HomeMy WebLinkAboutEncroachment Agreement/07-0046-0000 Encroachment Agreement
Document Number
Recording Area
Name and Return Address
City Attorney's Office
Oshkosh WI 54903 -1130
0700460000
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Assistant City Attorney
City of Oshkosh, Wisconsin
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REVOCABLE ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh ( "City") and the JRD Investments,
LLC, a Wisconsin Limited Liability Company ( "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 571 North Main
Street ( "Property "), and is more particularly described as:
Lots 19, 20, 21, 22, 41, 42, 43, 44, 45, East Seven (7) feet of Lot 46,
Lot 23 excluding the North Four and Six/Tenths (4.6) feet, all in
Hennings Plat of Lot 2, Block 43, City of Oshkosh, Winnebago County,
Wisconsin.
Adjoining the Property along its East boundary is a public right -of -way used for
various public utilities, public sidewalks, and a public vehicular way commonly known as
Main Street. The City currently is responsible for maintenance of the right of way for this
section of Main Street and therefore has the authority to enter into this agreement.
The Owner desires to erect three (3) awnings which will be attached to the Owner's
building on the Property and will project over and extend into the right of way no more than
two feet nine inches (2' 9 ") from the face of the building. No structure or object, including
any of the proposed awnings, 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 Awnings 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 three (3) awnings to the
building on his Property which will project into the right -of -way of Main Street,
provided that the Projecting Awnings are materially similar to the awning design
and specifications submitted for the City's approval ( "Projecting Awnings ").
Drawings of the allowed Projecting Awnings are attached hereto as Exhibit A.
2. The City's permission for these Projecting Awnings are contingent upon the
initial, and continuing, compliance with all applicable local, state, and federal
codes and rules. The Projecting Awnings 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 Awnings, and that he is solely responsible for any
and all personal or property damage caused by the Projecting Awnings.
4. The Owner is solely responsible for securing, maintaining, repairing, and
replacing the Projecting Awnings. The City's permission and approval of the
Projecting Awnings is not related to the Owner's responsibility for the short and
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long term stability and safety of the Projecting Awnings.
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 Awnings. If the Owner elects to
remove or otherwise protect the Projecting Awnings, 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 Awnings, or any structure to
which the Projecting Awnings are 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 Awnings 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 awning in those circumstances
where the City removes the Projecting Awnings. The City shall be reimbursed
by the Owner for all costs and expenses related to removing or protecting the
Projecting Awnings. 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 Awnings.
6. The City is allowed to revoke its permission for one or all of the Projecting
Awnings for any of the following reasons:
a. The City's use of the right of way prohibits the continued location of the
Projecting Awning(s);
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 Awning(s);
c. The Owner fails to property maintain, repair, or replace the Projecting
Awning(s);
d. The Owner fails to provide the City with annual written proof that the
Projecting Awnings are 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
Awning. 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 Awnings.
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 Awnings. This indemnification is
broad, and shall include damages, attomey'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.
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9. At all times that the awning projects into the right of way, the Owner's property
liability insurance shall cover all potential liabilities related to the Projecting
Awnings. The Owner's insurance shall provide reasonable coverage for
potential damages to persons and property cause wholly, or in part, by the
Projecting Awnings. Minimum insurance coverage related to the Projecting
Awnings shall be $500,000 for each occurrence for bodily injury and property
damage liability and $500,000 general aggregate. The Owner shall include the
City of Oshkosh as an additional insured on its policy for claims, liabilities, and
damages related to the Projecting Awnings. The Owner shall annually provide
the City with proof of insurance for the Projecting Awnings.
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 Awnings is revoked immediately
and without notice as of the time that the Owner is no longer the sole fee owner
of the property at 571 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 Awnings.
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 Awnings 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.
SIGNATURE PAGE FOLLOWS
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Dated this o2. C day of 142 , 2011.
OWNER:
JRD Investments, LLC
obert Wolf, Mar ing Member
STATE OF WISCONSIN )
SS.
WINNEBAGO COUNTY)
Personally came before me this O� day of 2011, the above -named Robert Wolf to me
known to be the person(s) who executed the foregoing docume and acknowled the same.
.1L—LkOjkit
Notary Public, W o., Wisconsin
My Commission: /2 / Y
CITY OF OSHKOSH
By: / An• 4 (./
Ma is A. Rohloff, City Manager Pamela R. Ubrig, City Clerk
STATE OF WISCONSIN )
SS.
WINNEBAGO COUNTY )
Personally came before me this 3 I day of /C - 2011, 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 persons who executed the foregoing instrument, and to me kno n to be such officers of said
corporation, and acknowledged that they executed the foregoing instru ent as sucf. fficers as the deed of said
corporation, by its authority.
Notary Public, Winnebago Co., WI
My Commission expires/is: '2 " Z "�
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Exhibit for
Oshkosh Tent & Awning Co., Inc. The Roxy Drawn by: Alan Benzschawel
110 East Fernau Avenue 571 N. Main Street Re e May 4, 2011
Oshkosh, WI 54901 Oshkosh, Wi 54901 Revvi sed d b by: y:
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Oshkosh Tent & Awning Co., Inc. The Roxy Drawn by: Alan Benzschawel
110 East Femau Avenue 571 N. Main Street Date Drawn: May 4, 2011
Oshkosh, WI 54901 Oshkosh, WI 54901 Revised by:
Revisiart Date:
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Oshkosh Tent & Awning Co., Inc. The Roxy Drawn by: Alan senzschawel
9 5 71 N. Main Street Date Drawn: May 4, 2014
110 East Femau Avenue Revised by:
Oshkosh, WI 54901 Oshkosh, WI 54901 Revision Date:
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Oshkosh Tent & Awning Co., Inc. The Roxy Drawn by: Alan Benzschawet
110 East Femau Avenue 571 N. Main Street Date Drawn: May 4, 2011
Revised by:
Oshkosh. WI 54901 Oshkosh, WI 54901 Revision Date: