HomeMy WebLinkAboutEncroachment 627 Bayshore Dr/StaircaseEncroachment Agreement
CITY OF OSHKOSH
FAM
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
DOC# 1937481
SUSAN SNYDER
• OF DEEDS
WTMIFRAG,.r. M-ULTYAXT
RECORDED ON:
01/13/2025 01:56 PM
RECORDING FEE: 30.00
PAGES: 7
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh, W1 54903-1130
OMMUS 57AIR
90800790000
Parcel Identification Number
December 05, 2024
ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh (City) and 627 Bay Shore Drive, LLC. 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. 627 Bay Shore Drive, LLC is the fee owner of Tax Parcel Number 90800790000 (Property), which
is commonly known as 627 Bay Shore Drive, Oshkosh. The Property is more particularly described
as:
See Exhibit A
B. The Property is located at the southwest corner of Bay Shore Drive and Mill Street. The Property
is used for multi -use commercial, industrial, and light manufacturing purposes, and includes two
buildings, one street -side building and one interior building. The street -side building was
constructed at the Iot lines with no zoning set -backs. This lot line location results in this request
for approval of an Encroachment into the Bay Shore Drive right-of-way.
C. The Owner requests permission from the City that would allow the continued location of stairs in
the right-of-way that connect to the buildings primary door for ingress / egress. The Property owner
has historically installed and maintained the stairs in the right-of-way used for ingress/egress.
Neither the current Property owner, nor the current City representatives, are aware of the exact
origin of the stairs in the right-of-way. The location of the stairs are shown as the "encroachment"
in Exhibit B.
D. The City grants permission to 627 Bay Shore Drive, LLC allowing the continued Encroachment
into the City's public right-of-way for Bay Shore Drive provided the Encroachment does not extend
any further into the right-of-way than currently exists.
E. 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.
F. 627 Bay Shore Drive, LLC 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 627 Bay Shore Drive, LLC.
G. The City is reconstructing Bay Shore Drive and is installing sidewalks within the right-of-way and
along the right-of-way line. Owner's building was constructed on the lot line / right-of-way line
which is directly adjacent to the Owner's building. Due to the Encroachment, the sidewalk will
have to curve away from the right-of-way line and around the Encroachment. In the event the
Encroachment is removed, remains unused for six (6) consecutive months (not including the winter
season), or abandoned, then the Encroachment shall be removed. Upon removal, the Owner is
responsible for reconfiguring and reinstalling the sidewalk so that it is adjacent to the right-of-way
line and otherwise conforms to City standards. The sidewalk reconfiguration and reinstallation
shall be approved by the City before any work is commenced, and shall be at Owner's cost.
H. 627 Bay Shore Drive, LLC 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
December 05, 2024 2
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 will provide 627 Bay Shore Drive, LLC 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 627 Bay Shore Drive, LLC as soon as practicable.
2. The City will cooperate and help coordinate any disruptions of access into 627 Bay Shore
Drive, LLC's building through the Encroachment area. However, 627 Bay Shore Drive,
LLC is responsible for costs and logistics related to removing, rerouting, or limiting the
use of the stairs, and for otherwise protecting the Encroachment, that are necessary because
of 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, or for ensuring the Owner continues to be
compliant with all applicable regulations during construction.
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 underlying personal rather than property nature of the Encroachment permission, and of
this Agreement, 627 Bay Shore Drive, LLC 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.
At some point in the future, certain local, state, or federal laws, policies, or procedures, or the City's
desired use of the public right-of-way, may conflict with the Encroachment. 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, limit, or terminate 627 Bay Shore Drive, LLC's use of the Encroachment Areas:
1. The City at its sole discretion determines that the Encroachment adversely affects the use
and functioning of the public right-of-way and the public facilities and improvements
therein;
2. Additional encroachments are added, or the existing Encroachment is materially expanded,
without permission from the City;
3. Local, state, or federal rules, laws, guidelines, or best practices 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. 627 Bay Shore Drive, LLC fails to properly maintain, repair, or replace the Encroachment;
or,
5. Any other lawful reason or circumstance.
K. 627 Bay Shore Drive, LLC 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. 627 Bay Shore Drive, LLC shall protect and
hold the City of Oshkosh harmless and indemnify against all actions, claims and demands of any
December OS, 2024
kind or character whatsoever which are related to the Encroachment, except to the extent caused
by the City's negligence.
L. 627 Bay Shore Drive, LLC's responsibilities and liabilities pursuant to this Agreement extend to
other persons, contractors, and agents performing work on 627 Bay Shore Drive, LLC's behalf that
are related to the Encroachment.
M. This Agreement is solely for the benefit of the City and 627 Bay Shore Drive, LLC, and it is not
intended to benefit any third -party or attach to the Property.
N. The decision to enforce or not enforce any rule or obligation, 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. This Agreement shall be interpreted according to Wisconsin law, regardless of any choice
of law statutes. The venue for disputes shall be Winnebago County, Wisconsin.
P. This Encroachment Agreement shall inure to the benefit of, and be binding upon, these two parties.
To the extent that 627 Bay Shore Drive, LLC rents or leases the Property, 627 Bay Shore Drive,
LLC shall remain responsible for its obligations described in this Agreement even though the
actions are taken by tenants or are related to any tenancy. 627 Bay Shore Drive, LLC 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 and does not describe the transfer or acquisition of any property rights or interest.
The action of recording this Agreement shall not imply the grant or conveyance of any interests or
rights in property. This Agreement shall expire upon the conveyance of any interest in the Property.
[SIGNATURE PAGE FOLLOWS]
December OS, 2024 4
Dated this 1 1*"' day of �(ww8 bL., 2024.
627 BAY SHORE DRIVE, 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 ol'
BY: / �
Arthur W. Dumke, Member
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this 114'6' day of >b,�,,. , 2024, the above -named Arthur
W. Dumke, to me known to be the persons who executed the foregoing document and acknowledged the
same.
Notary Public, State of Wisconsin
My Commission expires: 2o2-4a
ERIN ST. LAWRENCE
CITY OF OSHKOSH Notary Public
Q�( State of Wisconsin
By: 6-- _ And: / Z�2k; 1 1
M A. Rohloff, City Manager Diane M. Bartlett
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this IgWl day of 9e,Cem)c2�- , 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 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.
UhO�Q
Notary PubQ, State of Wisconsin
My Commission expires: 3 - I y -cq 0
CHERYL PIONKE
Notary Public
State of Wisconsin
December 05, 2024
Encroachment Agreement for Staircase
Parcel 08-0079-0000
Owner: 627 Bay Shore Drive LLC
Address: 627 Bay Shore Drive
Being a part of the Southwest 1/4 of the Southeast 1/4 of Section 24, Township 18 North, Range
16 East, Eighth Ward, City of Oshkosh, Winnebago County, Wisconsin, bounded and described
as follows:
Commencing at the southwesterly corner of the southerly line of Bay Shore Drive and westerly
line of Mill Street; thence westerly 212.35 feet along the said southerly line of Bay Shore Drive to
the true point of beginning; thence westerly 11.0 feet along the said southerly line of Bay Shore
Drive; thence northerly in a straight line 6.0 feet perpendicular to the said southerly line of Bay
Shore Drive; thence easterly 11.0 feet parallel to the said southerly line of Bay Shore Drive; thence
southerly 6.0 feet to a point on said southerly line of Bay Shore Drive, the true point of beginning.
Said encroachment contains 66.0 square feet or 0.001515 acres more or less,
EXHIBIT A (1 of 1)
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