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HomeMy WebLinkAbout2024-10-25 Encroachment - 404 N. MainEncroachment Agreement Document Number CITY OF OSHKOSH "MIA PROPERTY OWNER This document drafted by: David J. Praska, Deputy City Attorney City of Oshkosh, Wisconsin DOC# 1932865 NATALIE STROHMEYE REGISTER OF DEEDS WINNEBAGO COUNTY, RECORDED ON: 10/25/2024 01:42 PM RECORDING FEE: 30.0 PAGES: 8 Name and Return Address City Attorney's Office PO Box 1130 90400790000 Parcel Identification Number July 22, 2024 REVOCABLE ENCROACHMENT AGREEMENT This Agreement is between the City of Oshkosh ("City"), and 404 N. Main Street, 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 404 North Main Street, which is more particularly described as follows: Lot One (1) of Block Forty (40) in the Fourth Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894. Lot Twenty (20) of Block Forty (40) in the Fourth Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894, excepting therefrom that portion of the North Two (2) feet thereof lying north of the North Wall of the First Wisconsin National Bank of Oshkosh. Lot Twenty-five (25) of Block Forty (40) in the Fourth Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894, excepting therefrom the South Eighteen (18) feet thereof. B. The Property's West boundary adjoins a public right-of-way known as North Main Street, and its South boundary adjoins a public right-of-way known as Washington Avenue. Both public rights -of -way are owned and operated by the City of Oshkosh, and are used for various public purposes, including utilities, sidewalks, and streets. The building's walls are located at the property line along the two rights -of -way. C. The Owner has installed two projecting signs that are attached to the exterior of the building. One sign extends into the North Main Street right-of-way, and the second sign extends into the Washington Avenue right-of-way. These projecting signs are the same structure, dimensions, and distance above the public sidewalk. Each sign will extend from the fagade no more than three (3) feet, two (2) inches into their respective rights -of -way. Each sign will also be at least nine (9) feet, six (6) inches above the sidewalk. A map and specifications of the projecting signs resulting in the Encroachment 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 projecting signs (Encroachment) Encroach into the public rights -of -way and therefore require the City's permission to remain and avoid an Order for Removal. E. The City has reviewed the Owner's. request to allow the Encroachments to continue their location in the public rights -of -way. The City will allow the placement of the Encroachments 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 lessee or occupant any property right related to the location of the Encroachment and instead is personal to the Owner and is completely revocable by the City. F. This Encroachment will be allowed to project into the rights -of -way adjoining 404 North Main Street, provided that this Encroachment is materially similar to the design, specifications, and locations that exist as of the date of this Agreement. July 22, 2024 2 G. The City's permission for this Encroachment is contingent upon the Owner's 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 Encroachment will be within the public right-of-way, the Encroachment remains privately owned and are the sole responsibility of the Owner. The Owner is solely responsible for the installation, maintenance, repair and liability of and related to the Encroachment. These responsibilities include, but are not limited to, all necessary right-of-way obstructions permits when work related to the Encroachments will affect the public's accessibility to and lawful use of the right-of-way. Owner is solely responsible for all personal and property injury and damage to the extent such injury and damage is the result of the location of the Encroachment. I. The City's Encroachment permission and approval does not guaranty or warranty its safety or short and long-term stability. Nor does this permission and approval mean that the City assumes any risk or responsibility for the presence of the Encroachment. The Encroachment always remains the responsibility and liability of the Owner. J. Public utilities and facilities, including the street and sidewalk, as well as landscaping and electrical, located within the right-of-way are subject to maintenance, repair or replacement. Also, additional or new public facilities may be installed or created at the sole discretion of the City. To that end, The projecting signs shall be unlighted and not connected to electricity for any purpose. 2. The Owner is solely responsible at its own expense for removing or otherwise protecting the Encroachment if it will or may be affected by any public maintenance, repair, replacement, or newly created facility projects or activities within the right-of- way. 3. The Owner is solely responsible at its own expense for protecting all public utilities and facilities, including landscaping and electrical, from adverse effects related to the existence of the Encroachment. Similarly, Owner is also solely responsible for protecting those using the public right-of-way from all 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, or the installation and/or the creation of new public utilities or facilities, 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, replacement, or new facility installation project in the right-of- way. July 22, 2024 3 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, replacement or new facility installation of public utilities and facilities within the right-of-way requires such removal. The City retains the sole discretion to decide whether an Encroachment requires removal. 8. The Owner shall be responsible at its own expense for reinstalling/reattaching the Encroachment regardless of who removed the Encroachment, if Owner elects to reinstall/reattach the Encroachment. 9. The City shall be reimbursed within thirty (30) days of billing by the Owner for all costs and expenses the City has incurred related to removing or protecting the Encroachment. 10. The Encroachments are attached to walls of the Owner's building. In the event Owner fails or refuses to remove the Encroachments when necessary and the City is required to do so, the City has permission to make contact with the Owner's exterior walls of the building to the limited extent necessary to remove the signs and for the limited time necessary to take such action. 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, either existing or future, are incompatible with 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 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, electrical, and/or other streetscape improvements; 4. Local, state, or federal rules, laws, guidelines, or best practices 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 signs at Owner expense. July 22, 2024 4 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, to the extent the foregoing are a cause of the incident. 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 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, immunities, and limitations, 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 404 North Main Street. Revocation of permission for the Encroachments will also occur where the Owner changes its business form or joins with another person or entity to control the Property. 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. July 22, 2024 T. 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. 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 date of the last signature below. SIGNATURE PAGE FOLLOWS July 22, 2024 6 PROPERTY OWNER 404 N MAIN ST., 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 o striction By: Print name title STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY) Personally came before me this day of �'�" 2024, the above-namedJ�►, to me known to be the person who executed the foregoing document and acknowledged the same. Notary Public, State of Wi sAons1A My Commission expires: CITY OF OSHKOSH By:.-�— And:(2r-2 . _ Mark A RDi ohloff, City Manager ane M. Bartlett, City Clerk STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY) Personally came before me this) �Y' day of + &J , 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. J� Not Public, State of Wi consm* r My Commission expires: July 22, 2024 7 i I, PROPOSED SIGNS - EXISTING BUILDING FACADES ARE AT ZERO SETBACK TO THE PUBLIC RIGHT-OF-WAY EXACT LIMITS OF BUILDING ENCROACHMENT UNKNOWN. PROPOSED SIGNS - EXISTING BUILDING FACADES ARE AT ZERO SETBACK TO THE PUBLIC RIGHT-OF-WAY, NORTH MAIN ST EXACT LIMITS OF BUILDING ENCROACHMENT UNKNOWN 404 N MAIN STREET EXHIBIT SIGN ENCROACHMENT EX. BUILDING 'ACADE WASHINGTON AVE BUILDING PROFILE C. BUILDING 1CADE NORTH MAIN STREET SIGN PROFILE . BUILDING PROFILE VIEWS RIGHT-OF-WAY ENCROACHMENTS EXHIBIT A (1 of 1)