HomeMy WebLinkAbout2024-06-21 Encroachment - 300 State Street - RecordedEncroachment Agreement
CITY OF OSHKOSH
F."IMAD
19 9 M t14 MWARI 0 S
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
DOC# 1924999
NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
06/21/2024 12:38 PM
RECORDING FEE: 30.00
PAGES: 9
Recording Area
Name and Return Address
City Attomey's Office
PO Box 1130
Oshkosh. W1 54903-1130 (IMAG
90200640000
Parcel Identification Number
June 10, 2024 1
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh (City) and Priscilla D. Kieckhafer, Trustee
of the Harry E. and Priscilla D. Kieckhafer Revocable Trust of 1991 u/a/d December 10, 1991
(Kieckhafer Rev Trust). The parties enter into this agreement for $1.00 and other good and
valuable consideration as described in this Agreement, the receipt of which is acknowledged.
A. Kieckhafer Rev Trust is the fee owner of Tax Parcel Number 90200640000 (Property),
which is commonly known as 300 State Street, Oshkosh. The Property is more particularly
described as:
See Exhibit A
B. The Property is a multi -use commercial building in downtown Oshkosh at the northeast
corner of State Street and Waugoo Avenue. Like many buildings downtown along State
Street, it was constructed at the lot lines with no zoning set -backs. This condition results
in this request for approval of an Encroachment into the Waugoo Avenue right-of-way.
C. The Property has a door for ingress and egress directly into the sidewalk within the Waugoo
Avenue right-of-way. The difference in elevation between the doorway and the sidewalk
has resulted in the need for one step to allow the safe use of the doorway. The Property
owner has historically installed and maintained the step, which extends into the City's
right-of-way. Neither the current Property owner, nor the current City representatives, are
aware of the exact origin of the step.
D. The City is undertaking a public works project that includes replacing the sidewalk along
a section of Waugoo Avenue, including the sidewalk upon which the step is constructed,
along the Property. The step is in poor condition. Even though the step is not the City's
nor part of its right-of-way facilities, the City as an accommodation has agreed to replace
the step as part of this public works project. The step will be replaced in a similar or
substantially the same location and dimension as has existed for the recent period of time.
This accommodation by the City is based on the terms of this Agreement. Among the other
conditions identified herein, the City wishes to clarify the following:
1. The City is replacing the step in the same location and the same dimensions as have
existed for some time, and using what the City believes are the same materials.
Details of the step are attached as Exhibit B. The City's actions are an
accommodation, and the City's involvement with the step should not be interpreted
as the City taking ownership, responsibility, or liability for the step, including
personal or property damages.
2. The City's replacement of the existing step in the same location and with the same
dimensions as part of this public works project should not be interpreted as an
acknowledgment by the City that the step is compliant with any code, statute, or
safety obligations. It will always remain the obligation of the Property owner to
address such concerns.
3. The Property owner is responsible for maintaining the step, including its physical
condition, as well as snow and ice removal.
June 10, 2024 2
E. The City grants permission to Kieckhafer Rev Trust for the continued Encroachment into
the City's public right-of-way for Waugoo Avenue provided the Encroachment does not
extend any further into the right-of-way than requested.
F. 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.
G. Kieckhafer Rev Trust is solely responsible for 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, safety, and compliance of the Encroachment. The
Encroachment is and always remains the sole responsibility and liability of Kieckhafer Rev
Trust.
H. Kieckhafer Rev Trust acknowledges and agrees that City's public utilities and public
facilities within the right-of-way are subject to ongoing operation, maintenance, repair, and
replacement, as well as the potential installation of new or additional facilities the City
deems necessary within the right-of-way. To that end,
1. The City understands that the Encroachment is required for the Property owner to
provide access through this particular door. Therefore, the City will provide
Kieckhafer Rev Trust with reasonable advance notice of any City repairs or
activities that affect the Encroachment area. In the case of an emergency affecting
the Encroachment Areas, the City may proceed to alleviate the emergency situation
without notice, but shall notify Kieckhafer Rev Trust as soon as practicable.
2. The City will cooperate and help coordinate any disruptions of access into
Kieckhafer Rev Trust facility through the Encroachment area. However,
Kieckhafer Rev Trust is responsible for costs and logistics related to removing or
otherwise protecting the Encroachment, or rerouting access as affected by any
public maintenance, repair, or replacement projects or activities within the
Encroachment area. The City will not be responsible for any costs related to the
disruption, removal, or repair of the Encroachment.
3. The parties agree to work together and coordinate actions necessary to facilitate.
and/or accommodate any planned construction, maintenance, repair, or
replacement of public utilities or Encroachment within the timeframe of the
anticipated work.
I. Due to the nature of the Encroachment and of this Agreement, Kieckhafer Rev Trust 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.
J. The City acknowledges Kieckhafer Rev Trust's need for the Encroachment to provide a
less costly alternative for building ingress and egress. Both parties acknowledge that at
some point in the future, certain local, state, or federal laws, policies, or procedures related
June 10, 2024 3
to the use of the public right-of-way and/or the step Encroachment may be in conflict. Such
conflicts or anticipated conflicts will likely have a significant lead time to allow a
negotiated resolution to accommodate each party's interests. The parties agree to consult
with each other in good faith and assist with any approvals or changes necessary. To that
end, the following issues may in the future adversely affect, or limit, Kieckhafer Rev
Trust's use of the Encroachment Areas:
1. The City determines that the Encroachment adversely affects the use and
functioning of the public right-of-way;
2. Additional encroachments are added, or the existing Encroachment is materially
expanded, without permission from the City;
Local, state, or federal rules, laws, or guidelines relating to any public facility
located in the right-of-way, or any other local, state, or federal law prohibit the
continued location of the Encroachment;
4. Kieckhafer Rev Trust fails to properly maintain, repair, or replace the
Encroachment; or,
5. Any other lawful reason or circumstance.
K. Kieckhafer Rev Trust 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. Kieckhafer Rev Trust shall
protect and hold the City of Oshkosh harmless and indemnify against all actions, claims
and demands of any kind or character whatsoever which are related to the Encroachment,
except to the extent caused by the City's negligence.
L. Kieckhafer Rev Trust's responsibilities and liabilities pursuant to this Agreement extend
to other persons, contractors, and agents performing work on Kieckhafer Rev Trust's
behalf that are related to the Encroachment.
M. This Agreement is solely for the benefit of the City and Kieckhafer Rev Trust, and it is not
intended to benefit any third party.
N. The decision to enforce or not enforce, as well as the timing of enforcement, shall be at the
discretion of each party and such decision shall not act as a waiver of any rights to exercise
any right relating to the Encroachment in the future.
O. The City benefits from certain municipal immunities and limitations of liability. 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.
P. This Encroachment Agreement shall inure to the benefit of, and be binding upon, these two
parties. To the extent that Kieckhafer Rev Trust rents or leases the Property, Kieckhafer
Rev Trust shall remain responsible for its obligations described in this Agreement even
though the actions are taken by tenants or are related to any tenancy. Kieckhafer Rev Trust
June 10, 2024 4
may have agreements with tenants or other to shift costs and responsibilities between them.
The City is not bound by the terms or cost or liability shifting within those agreements.
Q. This Agreement may be recorded with the Winnebago County land records for information
purposes only. The action of recording this Agreement shall not imply the conveyance of
any interests or rights in property. This Agreement shall expire upon the conveyance of
any interest in that part of the Property that benefits from the Encroachment Areas. In the
event that part of the Property benefitting from the Encroachment Areas is divided and
conveyed to others, then any future owner of that new parcel or condominium unit shall be
required to obtain their own Encroachment Agreement with the City. The City's potential
encroachment agreements with future owners of the Property or new parcel 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.
[SIGNATURE PAGE FOLLOWS]
June 10, 2024 5
Dated this- I day of J u,M-, , 2024.
HARRY E. AND PRISCILLA D. KIECKHAFER REVOCABLE TRUST OF 1991 u/a/d
DECEMBER 10,1991
By:r.
Priscilla D. Kieckhafer, T stee
STATE OF WISCONSIN )
ss. ����•° �p,GAI�,�
WINNEBAGO COUNTY
, �OTJ ' �'
Personally came before me this day of �Ju,��. , 2024, the aiovi-named—
Priscilla D. Kieckhafer, to me known to be the persons who executed the foregoing &a &4 enhjyL �G
acknowledged the same.
CITY OF OSHKOSH
By: �-
M r k A. Rohloff, City Manager
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY )
T�otary Pu%lic, State of Wisconsin
My Commission
4iane UMBartlett
Personally came before me this 19 day of CJ lA r�Z , 2024, the above -named
Mark A. Rohloff, City Manager, and Diane Bartlett, City Clerk, of the City of Oshkosh, a
municipal corporation, to me known to be the persons who executed the foregoing instrument, and y ,
to me known to be such officers of said corporation, and acknowledged that they executeo,:ti}e:,,a.',..
foregoing instrument as such officers as the deed of said corporation, by its authority. �; ; � ':. °°•r•: , :',� j°<,';
�41j f t ' L
Notary Public, State of Wisconsin
My Commission expires:
'Ap•aBePiVE�'
June 10, 2024 6
Encroachment Agreement for Step
Parcel 02-0064-0000
Owner: Harry E. Kieckhafer; Priscilla Kieckhafer
Address: 300 State Street
Being a part of the Northeast 1/4 of the Southwest 1/4 of Section 24, Township 18 North, Range
16 East, Second Ward, City of Oshkosh, Winnebago County, Wisconsin, bounded and described
as follows:
Commencing at the northeast point of intersection of the easterly line of State Street and northerly
line of Waugoo Avenue; thence 46.73 feet southeasterly along the said northerly line of Waugoo
Avenue, the true point of beginning; thence 7.50 feet southeasterly along the said northerly line
of Waugoo Avenue; thence southwesterly 1.00 feet perpendicular to the said northerly line of
Waugoo Avenue; thence 7.50 feet northwesterly parallel to the said northerly line of Waugoo
Avenue; thence northeasterly in a straight line to a point on said northerly line of Waugoo
Avenue, the true point of beginning:
Said easement contains 7.50 square feet or 0.000172 acres more or less.
Exhibit A (1 of 1)
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CITY OF OSHKOSH
ENGINEERING DMSION
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SCALE: (IN FEET)
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ENCROACHMENT AGREEMENT MAP
300. State Street
Exhibit B (1 of 2)
CITY OF OSHKOSH
ENGINEERING DMSION
FILE NAME:
302 State St Encroachment
McL1*140C
0 0.5 1
1 INCH - 1 FEET
711
PROPOSED STEP DIMENSIONS
300 State Street
III
GRAPHIC
SCALE: (IN FEET)
Exhibit B (2 of