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HomeMy WebLinkAboutEncroachment 627 Bayshore Drive/Fire escapeEncroachment Agreement CITY OF OSHKOSH AND PROPERTY OWNER This document drafted by: David J. Praska, Deputy City Attorney City of Oshkosh, Wisconsin DOC# 1937482 SUSAN SNYDER REGISTER OF DEEDS WINNEBAGO COUNTY, WI RECORDED ON: 01/13/2025 01:56 PM RECORDING FEE: 30.00 PAGES: 7 ling Area and Return Address Coo City Attorney's Office PO Box 1130 00 Oshkosh, W1 54903-1130 90800790000 Parcel Identification Number December 05, 2024 1 ul 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 lot 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 a second - floor fire escape door opens directly into the Bay Shore Drive right-of-way. The fire escape door is connected to fire escape stairs that Encroach into the right-of-way and lead to ground level. The Property owner has historically installed and maintained the fire escape stairs. Neither the current Property owner, nor the current City representatives, are aware of the exact origin of the fire escape stairs. The location of the fire escape is shown as the "encroachment" in Exhibit B. D. The City grants permission to 627 Bay Shore Drive, LLC allowing this 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 OS, 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 in the use of the fire escape stairs. However, 627 Bay Shore Drive, LLC is responsible for the costs and logistics related to removing, rerouting, or limiting use of the fire escape stairs, and for otherwise protecting the fire escape, 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 that Owner continues to have compliance with fire regulations. 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 the City's Encroachment permission and therefore 627 Bay Shore Drive, LLC's use of the Encroachment area: 1. The City at its sole discretion determines that the Encroachment adversely affects the use and functioning, present or future, of the public right-of-way and the public facilities and improvements therein; 2. Additional encroachments are added, or the existing Encroachment is materially changed or 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 when necessary; 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 those are 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 11' "' day of 0(.Lg Mom, 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 B - Arthur W. Dumke, Member STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY } Personally came before me this 116" day of DLcn.r%),g. , 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: toN I9 n2 9 ERIN ST. LAWRENCE CITY OF OSHKOSH Notary Public `� State of Wisconsin By: z�An ' c ` Mafk A. Rohloff, City Manager Diane M. Bartlett STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY ) Personally came before me this \ CVh day of '�)ec��bP� , 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. Notary Pub ' State of Wisconsin My Commission expires: 3 - \%A-aoaR CHERYL PIONKE Notary Public State of Wisconsin December 05, 2024 5 Encroachment Agreement for Fire Escape Parcel 08-0079-0000 Owner: 627 Bay Shore Drive UC 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 63.93 feet along the said southerly line of Bay Shore Drive to the true point of beginning; thence westerly 25.0 feet along the said southerly line of Bay Shore Drive; thence northerly in a straight line 5.5 feet perpendicular to the said southerly line of Bay Shore Drive; thence easterly 25.0 feet parallel to the said southerly line of Bay Shore Drive; thence southerly 5.5 feet to a point on said southerly line of Bay Shore Drive, the true point of beginning. Said encroachment contains 137.5 square feet or 0,003157 acres more or less. EXHIBIT A (1 of 1) T to H O U N O w Z W J 0� J � W m W � =Q Dm> O LJL cn O o I \I • N Z � W CY JAU Or a HOW [ (Isai AII) :aivOS Oz OT O OIHdd2I� bLOL•ZZbTgua®vcg y°48 �H �I�I�AE72IQ ��NI�TI�I3'IL� MOISLIIQ jJNRiMminma HSOXHS0 JO A.L1O W O � Li W O U co N z Q N o �- zw --_ w a.. O o _ r) 0 < O �- J EXHIBIT B (1 of 1)