HomeMy WebLinkAboutEncroachment 627 Bayshore Dr/ AC unitEncroachment Agreement
CITY OF OSHKOSH
0MV
PROPERTY OWNER
This document drafted by:
David J. Praska, Deputy City Attorney
City of Oshkosh, Wisconsin
DOC# 1937483
SUSAN SNYDER
REGISTER OF DEEDS
WTMIFBAG�-. M-M3:XA%T
RECORDED ON:
01/13/2025 01:56 PM
RECORDING FEE: 30.00
PAGES: 7
Recording Area
Name and Return Address
City Afforney's Office
PO Box 1130
Oshkosh, WI 54903-1130
90800790000
Parcel Identification Number
December 05, 2024 1 C111
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 an air
conditioning unit and associated concrete pad next to the building and Encroaching into the Bay
Shore Drive right-of-way. The Property owner has historically installed and maintained the air
conditioning unit and associated concrete pad. Neither the current Property owner, nor the current
City representatives, are aware of the exact origin of the air conditioning unit and associated
concrete pad. The location of the air conditioner and associated concrete pad 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 remains
materially the same as currently exists, including its Encroachment footprint.
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 and 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.
December OS, 2024 2
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
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 area, 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 air conditioner
caused by City work. However, 627 Bay Shore Drive, LLC is responsible for costs and
logistics related to removing, rerouting, limitations of use, or otherwise protecting the air
conditioning unit and associated concrete pad, 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.
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, 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 parry'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 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 expanded,
without permission from the City;
3. Local, state, or federal rules, laws, or 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
December OS, 2024
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
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 to 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 QL&&,mnbW , 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:
Art ur W. Dumke, Member
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this I'7t"' day of po_r yAy j2j,e C , 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: 2024
ERIN ST. LAWRENCE
CITY OF OSHKOSH Notary Public
nJ`
State of Wisconsin
By: An
Mar A. Rohloff, City Manager Diane M. Bartlett
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY )
Personally came before me this gbh day of 7_')er,erc&e- 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.
Q_%I� Q
Notary Publi tate of Wisconsin
My Commission expires:_ 3- \L\-aZG5�
CHERYL PIONKE
Notary Public
State of Wisconsin
December OS, 2024 5
Encroachment Agreement for Air Conditioning Unit
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 145.98 feet along the said southerly line of Bay Shore Drive to
the true point of beginning; thence westerly 3.0 feet along the said southerly line of Bay Shore
Drive; thence northerly in a straight line 3.5 feet perpendicular to the said southerly line of Bay
Shore Drive; thence easterly 3.0 feet parallel to the said southerly line of Bay Shore Drive; thence
southerly 3.5 feet to a point on said southerly line of Bay Shore Drive, the true point of beginning.
Said encroachment contains 10.5 square feet or 0.0002410 acres more or less.
EXHIBIT A (1 of 1)
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