HomeMy WebLinkAbout216 North Main StreetDocId:8880385
Encroachment Agreement Tx:4657810
DOC# 1898052
Document Number NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
01/18/2023 11:07 AM
RECORDING FEE: 30.00
PAGES: 7
CITY OF OSHKOSH
02
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh. WI 54903-1130
90200180000
Parcel Identification Number
December 20, 2022
REVOCABLE ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh ("City"), and WISCO RENTS, 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 216 North Main Street, which
is more particularly described as follows:
WEST 20 FEET OF LOT 12 & ALL OF LOT 23, BLOCK 22, L M MILLERS 1ST
ADDITION
B. The Property's West boundary adjoins a public right-of-way used for various public utilities,
public sidewalks, and a public vehicular way commonly known as North Main Street, The
City currently owns and/or is responsible for maintenance of the right-of-way for North Main
Street, and therefore has the authority to enter into this Agreement.
C. The Owner proposes to install a projecting sign that would be attached to the building fagade
and will project into the right-of-way of North Main Street. These projecting sign will
extend no more than four (4) feet from the fagade and into the right-of-way of North Main
Street. The bottom of the projecting sign will be approximately eleven (11) feet and eight (8)
inches above the sidewalk. Maps of the Encroaching projecting sign are attached as Exhibit
A.
D. No structure or object is allowed to encroach into a public right-of-way without the City's
permission. The proposed projecting sign encroaches into the public right-of-way and
therefore require the City's permission.
E. The City has reviewed the Owner request to allow a projecting sign to encroach into the
public right-of-way. The City will allow the placement of the projecting sign 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 the
Owner or any unit owner any property right and instead is personal to the Owner and any
others with a current interest and is completely revocable by the City.
F. This Encroachment consisting of the projecting sign will be allowed to project into the right-
of-way at 216 North Main Street, provided that this Encroachment is materially similar to the
design and specifications submitted for the City's approval, with the exception that the sign
shall not be lighted.
G. 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.
H. Despite the fact that the projecting sign Encroachment will be within the public right-of-way,
the projecting sign 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.
December 20. 2022 2
I. 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, and that it always remains the responsibility and liability of the
Owner.
J. 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 projecting sign shall be unlighted and not connected to electricity for any
purpose.
2. 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 right-of-way. The City will not be responsible for any
costs for the disruption, protection, or removal of the Encroachment.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. The Owner shall be responsible for reinstalling/reattaching the Encroachment
regardless of who removed the Encroachment.
9. The City shall be. reimbursed by the Owner for all costs and expenses related to
removing or protecting the Encroachment.
10. 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
for the sole purpose of removing or protecting the Encroachment and only to the
December 20, 2022 3
extent reasonably necessary to achieve those objectives.
K. 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
L. 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, with the foregoing determination at the sole discretion of the City;
2. The continued existence of the Encroachment would unreasonably limit the public
uses of the right-of-way, with such a determination at the sole 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
M. 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 projecting sign at Owner expense.
N. 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.
0. At all times during which the Encroachment extends into the right-of-way, the Owner
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
Dpromher 20. 2022 4
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.
P. The City's encroachment permission is personal to the Owner, is not intended to convey 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
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 216 North Main Street. Revocation of
permission for the Encroachments will also occur where the Owner changes its business
format or joins with another person or entity to lawfully govern the Condominium.
Q. The Owner's responsibilities and liabilities pursuant to this Agreement extend to other
persons, contractors, and agents performing work on Owner 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.
R. The Owner remains responsible for any actions taken by any of Owner's tenants, licensees,
invitees, 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 the
condominium governing rules, and any separate private agreement it may have with any
tenant or other person related to the Property which may relate to the Encroachment.
S. 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.
T. This Agreement is solely for the benefit of the parties to this Agreement, and it is not
intended to benefit any third parry or any successor in interest of the Property.
U. 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.
V. 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.
W. This Agreement shall not attach to or run with the land, but may be recorded with the
Register of Deeds only for information purposes.
X. This Agreement shall become effective upon the last date a party signs below.
December 20, 2022 5
VvISCO RENTS, LLC.
By; (Y�' t4w
Nicholas Malesvich, Managing Member
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY )
the perso
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Personally came before me this_ day oflu^ 202A the above -named i + , to me.kriQwn to be ~ •.,
who executed the foregoing document and acknowledged the same.
STATE OF WISCONSIN
WINNEBAGO COUNTY
Personally came before me this
the person who executed the foregoing d
City of Oshkosh
eJ°a g
Notary Public, State of Wisconsin ` t �f / d) ; ,
My Commission expires: 4
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2022, the above -named , to me known to be
acknowledged the
Notary Public, State of Wisconsin
My Commission expires:
By: And; NM24 r<j bnaoen
M rk A. Rohloff, City Manager Jes ' L. Balcom, City Clerk
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
3
Personally came before me this j i th,_ day of , 202K the above -named Mark A. Rohloff, City Manager,
and Jessi L. Balcom, City Clerk, of the City of Oshkosh, a municipal corporation, to me known to be the persons who exAl ill a •t' 'e"
foregoing instrument, and to me known to be such officers of said corporation, and acknowledged that they executed the foregpjnp
instrument as such officers as the deed of said corporation, by its authority.AV
,
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Notary Public, State of Wisconsin
My Commission expires: j 2.3
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