use are as follows: a. Owner may only dig up and use for personal gardening purposes the maximum area described in this Agreement. b. Owner may install a boarder around the garden area no higher than eight (8) inches from the R-O-W grade. c. Owner shall not install any fence on the R-O-W except a temporary wire fence no taller than twenty-four (24) inches from the R-O-W grade. All fences must be removed between the growing seasons. d. Owner shall not remove any soil from the Garden encroachment. e. Owner shall not install or create any raised bed(s) on the Garden encroachment. f. Owner shall not dig more than twelve (12) inches below the R-O-W grade for any purpose. - g. Owner shall not build, install, or create any structures, fixtures, or ornaments on the Garden encroachment or on any other party of the R- O-W. h. Owner shall use the Garden encroachment for growing vegetables for personal family use and/or consumption. Excess produce may be given away to family, friends, and neighbors, but shall not be sold or otherwise distributed. � June 17, 2014 3 i. The Garden encroachment area shall not be used for flowers or a flower garden. j. Owner shall keep the Garden encroachment free of weeds, grasses, and ! or vegetation not part of the vegetable garden taller than eight (8) inches. k. Owner shall be responsible for making sure that soil from the Garden encroachment is not carried away from the site through erosion or similar results from other weather-related events. I. Owner shall be responsible for making sure that any chemicals used at the Garden encroachment do not leave this site or adversely affect any surrounding area. m. Owner may use less area than the Garden area described in this Agreement. If this occurs, then Owner is responsible for the reseeding of this area. Owner must contact the City Department of Public Works for instructions on the reseeding that is required by the City. n. Owner must contact the City when they intend to cease use flf the property. At this point, the Garden encroachment site must be reseeded according to the City specifications as soon as practicable within the constraints of the weather. 5. Owner agrees as follows: a. Owner undertakes all activity in the Garden encroachment at her own risk. Owner understands that public access on all areas of the R-O-W will remain, including potentially the site of the Garden encroachment. b. Neither the City nor the Owner will place signs at or near the Garden encroachment site. Prohibited signs include, but are not limited to, signs referencing the Owner, or the garden, or assert that it is private property or assert that others must "keep out" or contain similar messages. c. The City is not responsible for any loss or damage related to the Garden encroachment, nor responsible for any garbage or refuse left at the site. d. Owner understands that the City will not consider the entrance of any member of the public onto the Garden encroachment to be a trespass or similar offence and no such citations will be issued. The City reserves the right to take any enforcement action necessary, at its sole discretion, related to the site. 6. The City's permission for this encroachment is contingent upon the initial, and continuing, compliance with this Agreement and all applicable local, state, and federal statutes, codes, rules, and Ordinances. June 17, 2014 4 7. The Owner agrees that they are solely responsible for the instailation and maintenance of the encroachment, and that they are solely responsible for any and all personal or groperty damage caused by the existence of the encroachments. 8. The Owner is solely responsible for securing, maintaining, repairing, and replacing the encroachments. The City's permission does not result in any acceptance or assumption of any liability or responsibility for the encroachments, to the Owner or to any third party, through its permission to locate the encroachments in the City's R-O-W. 9. The Owner acknowledges and agrees that surface area, public utilities, and public facilities within the City's R-O-W are subject to maintenance, repair or replacement. ln the event that maintenance, repair, or replacement of the surface or of any public facilities in the R-O-W is neces.sary, the City agrees to make reasonable efforts to notify the Owne�of these activities so that the Owner may protect or remove the encroachment. Protection or removal of encroachments shall be at the Owner's cost. If the Owner elects to protect or remove the encroachments, such actions must be taken within the timeframe for the City's anticipated work. The City shall not be responsible for any damage to the encroachments, or any real property or structure associated with or surrounding the encroachments. 10. In the event that the Owner elects, or fails, to remove or protect the encroachment, or in the event of an emergency, the City may take all reasonable actions to remove or reasonably protect the encroachment for the purpose of maintenance, repairs, and replacement of the surface or of any public facility. Removal or protection of the encroachment shall be at Owner's expense. The Owner shall be responsible for repairing, reinstalling or reconstructing the encroachment in all circumstances. The City shall be reimbursed by the Owner for all costs and expenses related to the encroachment. The Owner gives the City permission to enter, access, and alter the Prope�ty not included in the Easement for the sole purpose of removing or protecting the encroachment. 11. The City is allowed to revoke its permission for the encroachments for any of the following reasons: a. The City's use of the R-O-W prohibits the continued location of the encroachment; b. The City determines that an encroachment adversely affects the functioning of public facilities in the R-O-W; c. Any part of this Agreement is violated. The City's delay of any length of enforcement shall not act as a waiver of any rights of the City: d. The Garden encroachment is expanded in size or intensity of use without June 17, 2014 5 permission from the City: e. Local, state, or federal rules, laws, or guidelines relating to any pubiic facility located in the R-O-W, or any other local, state, or federal law prohibit the continued location of the Encroachments; f. The Owner fails to property maintain, repair, or replace the encroachment; g. The Owner fails to provide the City witf� annual written proof that the encroachment is covered by the required insurance. 12. 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 resuft from the encroachments. 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. 13. Both parties understand and agree that accidents and incidents related to the City's R-O-W, or the City's facilities located in the R-O-W, 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. 14. At all times that the Garden encroachment is located on City's R-O-W, the Owner's property liability insurance shall include coverage for al1 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 encroachments 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 po�icy for claims, liabilities, and damages related to the encroachment. The Owner shall annually provide the City with proof of insurance for the encroachment. 15. 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 encroachments, as well as successors and assigns, and those with any interest in the Property. 16. This agreement is solely for the benefit of the two parties to this agreement, and it is not intended to benefit any third party. June 17, 2014 6 17. The election to enforce or not enforce, as well as the timing of enforcement, shall be at the City`s sole discretion and shal( not act as a waiver of any rights to exercise any right relating to the encroachment in the future. 18. This agreement shall incorporate ali immunities and limitations on liability provided to municipalities within the Wisconsin Statutes, regardless ofwhethera ciaim is based upon contract, tort, or other theory. 19. This revocable encroachment agreement may be recorded with land records for the purpose of notification of the revocable nature of this encroachment and for the purpose of clarifying that the encroachment is applicabie to the Owner identified herein, and cannot be conveyed, transferred, distributed, sublet; assigned, licensed, or otherwise used in any way by anyone other than the Owner identified in this Agreement. [SIGNATURE PAGE FOLLOWS] � Drafted by: Attorney David J. Praska Oshkosh, Wisconsin , June 17, 2014 7 ,� �q. Dated this�h day of '.�, 2014. ._,1 -; _ ' Julie J. May STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY ) _ Personally came before me this��day of '��2014,the above-named Julie J.Mayer,�tcme,known to be �. the person who executed the foregoing document and acknowledged the same. � -. � . . �.�.�.� o�° °�hr� � �'J'�' - � - � ,.�_ _ 2� �1 wi(-A ' �_ . � _ _ Notary Public, Co., Wisconsin _ - My Commission expires:��� ./Q �, �-l�,,' CITY OF OSHKOSH � ; By:. �--- And: � M rk A. Rohloff, City Manager amela R. Ubrig, City lerk STATE OF WISCONSIN ) )ss. WINNEBAGO COUNTY ) Personally came before me this o�S�day of ff���+�5� ,2014,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 cor,�oration, and�_ -_ acknowledged that they executed the foregoing instrument as such officers as the deed of said co�poration; by-its '�'- - authority. ,� '- Notary Public,Winnebago Co.,WI �' �, ,� - '; My Commission expires: o?- /2-/? .- _- - APPR���� c��V�Twisco sn, �xos►+, i June. 17, 2014 8 902 Adams Avenue Encroachment Commencing at the Southeast corner of Lot 13 of Block 14 of the Oshkosh Land Company Plat,thence easterly approximately 640 feet more or less along the northerly right-of-way line of Adams Avenue the point of beginning of the right-of-way encroachment; thence continuing easterly along the northerly right-of-way line of Adams Avenue 40 feet more or less to a point;thence southerly and perpendicular to the northerly right-of-way line of Adams Avenue 20 feet more or less to a point;thence westerly along a line parallel to the northerly right-of way line of Adams Avenue 40 feet more or►ess to a point; thence northerly and perpendicular to the northerly right-of-way line of Adams Avenue 20 feet more or less to the point of beginning. 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