HomeMy WebLinkAbout1402 Mount Vernon Street EncroachmentEncroachment Agreement
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
915058302000
Parcel Identification Number
December 19, 2017_7 7777�.777-77
1
�2
a
1757160
REGISTER'S OFFICE
WINNEBAGO COUNTY, WI
RECORDED ON;::;
12/28/2017 8:23 AM
NATALIE STROHMEYER
REGISTER OF DEEDS
RECORDING FEE 30.00
Recording Area PAGES: 12
Name and Return Address
City Attorney's Office
d
PO Box 1130
Oshkosh, WI 54903-1130
915058302000
Parcel Identification Number
December 19, 2017_7 7777�.777-77
1
Encroachment Agreement
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
December 19, 2017
Recorded Electronically
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Recordine Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh. WI 54903-1130
915058302000
Parcel Identification Number
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh (City) and Housing Authority of the City of
Oshkosh, Wisconsin (Housing Authority). 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.
A. The Housing Authority is the fee owner of Parcel Number 91505830200, which is the
property commonly known as 1402 Mount Vernon Street, Oshkosh (Property), which is more
particularly described as follows:
Lot 2 of Certified Survey Map 7294, recorded with the Winnebago
County Register of Deeds on November 29, 2017, as Document
Number 1755133, located in Section 13, Township 18 North, Range
16 East, in the Fifteenth Ward, City of Oshkosh, Winnebago County,
Wisconsin.
B. The western part of the Property includes an area that was formerly part of the City's Mount
Vernon Street public right-of-way. This part of the Mount Vernon right-of-way was vacated
pursuant to Common Council Resolution 15-60 on February 24, 2015 (Vacated ROW).
After this part of the Mount Vernon Street right-of-way was officially vacated, it was
transferred to the Property. The Mount Vernon Street right of way vacation is described in
Document number 1682155, filed with the Winnebago County Register's Office on March 2,
2015. The City Resolution and recorded right-of-way vacation documents are attached as
Exhibit A and are incorporated into this Agreement.
C. When the Vacated ROW occurred, the City retained an Easement over, under, and through
the vacated right of way as described in Resolution 15-60 and as allowed by State law, with
the relevant statutory section currently numbered as Section 66.1005, Wisconsin Statutes.
The City's retained Easement is for the purpose of using, installing, maintaining, repairing,
and replacing current or future public utilities within the Vacated ROW.
D. The City's Vacated ROW easement area located within the Property, is more particularly
described as:
Part of Mount Vernon Street public right-of-way that was vacated through
Common Council Resolution 15-60, was recorded with the Winnebago County
Register of Deeds March 2, 2015, as Document Number 1682155, all of which
is located in the southeast 1/4 of the northwest'/4 of Section 13, Township 18
North, Range 16 East, 15th Ward, City of Oshkosh, Winnebago County
Wisconsin, bounded and described as follows:
Commencing from the center of said Section 13, Township 18 North, Range
16 East; thence North 00° 11 ° 11'21" West, 915.46 feet along the East
line of the Northwest'/4 of said Section 13 to a point on the extended line of
the North right-of-way line of E. Custer Avenue; thence South 89°25'30" West,
632.81 feet along the extended North right-of-way line of E. Custer Avenue
December 19, 2017 2
to a point at the Northeast corner of Mount Vernon Street and E. Custer Avenue
to the Point of Beginning, with the Point of Beginning also described as a point
on the southerly line of Lot 2 of said CSM 7294; thence West along the southerly
line of Lot 2 of said CSM 7294, 60 feet, to a point at with the Northwestern corner
of the E. Custer Avenue and Mount Vernon Street intersection; thence North
00°09'34" west, 142.20 feet, along the West right-of-way line of the vacated
part of Mount Vernon Street to a point intersecting with a north line of said Lot 2
of CSM 7294; thence East along said North line of Lot 2, 60 feet, to a point on
the East right-of-way boundary of the vacated part of Mount Vernon Street; thence
South, and parallel to the West right-of-way boundary of the vacated part of
Mount Vernon Street, along the East right-of-way boundary of the vacated part of
Mount Vernon Street, 142.20 feet, to the Point of Beginning. This area containing
8,532 square feet or 0.196 acres more or less
E. The Housing Authority seeks permission from the City to allow it to encroach upon the
City's easement over, under, and through the Vacated ROW. The Housing Authority will be
constructing a parking lot and related private storm sewer system within the Vacated ROW,
and therefore the Encroachments may include driveways, drive aisles, parking areas, and
private utilities. A drawing of the requested driveway, drive aisle, parking area, and private
utility Encroachments, if any, is attached hereto as Exhibit B.
F. The City grants permission to the Housing Authority to Encroach into the City's statutory
public utility easement provided: 1) the Encroachment constructed is materially the same as
the Encroachment requested; 2) it is clear that the City's easement rights within the Vacated
ROW supersede the Housing Authority's Encroachment rights; and, 3) this Encroachment is
subject to the terms and conditions identified or referenced in this Agreement.
G. 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.
H. The Housing Authority agrees that it is solely responsible for the installation and
maintenance of all encroachments, including the driveway, drive aisles, parking area, and
private utility encroachments. The Housing Authority further agrees that it is solely
responsible for any and all personal and property damage caused by the existence of the
Encroachment.
I. The Housing Authority 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 Housing Authority.
J. The Housing Authority acknowledges and agrees that City's public utilities and public
facilities within the Vacated ROW statutory easement are subject to ongoing operation,
maintenance, repair, and replacement, as well as the potential installation of new or
additional facilities. To that end,
December 19, 2017 3
1. The Housing Authority is solely responsible for removing or otherwise protecting the
Encroachment, or rerouting access or removing parking, 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 Housing Authority is solely responsible for protecting public utilities and
facilities from adverse effects related to the existence and use of the Encroachment.
3. In the event that maintenance, repair, replacement, or installation of public utilities or
facilities in the easement is planned, the City agrees to make reasonable efforts to
notify the Housing Authority of these projects or activities in advance.
4. If the Housing Authority elects to remove or to otherwise take actions to protect the
Encroachment (as opposed to the City 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
Housing Authority structure, feature, or landscaping within the City's Vacated ROW,
, 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 a public project involving
installation, maintenance, repairs, and/or replacement of public utilities and facilities
within the easement requires such removal.
7. The Housing Authority shall be responsible for reinstalling/replacing the
Encroachment regardless of which party removed the Encroachment.
8. The City shall be reimbursed by the Housing Authority 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 Housing Authority 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.
L. The City acknowledges the Housing Authority's investment in improving the surface of the
Vacated ROW easement property. The City also acknowledges the fact that some or all of
the surface improvements are the result of City zoning requirements for the Housing
Authority property. Both parties acknowledge that at some point in the future, the City's
Vacated ROW easement uses may conflict with the Housing Authority's use of the surface as
allowed in this Agreement. Such conflicts will need to be resolved in favor of the City's
public utility and facilities within the Vacated ROW easement. However, except for
emergencies, the City agrees to consult with the Housing Authority and in good faith assist
December 19, 2017 4
with any approvals or changes necessary to ensure the continued functioning of the Housing
Authority'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 Housing
Authority'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
Housing Authority's use of the surface of the Vacated ROW easement:
The City's use of the Vacated ROW utility 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 encroachments;
5. The Housing Authority fails to property maintain, repair, or replace the
Encroachment;
6. The Housing Authority fails to provide the City with annual written proof that the
encroachments are covered by the required insurance; or,
7. Any other lawful reason or circumstance.
M. In the event that the Housing Authority fails or refuses to make changes or remove its
Encroachment as described in this Agreement, the City may remove and dispose of the
Encroachment at the Housing Authority's expense.
N. The Housing Authority 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 Housing Authority 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 Vacated
ROW easement, or the City's facilities located in the Vacated ROW easement, may result in
lawsuits or threats of lawsuits against the City. Therefore, the Housing Authority 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 or to the extent caused by
the Encroachment. This indemnification is broad, and shall include damages, attorney's fees
and costs, and defense costs. The payments required of the Housing Authority by this
paragraph are due no later than 30 days after written request for such indemnification. The
December 19, 2017 5
Housing Authority 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 that the driveway, drive aisles, parking areas, private utilities, and any other part
of the Encroachment are located in the easement, the Housing Authority's liability insurance
shall cover all potential liabilities related to the encroachments. The Housing Authority'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 Housing Authority shall include the City of
Oshkosh as an additional insured on its policy for claims, liabilities, and damages related to
the Encroachment. The Housing Authority shall annually provide the City with proof of
insurance covering the Encroachment.
Q. The Housing Authority's responsibilities and liabilities pursuant to this Agreement extend to
other persons, contractors, and agents performing work on the Housing Authority's behalf
that are 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 Housing Authority rents or leases the Property, the Housing
Authority 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 for notice
purposes only. The action of recording this Agreement shall not imply the conveyance of
any interest in land. This Agreement shall expire upon the 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 or revocation of this
Agreement and remove the Encroachment at the expense of the Housing Authority or other
person responsible for the continued existence of the Encroachment.
[SIGNATURE PAGE FOLLOWS]
December 19, 2017 6
.► 1
Dated thiday of 12017.
HOUSING AUTHORITY FOR THE CITY OF OSHKOSH,
B:
S saliva v, 14 b u to e n e
(Print Name) rint Title)
STATE OF WISCONSIN
WISCONSIN
) ss.
COUNTY )
Persona ly came before me this day of �c/ , 2017, the above-named
'9o,r.,, .kc..�/••� � to menown kto be the person who executed the foregoing
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document and acknowledgl� 'I (q, P,
P .��
114j,. TE OF ��5=
CIT OSHKOSH
By: And: UN V l _
i ager geta 'g, C1 rkArcll�
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY )
>49Public, State of Wisconsin
My Commission expires:��,/
�,1oNNF��p�y�lersonally"Ph
e before me this �� day of 17ic�McSr,F- , 2017, the above-named
Manager, and ��, � Wig,OC Clerk, of the City of Oshkosh, a
municipal corporation, to me known to b t persons who execUed 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.
�' A, V
Notary Public, State of Wisconsin
My Commissionzxpir&s: 1rt^VAeA
December 19, 2017 7
VACATE PORTION OF 1400 BLOCK OF MOUNT
VERNON STREET (RES 15-60)
Document Number Document Tltle
8 2 0 2 2 0 2
.667;3:
REGISTER'S OFFICE
WINNEBAGO COUNTY, WI
RECORDED ON
03/02/2015 1:40 PM
)ULIE PAGEL
REGISTER OF DEEDS
dins A�ECORD><NG F F2n dO
and Return AddVAGES; 4
CITY CLERK'S OFFICE copQ
PAMELA R. UBRIG
P .0. BOX 1130
OSHKOSH WI 54902-1130
Parcel Identification No.
�j
ExhibitA-ILL
FEBRUARY 24, 2015 15-60 RESOLUTION
(CARRIED 7-0
PURPOSE:
LOST LAID OVER WITHDRAWN )
FINAL RESOLUTION VACATING PORTION OF MOUNT
VERNON STREET 1400 BLOCK
INITIATED BY: WINNEBAGO COUNTY HOUSING AUTHORITY
PLAN COMMISSION RECOMMENDATION: Approved
WHEREAS, pursuant to Section 66.1003(4) of Wisconsin Statutes, the Common
Council has heretofore initiated proceedings on January 13, 2015 at a regular meeting
of the Common Council to vacate and discontinue a portion of Mount Vernon Street, in
the City of Oshkosh as described below; and
WHEREAS, a public hearing on the passage of such resolution has been set by
the Common Council, which hearing was set for 6:00 PM in the Council Chambers of
the City Hall, Oshkosh, Wisconsin, on the 24th day of February, 2015 and written notice
of such meeting was duly served on the owners of all of the frontage of the lots and
lands abutting upon that portion thereof sought to be discontinued as provided by law;
and
WHEREAS, a public hearing was duly held pursuant to said notice at the time
and place therefore affixed and all persons so served and interested were then and
there given an opportunity to be heard; and
WHEREAS, the lots and lands abutting that portion of said street or alley within
said City affected by this resolution are in the 15th Ward, City of Oshkosh, the
description of said street or alley heretofore set out in this Resolution.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that it is hereby declared that since public interest requires it, that portion of
the following described street and/or alley in the 15th Ward, City of Oshkosh, Winnebago
County, Wisconsin, is hereby vacated and discontinued, reserving unto the City of
Oshkosh and any utility affected by this Resolution, the right to maintain, service, repair,
add, replace, or install in the future, sanitary sewer, storm sewer, water main and other
utility facilities in said vacated streets or alley, subject to the restriction that no
improvements are allowed within the reserved area, including but not limited to, building
structures, driveways, parking areas, landscaping or fences. Any improvements shall
be allowed only by special exception of the Board of Public Works.
Exhibit � ) 00
FEBRUARY 24, 2015 15-60 RESOLUTION
CONT'D
PART OF MOUNT VERNON STREET, LOCATED IN THE SOUTHEAST % OF THE
NORTHWEST % OF SECTION 13, TOWNSHIP 18 NORTH, RANGE 16 EAST, 15TH
WARD, CITY OF OSHKOSH, WINNEBAGO COUNTY WISCONSIN BOUNDED AND
DESCRIBED AS FOLLOWS:
COMMENCING FROM THE CENTER OF SAID SECTION 13, TOWNSHIP 18 NORTH,
RANGE 16 EAST; THENCE NORTH 00°11'21" WEST, 915.46 FEET ALONG THE
EAST LINE OF THE NORTHWEST % OF SAID SECTION 13 TO POINT ON THE
EXTENDED NORTH RIGHT-OF-WAY LINE OF E. CUSTER AVENUE; THENCE
SOUTH 89025'30" WEST, 632.81 FEET ALONG THE EXTENDED NORTH AND
NORTH RIGHT-OF-WAY LINES OF E. CUSTER AVENUE TO THE NORTHEAST
CORNER OF MOUNT VERNON STREET AND E. CUSTER AVENUE AND POINT OF
BEGINNING; THENCE SOUTH 89°25'57" WEST, 60.00 FEET TO THE NORTHWEST
CORNER OF SAID MOUNT VERNON STREET AND E. CUSTER AVENUE; THENCE
NORTH 00°09'34" WEST, 142.20 FEET ALONG THE WEST RIGHT-OF-WAY LINE OF
SAID MOUNT VERNON STREET; THENCE NORTH 89°25'57" EAST, 60.00 FEET TO
A POINT ON THE EAST RIGHT-OF-WAY LINE OF SAID MOUNT VERNON STREET;
THENCE SOUTH 00009'34" EAST, 142.20 FEET ALONG THE EAST RIGHT-OF-WAY
LINE OF SAID MOUNT VERNON STREET TO THE POINT OF BEGINNING. SAID
AREA CONTAINS 8,532 SQUARE FEET OR 0.196 ACRES, MORE OR LESS.
BE IT FURTHER RESOLVED that the City Clerk record a certified copy of this
Resolution accompanied with a map showing the location of said vacated street or alley
in the Office of the Register of Deeds for Winnebago County.
Exhibit
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approximate relative location of property, boundaries and other feature from a variety of sources.
Printing Date: 12/2912014
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appropriate for legal, engineering, or surveying purposes. They are provided 'AS -IS" without
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warranties of any kind and the City of Oshkosh assumes no liability for use or misuse.
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approximate relative location of property, boundaries and other feature from a variety of sources.
Printing Date: 12/2912014
203 207
appropriate for legal, engineering, or surveying purposes. They are provided 'AS -IS" without
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warranties of any kind and the City of Oshkosh assumes no liability for use or misuse.
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approximate relative location of property, boundaries and other feature from a variety of sources.
Printing Date: 12/2912014
These map(s)/dataset5 are provided for information purposes only and may not be sufficient or
appropriate for legal, engineering, or surveying purposes. They are provided 'AS -IS" without
Prepared by: City of Oshkosh, W1
warranties of any kind and the City of Oshkosh assumes no liability for use or misuse.
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Exhibit 6