HomeMy WebLinkAboutEncroachment Agreement CGR Holding LLC 14-1334-1200 8724537 :... x.
Tx:4540551
DOC# 1856537
NATALIE STROHMEYER
Encroachment Agreement REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
Document Number RECORDED ON:
07/06/2021 03:25 PM
RECORDING FEE: 30.00
• PAGES: 8
RECEIVED
JUL 152021
Recording Area �`k ll'IRL Titg OFFICE
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,WI 54903-1130
91413341200
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
May 17, 2021 1
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ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh(City),and CGR Holdings,LLC(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.
A. The Owner is the fee owner of Parcel Number 91413341200, which is the property
commonly known as 2836 Fond du Lac Road,Oshkosh(Property).The Property currently is
used as a bar and grill.
B. The Owner's Property is described as follows:
Lot Two (2)in STONEY BEACH WEST,in the Fourteenth Ward,
City of Oshkosh, Winnebago County, Wisconsin
C. The Property contains a twenty(20)foot drainage Easement benefitting the City of Oshkosh
along its north boundary. The drainage Easement was created with the filing of the plat for
Stoney Beach West subdivision with the Winnebago County Register of Deeds on October
28,2004 as Document Number 1333004. A copy of the plat is attached as Exhibit A.
D. The Owner seeks permission from the City to allow it to Encroach upon the City's Easement
as part of its reconstruction of its parking lot. The Encroachment area is described as the
North twenty(20)feet of the Owner's Property that is on and over the City's Easement.
E. The Encroachment would include parts of a number of Owner's parking stalls,fencing,and
landscape. A map of the Encroachment area and the improvements is attached hereto as
Exhibit B.
F. The City grants permission to the Owner to Encroach into the City's drainage easement
provided: 1) the Encroachment constructed is materially the same as the Encroachment
requested; 2) it is clear that the City's Easement rights continue to supersede the Owner's
Encroachment privilege; and 3) this Encroachment is subject to the terms and conditions
identified or referenced in this Agreement.
G. The Owner understands that the purpose of the Easement is for storm water drainage. As a
result,it will not be unexpected for water to be present around and over the Encroachments.
The City will not be responsible or liable for any adverse effect that storm water may have on
the Encroachment.
H. 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.
I. The Owner agrees that it is solely responsible for the installation and maintenance of the
Encroachment, including the parking areas, landscaping, and fencing. The Owner further
agrees that it is solely responsible for any and all personal and property damage caused by the
existence of the Encroachment.
May 17, 2021 2
J. Snow, ice, debris, or any materials shall not be moved on to or allowed to remain in the
Encroachment area or on to any part of the City's Easement.
K. The Owner 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 Owner.
L. The Owner acknowledges that the City's storm water drainage facilities are subject to
ongoing operation,maintenance,repair,and replacement, as allowed by the Easement. To
that end:
1) The Owner is solely responsible for removing or otherwise protecting 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, removal, or repair of the Encroachment.
2) The Owner is solely responsible for protecting public 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 facilities
in the Easement is planned,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 to otherwise take actions to protect the
Encroachment (as opposed to the City protecting or 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 Owner
structure,improvement,feature,or landscaping within the City's Easement,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 facilities within the
Easement requires such removal.
7) The Owner shall be responsible for reinstalling/replacing/repairing the Encroachment
regardless of which party removed the Encroachment.The City shall be reimbursed
by the Owner for all costs and expenses related to removing or protecting the
Encroachment, or for removing vehicles or obstructions within the Easement.
M. Due to the nature of this Agreement in which a privilege and not a right is 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.
May 17, 2021 3
N. The City acknowledges the Owner's investment in the reconstructed parking lot, including
the parking lot improvements that comprise the Encroachment within the Easement property.
However,both parties acknowledge that at some point in the future,the City's lawful use of
the Easement may conflict with the Owner's use of the Encroachments. Such conflicts will
be resolved in favor of the City's use of the full Easement.However,except for emergencies,
the City agrees to consult with the Owner and in good faith assist with any approvals or
changes necessary to ensure the continued functioning of the Owner'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 Owner'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 fully
use the Easement.To that end,the following issues may in the future adversely affect,limit,
or terminate the Owner's use of the Encroachment:
1) The City's use of the drainage Easement prohibits the continued location of the
Encroachments;
2) The City determines that the Encroachment adversely affects its lawful use of 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 lawful use of the
Easement,or any other local, state or federal law prohibit the continued location of
the encroachment;
5) The Owner fails to properly maintain, repair, or replace the Encroachment; The
Owner fails to provide the City with annual written proof that the Encroachments are
covered by the required insurance; or,
6) Any other lawful reason or circumstance,including without limitation a breach of a
term of this Agreement.
O. In the event that the Owner fails or refuses to make changes or remove its Encroachment as
described in this Agreement, the City may remove and dispose of Encroachment at the
Owner's expense.
P. 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, including the removal and/or
reconfiguration of 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.
Q. Both parties understand and agree that accidents and incidents related to the City's Easement,
or the City's lawful use of the 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
May17, 2021 4
Citymay be required, obligated, and adjudged by a court of competent jurisdiction to pay.
This obligation will be after a final judgment or award (after appeals), for any dispute or
action related to the Encroachment, and to the extent cause by the Encroachment. This
indemnification is broad,and includes 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.
R. At all times that the parking areas, landscaping, and fence, and any other part of the
Encroachment is located in the Easement, the Owner's liability insurance shall cover all
potential liabilities related to the Encroachments. 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 encroachment 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 policy for claims,liabilities,and damages related to the Encroachment.The Owner shall
annually provide the City with proof of insurance for the Encroachment.
S. The Owner's responsibilities and liabilities pursuant to this Agreement extend to other
persons, contractors, and agents performing work on Owner's behalf related to the
Encroachment.
T. This Agreement is solely for the benefit of the two parties to this Agreement, and it is not
intended to benefit any third party.
U. 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.
V. 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.
W. This Encroachment Agreement shall inure to the benefit of,and be binding upon,these two
parties. To the extent that the Owner rents or leases the Property, the Owner shall remain
responsible for its obligations described in this Agreement even though the actions are taken
by tenants or are related to any tenancy.
X. This Agreement may be recorded with the Winnebago County land records solely to ensure
notification that no property interests have been or will be transferred.This Agreement shall
expire upon the Owner's 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 of revocation of this Agreement and remove the
May 17, 2021 5
Encroachment at the expense of the Owner or other person the City deems responsible for the
continued existence of the Encroachment.
Dated:
CGR GS,LLC
(DAB/eZ-. cz3 MAvItt 44-4. 1ii,k7crr 4_
(print name) (title)
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )Personally came before me this 2.t day of 2021,the above-named Y11e.\.R �, �`-rro me
known to be the person who executed the foregoing document and acknowledged the sam
e. ••••,.•'•`� p,GAIL ,/,'''•,,''
.L9y<9
Notary Pu&6fLL
State of Wisconsi �O Tq,Q
U.�
,
My Commission expires: t '''( (2,'i. , +,
N.A "BL1O
•
CITY OF OSHKOSH -", WISC°
By: An
M k A. Rohloff, City Manager Pamela R. Ubrig, City lerk
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally came before me this 2Si day of J WIC ,2021,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-foregoing -_
instrument as such officers as the deed of said corporation,by its authority. _
ota ublic, e of Wisconsin
My Commission expires: 15/2023
May17, 2021 6
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