HomeMy WebLinkAboutEncroachment Agreement/07-0012-0000 I 1 - '7 2 1-ariDE
Encroachment Agreement REGISTERS OFFICE
WINNEBAGO COUNTY, WI
Document Number RECORDED ON
06/16/2011 09:24AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 30.00
TRANSFER FEE
4 OF PAGES 6
Recording Area
Name and Ret n Address
City Attorney's Office
Oshkosh, WI 54903 -1130
9070012000
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Assistant City Attorney
City of Oshkosh, Wisconsin
JUNE 8, 2011 1 OP
REVOCABLE ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh ( "City "), and Bradford C. Britton,
( "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 435 North Main
Street ( "Property "), and with a summary description as follows:
North 27 feet 4 inches of Lot 7 lying East of a line that starts at a point
on the South line of Lot 7 that is 162 feet West of the West line of Main
Street to a point on the North line of Lot 7 that is 151.2 feet West of the
West line of Main Street, Block 44 of Leach's Map, 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 a sign (Projecting Sign), to be attached to the Owner's
building on the Property and will project over and extend into the right of way as described
in this document:
One (1), two- sided, non - lighted sign projecting in a
perpendicular manner from the building. The sign, including
hardware, will extend no more than forth eight (48) inches from
the building and into the right of way. The sign, including
hardware, shall maintain a clearance above the sidewalk at a
distance approved by all applicable City departments.
The City of Oshkosh has reviewed the Owner's request as described in this
document, 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 one (1) sign to the building on
his Property which will project into the right -of -way of Main Street, provided that
the Projecting Sign is materially similar to the sign design and specifications
submitted for the City's approval. All parts of or related to the sign shall have a
minimum sidewalk clearance of eight (8) feet, or distance required by code or
City policy. A drawing of the Projecting Sign allowed 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.
JUNE 8, 2011 2
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 each 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 affected. 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 or
hardware 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 Projecting 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
Signs. 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
JUNE 8, 2011 3
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 during which the Projecting Sign encroaches 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 $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 Sign. 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 Signs is revoked immediately
and without notice as of the time that any person or entity other than the "Owner"
identified in this document becomes a fee owner, whether in whole or in part, of
the property at 435 North Main Street. Revocation of permission for the
Projecting Sign 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 parties to this agreement, and it is
not intended to benefit any third party.
13. The election to enforce or not enforce any term of this agreement, or any
statute, code, or rule, as well as the timing of such 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.
This agreement shall become effective upon the last date a party signs below.
[SIGNATURE PAGE FOLLOWS]
JUNE 8, 2011 4
OWNER:
B ' FORD C. BRI TON
\ F
Bradford . Britton .'�(,'•
• cP •
• NOTARy %
STATE OF WISCONSIN )
ss - -- •
WINNEBAGO COUNTY ) cn PUBLIC
Personal) came before me this
Personally � day of �7(1e,. , 2011, the af£i kg atlford C. Britton,
to me known to be the person(s) who executed the foregoing document and acknovele e8�th $acne.
ty-
Notary Public, L.LJ■ c nr'n cZ Co., Wisconsin
My Commission: q 130 12
CITY OF OSHKOSH
By: �--�� And:'`�
M k A. Rohloff, City Manager Pamela R. Ubrig, City CYer
STATE OF WISCONSIN )
SS.
WINNEBAGO COUNTY )
Personally came before me this I 3 441 day of fU P1 e. , 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 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 Public, Winnebago Co., WI
My Commission expires /is:. t iy 8 2012-
JUNE 8, 2011 5
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