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Home My WebLink AboutPaul Esslinger 216 N Main St Encroachment Agreement 1 `' 9 7' 9 3 REGISTER'S OFFICE Document Number WINNEBAGO COUNTY, WI RECORDED ON 12/15/2010 09:06AN JULIE PAGEL REGISTER OF DEEDS RECORDING FEE 30.00 TRANSFER FEE 1 OF PAGES 5 Recording Area ¢ rsJ,_ Name and Return Address City Attorney's Office 1 Oshkosh, Wi 54903 -i130 018 -0057 (part) Parcel Identification Number CITY OF OSHKOSH AND PROPERTY OWNER This document drafted by Lynn A. Lorenson, City Attorney 1 ENCROACHMENT AGREEMENT This agreement is between the City of Oshkosh ( "City ") and Paul Esslinger ( "Owner "). The parties enter into this agreement for $1.00 and other good and valuable consideration, the receipt of which is acknowledged. The Owner is the fee owner of the property commonly known as 216 North Main Street ( "Property "), and is more particularly described as: West 20 ft. of Lot 12 and all of Lot 23, Block 22 L.M. Millers 1st Addn, Part of the NE 1/4 of the SW 1/4 of Section 24, T18N, R16E, City of Oshkosh, Winnebago County, Wisconsin; Adjoining the Property along its West boundary is a public right -of -way used for various public utilities, public sidewalks, and a public vehicular way commonly known as Main Street and /or State Highway 45. The City currently is responsible for maintenance of the right of way for this section of Main Street / State Highway 45 and therefore has the authority to enter into this agreement. The Owner desires to erect a sign which will be attached to the Owner's building on the Property and will project over and extend into the right of way. No structure or object, including the proposed sign, is allowed to project into a right -of -way without the City's permission. The City of Oshkosh has reviewed the Owner's request and will allow the placement of the requested projecting sign subject to the terms and conditions identified in this agreement. Both parties agree that all of the City's terms and conditions in this document are to be considered material. Specific terms and conditions of this agreement between City and Owner follow. 1. The City grants permission to the Owner to attach a sign to the building on his Property which will project into the right -of -way of Main Street / State Highway 45, provided that the projecting sign is materially similar to the sign submitted for the City's approval ( "Projecting Sign "). A drawing of the allowed Projecting Sign is attached hereto as Exhibit A. 2. The City's permission for this Projecting Sign is contingent upon the initial, and continuing, compliance with all applicable local, state, and federal codes and rules. The Projecting Sign shall comply with City Ordinances, including but not limited to requirements for permits, structures, signs, projecting signs, Chapter 30 -37 and Chapter 30 -27. 3. The Owner agrees that he is solely responsible for the installation and maintenance of the Projecting Sign, and that he is solely responsible for any and all personal or property damage caused by the Projecting Sign. 4. The Owner is solely responsible for securing, maintaining, repairing, and replacing the Projecting Sign. The City's permission and approval of the Projecting Sign is not related to the Owner's responsibility for the short and long term stability and safety of the Projecting Sign. 5. The Owner acknowledges and agrees that public utilities and facilities, and the street and sidewalk, in the right -of -way are subject to maintenance, repair or replacement. In the event that maintenance, repair, or replacement of public utilities or facilities in the right -of -way will need to occur, the City agrees to make reasonable efforts to notify the Owner of these activities so that the Owner may remove or otherwise protect the Projecting Sign. If the Owner elects to remove or otherwise protect the Projecting Sign, such actions must be taken within the timeframe for the City's anticipated work. However, the City shall not be responsible for any damage to the Projecting Sign, or any structure to which the Projecting Sign is attached, related to the City's actions in its right of way. The City has no obligation, but shall be allowed to remove, at its sole discretion, the Projecting Sign for the purpose of maintenance, repairs, and replacement of utilities and facilities within the right of way. The Owner shall be responsible for reinstalling /reattaching the sign in those circumstances where the City removes the Projecting Sign. The City shall be reimbursed by the Owner for all costs and expenses related to removing or protecting the Projecting Sign. The Owner gives the City permission to enter, access, and alter his property that is not in the right of way for the sole purpose of removing or protecting the Projecting Sign. 6. The City is allowed to revoke its permission for the Projecting Sign for any of the following reasons: a. The City's use of the right of way prohibits the continued location of the Projecting Sign; b. Local, state, or federal rules, laws, or guidelines relating to public sidewalk or street clearances or distances prohibit the continued location of the Projecting Sign; c. The Owner fails to property maintain, repair, or replace the Projecting Sign; d. The Owner fails to provide the City with annual written proof that the Projecting Sign is covered by the required insurance. 7. 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 Projecting Sign. The Owner shall protect and hold the City of Oshkosh harmless against all actions, claims and demands of any kind or character whatsoever which are related to the Projecting Sign. 8. 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. Therefore, the Owner agrees to indemnify and pay to the City all amounts that the City may be required, obligated, or adjudged as responsible to pay, for any dispute or action related to the Projecting Sign. This 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 privilege granted by the City under this agreement. 9. At all times that the sign projects into the right of way, the Owner's property liability insurance shall cover all potential liabilities related to the projecting sign. The Owner's insurance shall provide reasonable coverage for potential damages to persons and property cause wholly, or in part, by the projecting sign. Minimum insurance coverage related to the projecting sign shall be $200,000/$500,000. The Owner shall annually provide the City with proof of insurance for the projecting sign. 10. The City's permission is personal to the Owner, and cannot be transferred or assigned to any other person or entity, whether voluntarily or involuntarily. The Owner's rights contained in this agreement do not attach to property and do not run with the land. Permission for the Projecting Sign is revoked immediately and without notice as of the time that the Owner, in his own name, is no longer the sole fee owner of the property at 216 North Main Street. Revocation of permission will also occur where the Owner forms an entity of which he is the sole or partial owner. 11. The Owner's responsibilities pursuant to this agreement extend to other persons, contractors, and agents performing work on Owner's behalf and related to the Projecting Sign. 12. This agreement is solely for the benefit of the two parties to this agreement, and it is not intended to benefit any third party. 13. The election to enforce or not enforce, as well as the timing of 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 Projecting Sign in the future. 14. This agreement shall incorporate all immunities and limitations provided to municipalities within the Wisconsin Statutes, regardless of whether a claim is based upon contract, tort, or other theory. This agreement shall not run with the land. Dated this day of 04).&44,e(72010. O N 0 a uI 4.7.:..--- finger STATE OF WISCONSIN ) SS. WINNEBAGO COUNTY ) Personally came before me this 5 h day of ► v 0 tie YT \ bi 2010, the above -named PAUL ESSLINGER, to me known to be the person(s) who executed the foregoing document and acknowledged the same. e l � t ??ice Notary Public, ijt1Yi 0 fig /,l 7j Co., Wisconsin My Commission: 4 - 1 Z 1 4.3. CITY OF OSHKOSH By: fet.-__, • / l.-1 And: e , A' Mark A. Rohloff, City Manager P_ •• - _ �A�Ef!! - - Y 9 ( t STATE OF WISCONSIN ) SS. WINNEBAGO COUNTY ) J 1 Personally came before me this . > r, r day of N ✓ 1 e ii t�'� 12010, the above -named MARK A. ROHLOFF, CITY MANAGER, AND PAMELA R. UBRIG, CITY CLERK , of the City of Oshkosh, a municipal corporation, to me known to be the personswho 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. zak Notary Puolic, Winnebago Co., WI My Commission expires /is: ' if " / 3