HomeMy WebLinkAboutEncroachment Agreement: 50 W. 6th Street, LLC III I ll III
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Encroachment Agreement DOC# 1772136
Document Number N TALIE STROHMEYER
REGISTER OF DEED
RECORDED ON:
0 /0 /201 09:08 APB
RECORDING FEE: 30.00
PAGES: 12
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,WI 54903-1.130
90300100000
Parcel Identification Number
CITY OF OSH.KOSH
AND
PROPERTY OWNER
This document drafted by,
David J.Praska,Deputy City Attorney
City of Oshkosh,Wisconsin
REVOCABLE E N C.ROACIIMF,.N T A G R E'E'HEW T
This Agreement is between the City of Oshkosh(City),and 50 West 6"'Street,LLC(Owner)
and The Granary Brew Pub,LLC(Tenant). The parties enter into this Agreement for$1,00 and other
good and valuable consideration, the sufficiency and receipt of which is acknowledged.
A. 'I'lic Owner is the fee owner of Property coninionly known as 50 West 6 th Avenue,which is
more particularly described as follows:
Lot I of Certified Survey Map No. 1252, recorded with the
Winnebago County Register of Deeds in Volume I of Survey
Maps Page 1252, on May 25, 1984 as Document Number
611506, located in the Third Ward, City of Oshkosh, Winnebago
County, Wisconsin,
B. The Property's South.boundary adjoins a public right-of-way used for various public utilities,
public sidewalks,and a public vehicular way con-n-nonly known as West 6 Ih Avenue.The City
currently owns and/or is responsible for maintenance of the right-of-way for West 6 Ih Avenue
and therefore has the authority to enter into this Agreement.
C. Part of the Property is leased to the Tenant for the purpose of operating a restaurant, brew
pub, and similar uses. The purpose of this encroachment is for the benefit of the Tenant to
assist with its business activities. Tenant is a party to this Agreement for the purpose of
ensuring that the Tenant is familiar with the rules and requirements related to this
Encroachment, and also to allow the City to work with the Tenant to resolve any issues.
However, despite the involvement of the Tenant, all obligations and requirements for this
Encroachment will remain the responsibility of the Owner.
D. No structure or object is allowed to encroach into a public right-of-way without the City's
permission. The proposed lights and brackets encroach into the public right-of-way and
therefore require the City's permission.
E. The Owner and Tenant propose to use part of the right-of-way adjacent to the Property to
operate a sidewalk caf6 pursuant to the Oshkosh Municipal Code. The sidewalk caf6, as
approved by the Common Council, includes recessed lighting fixtures that are within a
retaining wall on the Property but extend into the public right-of-way; and also includes
brackets attached to the retaining wall on the Property and also extend into the public right-
of-way. The lights have been installed for safety purposes and to enhance the sidewalk caB6
experience. The brackets have been installed to attach tables and benches that will remain
within the public right-of-way during the sidewalk caf6 season either being used, or folded
and locked overnight. This Encroachment Agreement covers the lights and brackets attached
to the retaining wall. All other features of the sidewalk caf6, including but not limited to
tables, chairs, benches, and other items are subject to the City's Municipal Code.
Maps/diagrams of the Encroaching lights and brackets is attached as Exhibit A.
F. The City has reviewed the Owner's and Tenant's request to allow lighting and brackets to
encroach into the public right-of-way. The City will allow the placement of the lighting and
brackets subject to the terms of this Encroachment Agreement. A material component of tbis
Agreement is the explicit understanding that the City's permission for Encroachments do not
July 6, 2018 2
create or give the Owner or the Tenant any property rights, and instead is personal to the
Owner and the Tenant and is completely revocable by the City.
G. This Encroachment consisting of lighting and brackets will be allowed to project into the
right-of-way at 50 West 6"'Avenue,provided that this Encroachment is materially similar to
the design and specifications submitted for the City's approval. A sketch of the plans
submitted are attached hereto as Exhibit A for reference purposes.
H. 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 streets, sidewalks, and sidewalk cafes.
I. Despite the fact that the lighting and brackets Encroachment will be within the public right-
of-way,the sign Encroachment remains privately owned and the responsibility of the Owner
and/or Tenant. The Owner and Tenant agree that they are solely responsible for the
installation and maintenance of the Encroachment, and that they are solely responsible for
any and all personal or property damage caused by the Encroachment. In the event that the
Tenant may otherwise have responsibility for the Encroachments, Owner will always be
ultimately responsible for compliance.
J. The Owner is solely responsible for securing, maintaining, repairing, and replacing the
Encroachment,although the Owner may allow the Tenant or others to perform these actions.
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,and that it always remains the responsibility and liability of the Owner and/or
the Tenant.
K. The Owner and'tenant acknowledge and agree 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 and/or Tenant is 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 for the disruption or removal of the Encroachment.
2. The Owner and/or Tenant is 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 of public utilities or facilities in
the right-of-way is planned near the Encroachment, the City agrees to make
reasonable efforts to notify the Owner and Tenant of these projects or activities in
advance.
4. If the Owner and/orTenant 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.
July 6, 2018 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 and/or Tenant 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 related to
removing or protecting the Encroachment. In the event that Tenant may separately be
responsible to Owner.for such costs, the City is not bound by any separate, private
agreements.
9. In the event the City is required to remove or protect the Encroachment for purposes
described in this Agreement, the Owner and Tenant gives the City permission to
enter,access,and alter the Owner's Property,and including that part of the Owner's
property over which Tenant has the right of possession,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.
L. Due to the revocable nature of the City's permission and the lack of any property rights
granted to the Owner or the Tenant, neither the Owner nor the Tenant is 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 lighting and bracket Encroachments.
M. The City is allowed to revoke its permission for the Encroachment for any of the following
reasons:
1. The public uses of the right-of-way prohibit 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,
encroachnients,or uses,including public sidewalk,street,or streetscape clearances or
distances, prohibit the continued location of the Encroachment;
5. The Owner or Tenant fails to properly maintain,repair,or replace the Encroachment;
6. The Owner and/or Tenant fails to provide the City with annual written proof that the
July 6, 2018 4
Encroachment is covered by the required insurance
N. In the event that Owner or Tenant 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 dispose of the sign at Owner's expense.
0. 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 and Tenant
release the City of Oshkosh, its employees, agents, elected officials, and authorized
volunteers from all debt,claims,demands,darnages,actions and causes of action whatsoever
which may result from the Encroachment. The Owner and Tenant shall protect, hold
harmless,and indemnify the City of Oshkosh against all actions,claims and demands o rany
kind or character whatsoever which are related to the Encroachment. This hold harmless and
indemnification is broad, and shall include damages, attorney'-,fees and costs, and defense
costs. The payments required of the Owner and Tenant by this paragraph are due no later
than 30 days after written request for such indemnification. The Owner and Tenant agree
that this paragraph shall be liberally construed in favor of the City of Oshkosh, in
consideration of the privileges granted by the City tinder this Agreement. .
P. At all times during which the Encroachment extends into the right-of-way, the Owner's
property liability insurance, and the Tenant's liability insurance, shall cover all potential
liabilities related to the Encroachment. The Owner's and`tenant'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 and Tenant'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 and Tenant'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 and Tenant shall annually provide the City with proof of insurance for the
Encroachment.
Q. The City's Encroachment permission is personal to the Owner and the Tenant, is not
intended to convey any property rights or waive any governmental regulatory or immunity
rights, and cannot be transferred or assigned to any other person or entity, whether
voluntarily or involuntarily. The Owner's and Tenant'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 50 West 6111 Avenue or, as of the time the Tenant is no longer leasing this
space at the Property. 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.
R. The Owner's and Tenant's responsibilities and liabilities pursuant to this Agreement extend
to other persons,contractors,and agents performing work on Owner's or Tenant's behalf and
related to the Encroachments. In the event that Owner and/or Tenant causes "others" to
perform work related to the Encroachment, the Owner will at all times remain primarily
liable to the City.
J111)) 6, 2018 5
S. The Owner remains responsible for any actions taken by any of Owner's tenants,licensees,
irivitees,or property of any tenant,or service provider that are related to this Agreement. The
Owner also remains responsible for all aspects related to the Encroachment regardless of the
terms of any separate private agreement it may have with any tenant of other person related
to the Property which may relate to the Encroachment.
T. The Owner and Tenant 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.
U. 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,
V. 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 C ity's sole discretion and shall
not act as a waiver of any rights to exercise any right relating to the Encroachment in the
future.
W. This Agreement does not waive and 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.
X. This Agreement shall not convey any property interest,or attach to or run with the land,but
may be recorded with the Register of Deeds only for notice purposes.
Y. This Agreement shall become effective upon the last date all parties have signed below.
Z. The persons signing this Agreement on behalf of any entity have asserted that they are
authorized to do so and the other parties have reasonably accepted those assertions,
[SIGNATURES ON FOLLOWING PAGE]
July 6, 2018 6
I'12C)}'ERTY OWNER:
50 West
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1:3y; het Wese I � ...�..�_.. ..._
S'I'ATf (')F WISC 0NS[N )
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WINNEBAGO COUNTY )
Personally came before me this >' day of..... Vt p w 2018,the above-named Chet het Wese;nberS,to me known to
be the Person rwtro executed the foregping docurnent and acknowled. ed the;sam
Notary Public, `tote of Wiscon `n
My C;c>mrnissic>xr expires: C.p .`{„c�-A=a__..
rl"ll.e Granary Brew Pill), 1-1_,C
C, e Wesenber), Mcal'il
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
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be the 7erPersonall Personally
the before m thin �1S umda to ��� 2,C)1& the abr,>vc-name(]Chet Wesc riberg,to me known to
,
I t; d acknowlec ed the s e.
y Pub ,State okiltils..�-----i—
Notar f
My Commission expires:
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� MaI; A. ��cahlc>fL` City Manager AIIC� � I'aI�I t .. 1g�m. _:= _..... � Ad
_ Y g Ubr , City Clerk,
ST/VI"I OF WISC ON:SIN )
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WINNEBAGO COUNTY ) t
Personally came before use this q clay of.... 4 _.. 2018,the above-named Mark A,Rohlof,,City Manager,
and Parnela R,Ubrig,City Clerk,of the City of Oshkosh,a rmn cipal 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 autltorit r
M1>tkC�nir�nris Commission f�Wisccrnsi r
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DATE(MWDDIYYYY) -
ACC>" CERTIFICATE OF LIABILITY INSURANCE
U7/09/2018
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT: if the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on
this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
PRODUCER CONTACT Thomas Wagner
NAME:
Thomas Benefit Planning Inc PHONE M(920)235-9800-- — FAX (920)235-9808
,{A/C No Ext: A/C,No
420 S.Koelier St.,Ste 207 EMAIL twogrier@thomasbetiefts.com
rier thomasbenefits.com
ADDRESS: 9
P.O.Box 358 INSURER(S)AFFORDING COVERAGE NAIC 0
Oshkosh WI 54903.0358 INSURER A: Society Insurance 15261
INSURED
INSURER B:
50 West 6th Street LLC
INSURER r,:
C/O Alliance Development INSURER D:
230 Ohio St Ste 200 INSURER E:
Oshkosh WI 54902 INSURERF:
COVERAGES CERTIFICATE NUMBER: CL187900587 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT,'TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL.THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCf I POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR ADDLSUBR.._._.__ ._ .____.....__.__._.__._._......._.. POLICY EFF POLICY EXP
LTR TYPE OF INSURANCE INSD WVD POLICY NUMBER MM/DD/YYYY MMIDD/YYYY LIMITS
X COMMERCIAL GENERAL LIABILITY — m. EACH OCCURRENCE $ 1,000,000
CLAIMS-MADE ®OCCUR DAMAGE TO RENTED
MED EXP(Any one person) $ 10,000 -
A BP180053'13 02/20/2018 02/20/2019 PERSONAL&ADV INJURY Va W $ 1,000,000
T
GEN'LAGGREGAIE LIMTAPPLIES PER��. .. GENERAL AGGREGATE ._._ $-'2,000,00U
POLICY PRO-- L LUf; PRODUCTS-COMP/OPAGG� $ 2,000,000 _
J
OTHER: $
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $
Ea accident
ANYAUTO BODILY INJURY(Per person) $
OWNED SCHEDULE)
AUTOS ONLY AUTOS BODILY INJURY(Per accident) $
HIRED NON-OWNED PROPERTY DAMAGE $
AUTOS ONLY AUTOS ONLY Per accident
$
UMBRELLA LIAB. ._ �. OCCUR .�.��.�.._EACH QCCtJRRENCE _........�. $ _....._.._._...._____...___
EXCESS LIAB CLAIMS-MADE AGGREGATE $
_ DED I I RETENTION$ $
WORKERS COMPENSATION PER OTH.
AND EMPLOYERS'LIABILITY Y/N STATUTE FIR
ANY PROPRIE'TORIPARTNER/EXECUTIVE ❑OFFICER/MEMBER EXCLUDED? 111 A E.L.EACH ACCIDENT $ 'EXCLUDED?
(Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $
If yes,describe under
DESCRIPTION OF OPERATIONS below F.L.DISEASE-POLICY LIMIT $
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) W
City of Oshkosh,its officers,council members,agents,its employees or authorized volunteers are listed as additional insured on a primary and
non-contributory basis.
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN
City of Oshkosh,its officers,council members,agents,its employees or ACCORDANCE WITH THE POLICY PROVISIONS.
PO Box 1130
AUTHORIZED REPRESENTATIVE
Oshkosh WI 54903-1130 s ,
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