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HomeMy WebLinkAbout2023-10-12 Encroachment Agreement - 701 Ohio StEncroachment Agreement Document Number CITY OF OSHKOSH MED PROPERTY OWNER This document drafted by: David J. Praska, Deputy City Attorney City of Oshkosh, Wisconsin DOC# 1911849 NATALIE STROHMEYER REGISTER OF DEEDS WINNEBAGO COUNTY, WI RECORDED ON: 10/12/2023 02:09 PM RECORDING FEE: 30.00 PAGES: 8 Recording Area Name and Return Address City Attorney's Office PO Box 1130 90900310100 Parcel Identification Number C., August 28, 2023 M REVOCABLE ENCROACHMENT AGREEMENT This Agreement is between the City of Oshkosh ("City"), and Seven and O, 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 with a commercial building commonly known as 701 Ohio Street, which is more particularly described as follows: Legal Description Attached as Exhibit A B. The Property's East and North boundaries adjoin the City's public right-of-way used for various public purposes, including utilities, public sidewalks, and vehicular ways. Ohio Street is along the East boundary, and West 7' Avenue is along the North boundary. The City therefore has the authority to enter into this Agreement. C. The Owner proposes to install a sign on the building's fagade that projects into the Ohio Street right-of-way. The sign will project into the Ohio Street right -of --way no more than. thirteen (13) inches. The bottom of the projecting sign will be no less than eleven (11) feet, and after installation will end up being approximately thirteen (13) feet above the sidewalk. A map of the Encroaching sign is attached as Exhibit B. D. The building on the Property also has existing awnings on second floor windows that also project into the right-of-way of Oregon Street and West 7t' Avenue. The awnings were installed by someone in the past without an encroachment agreement and are therefore included in this Agreement to clarify their status. E. No structure or object is allowed to encroach into a public right-of-way without the City's permission. The proposed sign and the existing awnings encroach into the public right-of- way and therefore require the City's permission to be installed and/or remain in place. F. The City will allow the installation of the sign and the continued presence of the awnings 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 to their presence within the right-of-way, and instead is personal to the Owner and any others with a current interest in the Property. The Encroachment permission is completely revocable by the City at the City's discretion. G. This Encroachments consisting of the sign and the awnings will be allowed to project into the Oregon Street and West 7`h Avenue right-of-way provided that the sign installed is materially similar to the design and specifications submitted for the City's approval, and provided the awnings remain materially similar to those that currently exist. H. The City's permission for this Encroachment is contingent upon the initial, and continuing, compliance with this Agreement, and all applicable local, state, and federal codes and rules. Applicable City Ordinances include building code, zoning, electrical, signs, streets, and sidewalks. I. All Encroachments into the public right-of-way remain privately owned and the sole responsibility of the Owner. Therefore, the Owner is solely, responsible for the installation, maintenance, and repair of the Encroachments themselves, and also solely responsible for August 28, 2023 2 any and all personal or property damage caused by the Encroachment. J. The City's permission that allows the Encroachments do not mean that the City guarantees the short and/or long-term fitness, stability, or safety of the Encroachments and their location. They always remain the sole responsibility of Owner. K. The Owner acknowledges and agrees that public utilities and facilities, including the street and sidewalk, as well as landscaping, electrical and public utilities, located within the right- of-way are subject to maintenance, repair or replacement. To that end, 1. The Encroachments shall not be lighted and shall not be 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, removal, or reinstallation of the Encroachments. 3. The Owner is solely responsible for protecting all property, public utilities, facilities, and amenities, as well as anyone using the public right-of-way, from adverse effects related to the existence of the Encroachments. 4. The City agrees to make reasonable efforts to notify the Owner of any work to occur within the right-of-way that may affect the Encroachments in advance. 5. If the Owner elects to remove or otherwise take actions to protect the Encroachments from work the City will be performing within the right-of-way, 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 Encroachments, or any structure or hardware to which the Encroachments are attached, related to any City work in the right-of-way. 7. The City has no obligation to remove, but shall be allowed to remove, at its sole discretion, the Encroachments in the event that work the City is undertaking requires such removal. 8. The Owner shall be responsible for reinstalling/reattaching the Encroachment after receiving permission from the City, regardless of who removed the Encroachment. 9. The City shall be reimbursed by the Owner for all costs and expenses related to any City action involving removing or protecting the Encroachments. 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 make contact with, enter, access, and alter the Owner's Property at the location of or adjoining the Encroachment areas for the sole purpose of removing or protecting the .Encroachments and only to the extent reasonably necessary to achieve those objectives. August 28, 2023 L. Due to the revocable nature of the City's permission and the lack of any property rights granted through the allowance of the Encroachments, 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 Encroachments. i M. The City is allowed to revoke its permission for the Encroachment for any of the following reasons: 1. The public uses of right-of-way as described by law and/or by policy choices of the Common Council prevents 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 amenities or 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 Encroachments incorporate lighting or any other electrical connections; 7. The Owner fails to provide the City with annual written proof that the Encroachment is covered by the required insurance; 8. Any other lawful reason. N. In the event that Owner fails or refuses to remove the Encroachments that has either been revoked, expired, or has otherwise fallen into poor condition or disrepair, the City may remove and dispose of the sign and or awnings at Owner expense. O. 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. P. 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 August 28, 2023 4 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. Q. 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 701 Oregon 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 Property. R. 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. S. 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. T. 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. 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 City's sole discretion and shall not act as a waiver of any rights, claims, or defenses relating to the Encroachment. W. 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. X. This Agreement shall not attach to or run with the land, but may be recorded with the Register of Deeds only for information purposes. Y. This Agreement -shall become effective upon the last date a party signs below. August 28, 2023 5 SEVEN AND O, LLC. I am signing this document based upon the contents of a Statement of Authority filed with the State of Wisconsin Department of Financial Institutions pursuant to Wis. Stat. 183.0302, which authorizes my signature to bind this Limited Liability Company without restrictions applicable to this document. Alternatively, this Limited Liability Company has not filed a Statement of Authority, but I explicitly assert that I do have the authority to bind the Limited Liability Company to the terms of this document without limitation or restriction. Christopher Burns, Managing Member STATE OF WISCONSIN By: (priit•ttle) (title) ) ss. WINNEBAGO COUNTY ) .Personally came before me this �:) day oft;, 2023, the above -named Christopher Burns, to me known to be the person who executed the foregoing document and ackn ledged the 9 e. 2 C� Notary Public, StatdLbf Wisco My Commission expires: �J \\\\`o\uJ CITY OF OSHKOSH �` G ' B _ ��~� An N 0 tg19: Mar A. Rohloff, City Manager Diane . Bartlett, City Clerk A AUQL® . •, STATE OF WISCONSIN ) '�i�Q •Gj�=�`��` WINNEBAGO COUNTY ) Personally came before me this q�h day of r 2023, the above -named Mark A. Rohloff, City Manager, and Diane M. Bartlett, 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. 11DRAS ' C'S,� % Notary Pu lic, State of Vlisconsn �® _ m •�0.� A R y. O My Commission expires: Ro "GPUBO OF August 28, 2023 ADDENDUM A That part of Lot Twelve (12) and of the East 1/2 of Lot Eleven (11) of Block Fifty-one (51) In Plat of the ORIGINAL THIRD WARD, in the Ninth Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894, described as follows, viz: - Commencing at the Southeast comer of said Lot Twelve (12); thence North, along the East fine of said Lot Twelve (12j Sixty-four (64) feet and three (3) Inches, the place of beginning; thence Westerly to a point on the West line of the East 1/2 of said Lot Eleven (11) that is Sixty-four (64) feet and Seven (7) Inches North of the South line of said Lot Eleven (11): thence North, along the West line of the East 1/2 of said Lot Eleven (11), to the North line of said Lot Eleven (11); thence East, along the North line of said Lots Eleven (11) and Twelve (12), to the Northeast comer of said Lot Twelve (12): thence South, along the East line of said Lot Twelve (12), Twenty-five (26) feet and Nine (9) Inches, more or less, to the place of beginning. EXHIBIT A (1 of 1) I r EXHIBIT B (1 of 1) •a 4w 0