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HomeMy WebLinkAboutEncroachment Agreement 556 West 5th Avenue I 111111 I I 8785486 Tx:4588373 Encroachment Agreement DOC# 1874237 NATALIE STROHMEYER Document Number REGISTER OF DEEDS WINNEBAGO COUNTY, WI RECORDED ON: 01/26/2022 10:54 AM RECORDING FEE: 30.00..._.. R3€- VVD FEB 0 7 2022 CITY CLERK'S OFFICE Recording Area Name and Return Address City Attorney's Office C p PO Box 1130 07)" Oshkosh,WI 5 4903-1130 90600250000 Parcel Identification Number CITY OF OSHKOSH AND PROPERTY OWNER This document drafted by: David J.Praska,Deputy City Attorney City of Oshkosh,Wisconsin C , 1 December 15, 2021 1 i S REVOCABLE ENCROACHMENT AGREEMENT This Agreement is between the City of Oshkosh ("City"), and Oshkosh Holdings, LLC ("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 556 West 5th Avenue which is more particularly described as follows: Lots 3, 13, 14, and 15 of Block 95, in the plat of the ORIGINAL THIRD WARD,in the Sixth Ward, City of Oshkosh, Winnebago County, Wisconsin, excepting therefrom the East 8 feet of said Lot 15. B. The Property's West boundary adjoins a public right-of-way known as State Highway No.44 / Ohio Street, which is used for various public utilities, public sidewalks, and a public vehicular way.This is a State highway for which the City currently is responsible for right of way maintenance and permittingy,all of which has been obtained from the State Department of Transportation. The City therefore has the authority to enter into this Agreement. C. The previous owner of the Property was subject to two Revocable Occupancy Permits allowing an awning and a sign to encroach or extend into the public right of way. These Revocable Occupancy Permits expired by their own terms upon the transfer of ownership of the Property. D. Owner, who is more specifically the new Owner of the Property, seeks to keep the awning and sign as they exist and as they currently encroach into the Ohio Street right-of-way. E. No structure or object is allowed to encroach into a public right-of-way without the City's permission. The awning and sign (collectively, Encroachment) Encroach into the public right-of-way and therefore require the City's permission to remain in place. F. The awning will extend no more than two feet, six inches (2' 6")from the building façade and into the right-of-way. The awning will be no less than eight feet (8'0") above the sidewalk. A map of the Encroaching Awnings are attached as Exhibit A. G. The sign will extend no more than four feet, zero inches (4' 0")into the right-of-way. The sign is attached to a free standing pole located on the Property. The sign will be no less than eight feet (8'0") above the sidewalk. A map of the Encroaching Awnings are attached as Exhibit A. H. The City will allow the placement of the awning and sign subject to the terms of this Encroachment Agreement. A material component of this Agreement is the explicit understanding that the City's permission allowing the Encroachment does not create or give the Owner any property rights and instead is personal to the Owner and may be changed or revoked without compensation by the City. I. The Encroachment will be allowed based on the existing design and specifications. The City notes that the awning is not lighted and shall remain unlighted. December 15, 2021 2 J. 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. K. Although located in a 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,in addition to being responsible for the structure of the Encroachments,the Owner is also responsible for addressing issues related to water or other substances that may drip from the Encroachment and on to the sidewalk or other parts of the right-of-way. L. 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. In other words,the City's approval or permission does not shift any responsibility for the Encroachment to the City, and the Encroachment always remains the responsibility and liability of the Owner. M. The Owner acknowledges and agrees that public utilities and facilities, including the street and sidewalk, as well as landscaping,lighting, and signage 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 by either the City or the State Department of Transportation. Neither the City nor the State will 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, lighting, and signage, 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 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. 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 December 15, 2021 3 maintenance,repairs, and/or replacement of public utilities and facilities within the right-of-way requires such removal. 7. The Owner shall be responsible, at its expense, 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 that objective. N. 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, limited accessibility, or damage, in whole or in part,whether temporary or permanent, of the Encroachment O. The City is allowed to revoke its permission for the Encroachment for any of the following reasons: 1. 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 and/or the State; 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; and, 7. The Wisconsin Department of Transportation rules,guidelines,or decisions require that the Encroachment be removed. P. 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 dispose of the Encroachment at Owner's expense. December 15, 2021 4 • Q. 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,holds harmless,and indemnifies 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, to the extent caused by 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 permissions and privileges granted by the City under this Agreement. R. 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. S. The Encroachment 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. 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. 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. T. 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. U. 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 a party. 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. V. 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. W. 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. December 15, 2021 5 X. 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 relating to the Encroachment in the future. Y. 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. Z. Although the Encroachment permission does not attach to or run with the land, it may be recorded with the Register of Deeds only for notice purposes. PROPERTY 0 OSHKOSH H S, C By: Timothy J Murray, e ember,M er STATE OF WISCONSIN ) ss. WINNEBAGO COUNTY ) Tart ilu.r . 2-0 22- Personally came before me this I d day of Heeem the above-named Timothy 7 Murray,to me known to be the person who executed the foregoing document and acknowled ed the ame. Notary Public,State of Wiscon m My Commission expires: i i/!S'a 00;1P 1I I 17i,r,,,,• . ` 4 CITY OF OSHKOSH =` `` : By; - And: ,', fJ) , i) ,AM `� - ` 0 - Mar A.Rohloff, City Manager '- -, -' . City Clerk • ; / •`' STATE OF WISCONSIN ) 0 a )ss. ., WINNEBAGO COUNTY ) -1a �� 2 o2a Personally came before me this 1-1 day of ertttii'f,202T,the above-named Mark A.Rohloff,City,Ma Egier;,a d ess; L c k'aenel rig;City Clerk,of the City of Oshkosh,a municipal corporation,to me known to be the persons t3v o executed,4Ie"',; foregoing instrument,and to me known to be such officers of said corporation,and acknowledged that they exe et9 tht f6ragcl 'f, instrument as such officers as the deed of said corporation,by its autho 'ty. p,' •.k '`") r I P1 Notary ublic,State of Wisco in " © ' My Commission expires: j I i!'S .fr.,7' �i, •. .) ,AS`` December 15, 2021 6 • • �' z_ ter.; 1 -Y -� 's r.�• .7,--s;' j ; - .ice 4 ;. : - // � Tr 1, • us _ s ♦ -� ,yam''a "."` -'��r -- t 1-- - I- _ •e•. .1,- .• fdd '�-' ry i fJ I sy- _ 1 • C' ��=cam_ ~ • -'. F t ..t$ �.. fft1L t £ _ J�%�� '-� a j3- . • l ill. 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