HomeMy WebLinkAboutEncroachment- Randall SyvrudEncroachment Agreement 8 5 6 5 9 5 9
Tx:4416226
Document Number DOC# 1808123
NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
01/17/2020 10:37 AM
RECORDING FEE: 30.00
PAGES: 10
and Return Address
City Attorney's Office �f
PO Box 1130 QZl
Oshknsh. WT 5d9n3_1 Pin
90601080000
Parcel Identification Number
CITY OF OSHKOSH
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
December 5, 2019 1
REVOCABLE ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh ("City'), and Randall Syvrud ("Owner").
The parties enter into this Agreement for $1.00 and other good and valuable consideration, the
sufficiency and receipt of which is acknowledged.
A. The Owner is the fee owner of Property commonly known as 815 Ohio Street (also known as
600 W. 9' Avenue), which is more particularly described as follows:
Lot Three (3) in CITY'S REPLAT NO.3, in the Sixth
Ward, City of Oshkosh, Winnebago County, Wisconsin.
B. The Property's East and South boundaries adjoin a public right-of-way used for various
public utilities, public sidewalks, and a public vehicular way commonly known as Ohio
Street on the East, and West 90' Avenue on the South. The City currently owns and/or is
responsible for maintenance of the rights -of -way for Ohio Street and West 9' Avenue, and
therefore has the authority to enter into this Agreement.
C. The Owner proposes to install an awning that would be attached to the building fagade and
will project into the right-of-way along both streets. The new awning would replace a
damaged or deteriorated awning that had previously been installed without an Encroachment
or similar agreement. These awnings will extend no more than fourteen inches (14") from
the fagade and into the right-of-way. This awning will be no less than eight feet six inches
(8'6") above the sidewalk. A map of the Encroaching Awnings are attached as Exhibit A.
D. Also encroaching into the Ohio Street right-of-way is one air conditioner unit. The air
conditioning unit is generally described as a "window" unit style, although in this case the
unit is inserted into the building wall. This air conditioning unit was also previously installed
without an Encroachment or similar agreement. This air conditioner unit will also be no less
than eight feet six inches (8'6") above the sidewalk. The City will allow this existing air
conditioner encroachment to remain in the same or materially similar form as currently exist.
E. The parties also note that the Owner's private steps are located in both the Ohio Street and
the West 9'h Avenue rights -of -way. The steps allow ingress and egress between the building
and the sidewalk. The parties acknowledge that the current sidewalk elevation requires steps
to access the building. While the steps are located within the right-of-way, that they remain
privately owned and are not part of the public sidewalk. The Owner's obligation and liability
for the steps are anticipated to be more fully described in a future through a privilege in street
or similar agreement. However, for the purposes of this Encroachment Agreement the
parties agree that the steps are the responsibility and liability of the Owner. The location of
the steps are identified within Exhibit A.
F. No structure or object is allowed to encroach into a public right-of-way without the City's
permission. The awnings and air conditioning unit (collectively, Encroachment) encroach
into the public right-of-way and therefore require the City's permission.
G. The City has reviewed the Owner's request to allow the Encroachment into the public right-
of-way. The City will allow the placement of the awnings and air conditioning unit subject
to the terms of this Encroachment Agreement. A material component of this Agreement is
the explicit understanding that the City's permission for Encroachments do not create or give
December S, 2019 2
the Owner any property right and instead is personal to the Owner and is revocable by the
City.
H. This Encroachment will be allowed to project into the right-of-way at 815 Ohio Street,
provided that this Encroachment is materially similar to the design and specifications
submitted for the City's approval or, in the case of the air conditioning unit, remains
materially similar to the existing unit. The City notes that the awning is not lighted and shall
remain unlighted. A sketch of the plans submitted are attached hereto as Exhibit A for
reference purposes.
I. 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 regulations regarding
related to subjects including signs, streets, and sidewalks.
I Despite the fact that the Encroachment will be within the public right-of-way, the
Encroachment remains privately owned and the responsibility of the Owner. The Owner
agrees that it is solely responsible for the installation and maintenance of the Encroachment,
and that it is solely responsible for any and all personal or property damage caused by the
Encroachment. Without limiting any responsibilities described elsewhere, and for clarity
Purposes, included in the Owner's responsibilities are responsible for addressing any water or
substance that may drip from the air conditioning unit to the sidewalk or other parts of the
right-of-way.
K. The Owner is solely responsible for securing, 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 or warranties the short and long term stability and
safety of the Encroachment as proposed, and that it always remains the responsibility and
liability of the Owner.
L. The Owner acknowledges and agrees that public utilities and facilities, including the street
and sidewalk, as well as landscaping, located within the right-of-way are subject to
maintenance, repair or replacement. To that end,
1. The Owner is solely responsible for removing or otherwise protecting the
Encroachment if they will be affected by any public maintenance, repair, or
replacement projects or activities within the right-of-way. The City will not be
responsible for any costs related to the disruption or removal of the Encroachment.
2. The Owner is solely responsible for protecting public utilities and facilities, including
landscaping, as well as those using the public right-of-way from adverse effects
related to the existence of the Encroachment.
3. In the event that maintenance, repair, or replacement ofpublic utilities or facilities in
the right-of-way is planned near the Encroachment, the City agrees to make
reasonable efforts to notify the Owner of these projects or activities in advance.
4. 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.
December 5, 2019 3
5. The City shall not be responsible for any damage to the Encroachment, or any
structure or hardware to which the Encroachment is attached, related to any public
maintenance, repair, or replacement project in the right-of-way.
6. 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.
7. The Owner shall be responsible for reinstalling/reattaching the Encroachment
regardless of who removed the Encroachment.
8. The City shall be reimbursed by the Owner for all costs and expenses incurred by the
City that are related to removing or protecting the Encroachment.
9. 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 Owner's Property at the location of or adjoining the Encroachment area
but only for the sole purpose of removing or protecting the Encroachment and only to
the extent reasonably necessary to achieve those objectives.
M. 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
N. The City is allowed to revoke its permission for the Encroachment for any of the following
reasons:
The public use of the right-of-way prohibits the continued existence of the
Encroachment;
2. The continued existence of the Encroachment would unreasonably limit the public
uses of the right-of-way, with such a determination at the discretion of the City;
3. The Encroachment interferes with or may potentially damage landscaping and/or
other streetscape improvements;
4. Local, state, or federal rules, laws, or guidelines relating to right-of-way obstructions,
encroachments, or uses, including public sidewalk, street, or streetscape clearances or
distances, prohibit the continued location of the Encroachment;
5. The Owner fails to properly maintain, repair, or replace the Encroachment;
6. The Owner fails to provide the City with annual written proof that the Encroachment
is covered by the required insurance
O. In the event that 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 remove and
December 5, 2019
dispose of the Encroachment at Owner's expense
P. Both parties understand and agree that accidents and incidents occurring on City rights_of-
way may result in lawsuits or threats of lawsuits against the City. 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, hold harmless, and indemnify the City of
Oshkosh against all actions, claims and demands of any kind or character whatsoever which
are related to the Encroachment. This hold harmless and 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 privileges granted by the City under this
Agreement.
Q. At all times during which the Encroachment extends into the right-of-way, 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 caused 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 Owner's insurance shall
include the City of Oshkosh as an additional insured on its policy for claims, liabilities, and
damages related to the Encroachments. The owner's insurance shall provide primary
coverage and that any insurance or self insurance maintained by the City of Oshkosh, its
officers, council members, agents, employees or authorized volunteers will not contribute to
a loss. The Owner shall annually provide the City with proof of insurance for the
Encroachment.
R. The City's encroachment permission is personal to the Owner, is not intended to convey or
grant any property rights or waive any governmental regulatory rights, 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 Encroachments are 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 at 815 Ohio Street.
Revocation of permission for the Encroachments will also occur where the Owner forms a
different entity to own the Property in whole or in part of which they are the sole or partial
owner.
S. The Owner's responsibilities and liabilities pursuant to this Agreement extend to other
Persons, contractors, and agents performing work on Owner's behalf and related to the
Encroachments. In the event that Owner causes "others" to perform work related to the
Encroachment, the Owner will at all times remain primarily liable to the City.
T. The Owner remains responsible for any actions taken by any of Owner's tenants, licensees,
invitees, or property of any tenant, or service provider that are related to this Agreement. The
City is not bound by the terms of any other agreement that doesn't involve the City as aparty.
Therefore, the Owner remains responsible for all aspects related to the Encroachment
regardless of the terms of any separate private agreement(s) it may have with any tenant or
other person.
December 5, 2019 5
1 1. The Owner agrees to be bound by the terms of this Agreement regardless of the existence of
any other Agreements with the City related to the Encroachment.
V. This Agreement is solely for the benefit of the parties to this Agreement, and it is not
intended to benefit any third party or any successor in interest of the Property.
W. 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 Encroachment in the
future,
X. This Agreement shall incorporate and apply all immunities and limitations provided to and
Protecting municipalities within the Wisconsin Statutes, regardless of whether a claim is
based upon contract, tort, or other theory.
Y. This Agreement shall not attach to or run with the land, but may be recorded with the
Register of Deeds only for notice purposes.
Z. This Agreement shall become effective upon the last date a party signs below.
PROPERTY OWNER:
—a~4R ntiall�S}Rn
STATE OF WISCONSIN )
as.
WINNEBAGO COUNTY )
Personally came before me thisIkdayof lty� 2019, the
be the person who executed the foregoing document and gQmowledlted the same. 1
My Commission expires:
CITY OF OSHKOSH
By:A'r����'�
Mdrk A. Rohloff, City Manager
�0� K.
1P , pUBI
%,F OF W�SG�o
Syvrud, to me known to
1 2Z2L
STATE OF WISCONSIN )
) as.
W94MAGO COUNTY )
Personally came before me this�rllay off rY UC f , 2019, 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 foregiilyg.,,,,.
instrument as such officers as the deed of said corporation, by its authority.Ad i22en—
Notary Pu lio, to of Wisconsin
My Commission expires: f2 15 2 : 0
December S, 2019 6
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