HomeMy WebLinkAboutEncroachment Agreement Valerie Neuman 1345 Otter AvenueIl 111111 l llllllllli l
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Encroachment Agreement 1750686
Document Number
REGISTER'S OFFICE
WINNEBAGO COUNTY, WI
RECORDED ON
10/02/2017 11:12 AM
NATALIE STROHMEYER
REGISTER OF DEEDS
RECORDING FEE 30.00
PAGES: 10
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh, WI 54903-1130
90802950000 '
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
September 12, 2017
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh (City) and Valerie J. Neuman (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 90802950000 and
commonly known as 1345 Otter Avenue, which is more particularly described as follows:
Lot 20 in Reeder Smith's Addition to Oshkosh, in the Eighth Ward,
City of Oshkosh, Winnebago County, Wisconsin.
2) The City retains a Sanitary Sewer Easement (Easement) over and through the East Ten (10)
feet of the Property , with this Easement and its terms recorded with the Winnebago County
Register's Office on June 12, 1936 as Document Number 436, and is attached and incorporated
into this Agreement as Exhibit A.
3) The Owner proposes installing fencing within and across the City's Easement. The Owner
proposes a wood fence along the East Property boundary, which will encroach into the City's
Easement. The fencing will 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 a City easement without the City's
permission. The proposed fence would encroach into the City's public Easement and therefore
requires City permission.
5) The City has reviewed the Owner's request to allow a wood fence to encroach into the City's
sanitary sewer 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.
6) This Encroachment consisting of a fence will be allowed to project into the City's Easement,
provided that the actual Encroachment constructed is materially similar to the design and
specifications submitted for the City's approval.
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 rules. The Encroachment shall
comply with City Ordinances, and state and federal laws and regulation regarding related
subjects including setbacks, fencing, zoning, property maintenance, permitting, and public
nuisance.
8) The Owner agrees that she is solely responsible for the installation and maintenance of the
Encroachment, and that she is solely responsible for any and all personal or property damage
caused by the Encroachment.
September 12, 2017 2
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 public utilities and facilities, including those
located within the City's Easement, are subj ect to maintenance, repair, and replacement. To that
end,
a) The Owner is solely responsible for removing, or protecting if the circumstances warrant and
the City Agrees, 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 or removal of the Encroachment.
b) The Owner is solely responsible for protecting public utilities and facilities from adverse
effects related to the existence of the Encroachment.
c) In the event that maintenance, repair, or replacement of public utilities or facilities in the
Easement is planned near 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 and within the timeframe for the
City's anticipated work.
e) The City shall not be responsible for any damage to the Encroachment, or any structure or
hardware attached to the Encroachment.
f) The City has no obligation to remove, but shall be allowed to remove, at its sole discretion,
the Encroachment in the event that a public project involving maintenance, repairs, and/or
replacement of public utilities and facilities within the right-of-way requires such removal.
g) The Owner shall be responsible for reinstalling / reconstructing the Encroachment regardless
of who removed the Encroachment.
h) In the event the City 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 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, 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.
September 12, 2017
12) The City is allowed to revoke its permission for the Encroachment at its sole discretion for
any of the following reasons:
a) The public use of the sanitary sewer Easement prohibits the continued existence and location
of the Encroachment;
b) The continued existence of the Encroachment would limit the public use of the Easement,
with such determination at the discretion of the City;
c) The City determines that the Encroachment adversely affects the functioning of sanitary
sewer Easement;
d) The Encroachment is increased and/or expanded 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 sanitary sewer Easement;
f) The Owner fails to properly maintain, repair, or replace the Encroachment;
g) 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 to remove and dispose of the encroachment at Owner's expense.
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 sanitary sewer
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 3 0 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 Easement, 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
September 12, 2017 4
encroachment shall be $300,000 for each occurrence for bodily injury and property damage
liability and $300,000 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 encroachments.
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 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.
21) The Encroachment shall not constitute a property right and the City's permission therefore
shall not run with the land. This Agreement may be recorded for the purpose of providing notice
if it's limited applicability.
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]
September 12, 2017 5
Dated: 9` 93 - 17
OWNER
Valerie J euman
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY )
Personally came before me this OU day of 2017, the above-named Valerie J. Neuman, to me known to be
the person who executed the foregoing document and acknowledged the same.
Notary Public, State of Wis ns'n
My Commission expires: N
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CITY OF OSHKOSH ,041* '*••.•. " `a
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And: '
Mar A. Rohloff, City Manager Pamela R. Ubrig, City Clerk
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this 1Z day of , 2017, 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 th executed the foregoing
instrument as such officers as the deed of said corporation, by its authori
Pubic, tate of Wiscons'
My Commi n expires:�y( 20 2-6
September 12, 2017 6
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