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HomeMy WebLinkAbout2024-10-15 Encroachment - 1606 OregonEncroachment Agreement Document Number CITY OF OSHKOSH F.11 z 111 PROPERTY OWNER This document drafted by: David J. Praska, Deputy City Attorney City of Oshkosh, Wisconsin DOC# 1932074 NATALIE STROHMEYER REGISTER OF DEEDS WINNEBAGO COUNTY, WI RECORDED ON: 10/15/2024 02:52 PM RECORDING FEE: 30.00 PAGES: 7 Name and Return Address City Attorney's Office PO Box 1130 Oshkosh. WI 54903-11 90305350000 Parcel Identification Number September 27, 2024 REVOCABLE ENCROACHMENT AGREEMENT This Agreement is between the City of Oshkosh ("City"), and 1606 Larson Properties 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 1606 Oregon Street, which is more particularly described as follows: The North %2 of that portion of Lots One (1), Two (2) and Three (3) of Block Forty- four (44) in the Plat of the ORIGINAL THIRD WARD, in the Ninth Ward, City of Oshkosh, Winnebago Cunty, Wisconsin, per Leach's Map of 1893 and now in the Third Ward of said City, lying South of a line drawn through said Lots and Fifty- seven (57) feet south of the North Line of said Lots 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 Oregon Street. The City currently owns and/or is responsible for maintenance of the right-of-way for this section of Oregon Street and therefore has the authority to enter into this Agreement. C. The Owner proposes to replace/install one (1) awning that would be attached to the building facade and will project into the right-of-way of Oregon Street. The awning will extend no more than three (3) feet, four (4) inches from the facade and into the right-of-way of Oregon Street. The awning will be no less than ten (10) feet two (2) inches above the sidewalk. The Encroaching Awning is shown along with applicable measurements 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 awning encroaches into the public right-of-way and therefore require the City's permission. E. The City has reviewed the Owner's request to allow this Encroachment into the public right- of-way. The City will allow the placement of the awning 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 any property right and instead is personal to the Owner and is completely revocable by the City.. F. This Encroachment consisting of the awning will be allowed to project into the right-of-way at 1606 Oregon Street, provided that this Encroachment is materially similar to the design and specifications submitted for the City's approval as described in Exhibit A. 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, building code, and sidewalks. H. Despite the fact that the awning Encroachment will be within the public right-of-way, the awning Encroachment remains privately owned and the sole responsibility of the Owner. The Owner's responsibilities include installation, maintenance, and repair, as well as sole responsibility for any and all personal or property damage caused by the Encroachment. September 27, 2024 2 I. 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 and electrical facilities, located within the right-of-way are subject to maintenance, repair or replacement. To that end, 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. The City will not be responsible for any costs for the disruption or removal of the Encroachment. 2., The Owner is solely responsible for protecting public utilities and facilities, including landscaping and electrical facilities, 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 the 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 and at Owners cost, 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 shall be responsible for reinstalling/reattaching the Encroachment at their own cost 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. 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 for the sole purpose of removing or protecting the Encroachment and only to the 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 September 27, 2024 3 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 prohibition related to safety, practicality, legal, or other issues important to the public interest, all of which are at the sole discretion of the City; Ir 2. The Encroachment would unreasonably limit, harm, or impede the public and 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 the sidewalk, landscaping, light poles, electrical service, 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 Encroachment at the City's discretion and at the Owner's expense through a special charge for current services or other lawful method of charging and collecting costs.. 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 existence of 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. O: 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 September 27, 2024 4 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'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 1606 Oregon Street. 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.. Q. The Owner remains primarily responsible to the City for any actions taken by any of Owner's tenants,. licensees, invitees, contractors, consultants, agents, or service providers that are related to this Encroachment and this Agreement. The Owner also remains primarily responsible to the City for all aspects related to the Encroachment regardless of the terms of any separate private agreement it may have with any tenant or other person related to the Property which may relate to the Encroachment. R. 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 a project or the Encroachment. S. 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. T. 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. U. This Agreement shall incorporate and apply all immunities and limitations provided to and protecting municipalities within the Wisconsin Statutes and/or common law, regardless of whether a claim is based upon contract, tort; or other theory. V. This Agreement shall not attach to or run with the land, but may be recorded with the Register of Deeds only for purposes of its revocability and temporary status. W. This Agreement shall become effective upon the date of the last signature below. [Signature page to follow] September 27, 2024 5 1606 LARSON PROPERTIES 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. By: ccc Jus ' e Larson, Member STATE OF WISCONSIN ) ss. WINNEBAGO COUNTY ) Personally came before me this day of YJQr , 2024, the above -named Justine Larson, to me known to be the person who executed the foregoing document and acknowledged the same. CITY OF OSHKOSH By: M4 A. Rohloff, City Manager STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY ) o — otary Public, State of Wisconsin = -- My Commission expires: nTt„��,� ,off , 13LIG , co OF WISG��.�°. And: Diane . Bartlett, City Clerk Personally came before me this r'" day of DOD , 2024, 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. OvW,W AouVkU Notary P blic, State of Wisconsin hh My Commission expires: '3- -3 1 ` September 27, 2024 6 * BUILDING FACE RESTS AT A ZERO SETBACK DISTANCE FROM THE PUBLIC RIGHT-OF-WAY LINE 4.5" Z BRACKET BASE PLATE, ANCHOR 4FT C-C, 41611 3' 4" DEPTH END TO END 10'1%2' 1606 OREGON STREET EXHIBIT A (1 of 1) AWNING& STEPS ENCROACHMENT 25' 5 %2" u TACK SCREW CONNECTION TAB TO AWNING FRAME L R/W LINE OREGON STREET EAST VIEW OREGON STREET RIGHT-OF-WAY ENCROACHMENTS