Loading...
HomeMy WebLinkAboutEncroachment Agreement 0700080000 Lang 1 L=.;Es'9.B-4 1 REGISTER'S OFFICE WI NNEBAGO COUNTY, WI Encroachment Agreement RECORDED ON Document Number 12/ 0/2,111 9:4IAN JULIE PAGEL REGISTER OF DEEDS RECORDING FEE 30.06 TRANSFER FEE S OF PAGES II Recording Area Name and Return Address . City Attorney's Office Oshkosh,WI 54903-1130 ■ 90700080000 Parcel Identification Number CITY OF OSHKOSH AND PROPERTY OWNER This document drafted by: David I. Praska, Assistant City Attorney City of Oshkosh, Wisconsin Draft Date: November 18, 2011 1 1 REVOCABLE ENCROACHMENT AGREEMENT This agreement is between the City of Oshkosh("City"), and 421 North Main Street, LLC ("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 421 North Main Street ("Property"), and with a summary description as follows: Lot Two (2) of Block Forty-four (44) in the Seventh Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894. The North Ten (10)feet of Lot Nine(9) in Cottrill's Subdivision of Lot 1, of Block 44, in the Seventh Ward, City of Oshkosh,Winnebago County, Wisconsin, per Leach's Map of 1894. The North Six(6) inches of that part of an alley lying South of and adjacent to Lot 2 of Block 44, in the Seventh Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894 and between the West line of Lot 8 and the East line of Lot 9 in Cottrill's Subdivision of Lot 1 of Block 44, in the Seventh Ward, City of Oshkosh, per Leach's Map of 1894. 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 owns and/or 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. No structure or object, including the proposed New Projecting Awning, is allowed to project into any public right of way without the City's permission. The Owner desires to erect an awning (New Projecting Awning), to be attached to the Owner's building on the Property and will project over and extend into the right of way no more than three feet four inches (3' 4") from the face of the building. The New Projecting Awning to be installed on the Property will be part of a single projecting awning that will also be installed on the adjoining structure known as 423 North Main Street, Oshkosh. The Owner previously constructed an awning which is attached to the Property and projects/encroaches into the public right of way (Old Projecting Awning). The Old Projecting Awning was constructed with a City building permit, but without permission from the City to encroach into the public right of way. The City of Oshkosh has reviewed the Owner's current request as described in this document, and will allow the placement of the requested New Projecting Awning subject to the terms and conditions identified in this agreement. The City of Oshkosh has also reviewed the Owner's previously constructed awning and will allow its continued placement 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 an awning to the building on its Property which will project into the right-of-way of Main Street, provided that Draft Date: November 18, 2011 2 the New Projecting Awning is materially similar to the Awning design and specifications submitted for the City's approval. All parts of or related to the Awning shall have a minimum sidewalk clearance of eight (8)feet, or distance otherwise required by code or City policy. A drawing of the New Projecting Awning allowed is attached hereto as Exhibit A. 2. The City grants permission to the Owner to allow the continued projection / encroachment of the awning constructed in 2006 into the public right of way, provided that the Old Projecting Awning is materially similar to the Awning design and specifications proposed in 2006 as submitted to the Inspections Division for their approval in obtaining a building permit. A drawing of the Old Projecting Awning is attached hereto as Exhibit B. 3. The City's permission for this New Projecting Awning is contingent upon the initial, and continuing, compliance with all applicable local, state, and federal codes and rules. The New Projecting Awning shall comply with City Ordinances, including but not limited to requirements for permits,structures, signs, projecting signs, Chapter 30-37 and Chapter 30-27. 4. The City's permission for the continued placement of the Old Projecting Awning is contingent upon the initial, and continuing, compliance with all applicable local, state, and federal codes and rules. The Old Projecting Awning shall comply with City Ordinances, including but not limited to requirements for permits, structures, signs, projecting signs, Chapter 30-37 and Chapter 30-27. Both the City and the Owner acknowledge that the Old Projecting Awning does not meet the minimum sidewalk clearance of eight(8)feet. The City will allow this continued deficiency provided it is understood that such allowance does not constitute a waiver of any rule or requirement,and provided the Owner agrees to take full responsibility for any damages caused by the Old Projecting Awning and to comply with all other terms of this Agreement. 5. The Owner agrees that they is solely responsible for the installation and maintenance of both the New Projecting Awning and the Old Projecting Awning, and that they are solely responsible for any and all personal or property damage caused by the New Projecting Awning and the Old Projecting Awning. 6. The Owner is solely responsible for securing, maintaining, repairing, and replacing the New Projecting Awning and the Old Projecting Awning. The City's permission and approval of each of the Projecting Awnings does not guaranty or warranty the short and long term stability and safety of the New and Old Projecting Awnings. 7. 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 New and/or Old Projecting Awnings if affected. If the Owner elects to remove or otherwise protect the New and/or Old 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 New and/or Old Projecting Awnings, or any structure or hardware to which Draft Date: November 18, 2011 3 the New and/or Old 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 New and/or Old 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 New and Old Projecting Awnings in those circumstances where the City removes one or both of the Projecting Awning. The City shall be reimbursed by the Owner for all costs and expenses related to removing or protecting the New and/or Old Projecting Awnings. The Owner gives the City permission to enter, access, and alter the Owner's Property that for the sole purpose of removing or protecting the New and/or Old Projecting Awnings. 8. The City is allowed to revoke its permission for the New Projecting Awning and the Old Projecting Awning for any of the following reasons: a. The City's use of the right of way prohibits the continued location of the New and/or Old Projecting Awnings; b. The New and/or Old Projecting Awnings interfere with or may potentially damage landscaping and/or other streetscape improvements; c. The City at its sole discretion believes that the Old Projecting Awning, at its current height, must be removed completely, or moved so that it complies with all codes. d. The cost of maintenance necessary for the Old Projecting Awning equals 50%or more of the awnings value at the time the subject maintenance is necessary. e. Local, state, or federal rules, laws, or guidelines relating to public sidewalk or street clearances or distances prohibit the continued location of the New and/or Old Projecting Awnings; f. The Owner fails to property maintain, repair, or replace the New and/or Old Projecting Awnings; g. The Owner fails to provide the City with annual written proof that the New and Old Projecting Awnings are covered by the required insurance. 9. 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 New and Old Projecting Awnings. The Owner shall protect, hold harmless,and indemnify the City of Oshkosh against all actions, claims and demands of any kind or character whatsoever which are related to the New and Old Projecting Awnings. 10. 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 New and/or Old Projecting Awnings. 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 privileges granted by the City under this agreement. Draft Date: November 18, 2011 4 .. ...... . ................. 11. At all times during which the New and/or Old Projecting Awnings encroach into the right of way, the Owner's property liability insurance shall cover all potential liabilities related to the New and Old Projecting Awnings. The Owner's insurance shall provide reasonable coverage for potential damages to persons and property caused wholly, or in part, by the New and/or Old Projecting Awnings. Minimum insurance coverage related to the New and Old Projecting Awnings shall be $500,000 for each occurrence for bodily injury and property damage liability and $500,000 general aggregate. The Owner's insurance shall include the City of Oshkosh as an additional insured on its policy for claims, liabilities, and damages related to the New and/or Old Projecting Awnings. The owner's insurance shall provide primary coverage and that any insurance or self insurance maintained by the City of Oshkosh, its officers, council members, agents, employees or authorized volunteers will not contribute to a loss. The Owner shall annually provide the City with proof of insurance for the New and Old Projecting Awnings. 12. The City's permission is personal to the Owner, is not intended to convey any property rights or waive any governmental regulatory rights, 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 New and Old Projecting Awnings 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 421 North Main Street. Revocation of permission for the New and Old Projecting Awnings will also occur where the Owner forms a different entity to own the Property in whole or in part of which they are the sole or partial owner. 13. 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 New and/or Old Projecting Awnings. 14. The Owner agrees to be bound by the terms of this agreement regardless of the existence of any other agreements with the City related to the New and/or Old Projecting Awnings, 15. This agreement is solely for the benefit of the parties to this agreement, and it is not intended to benefit any third party. 16. 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 New and/or Old Projecting Awnings in the future. 17. This agreement shall incorporate all immunities and limitations provided to and protecting 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. Draft Date: November 18, 2011 5 PROPERTY OWNER: 421 North Main Street, L C - ". Megan H.Ilang, Managing Memb STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY ) Personally came before me this C`9 day of I tbe,2011,the above-named Megan H.Lang,to me known to be the person(s)who executed the foregoing t,•cument and r nowledgz d the same. Ito 10A-ts._ Notary Public, ) 4c Co. Wisconsin My Commission: '7 /. / CITY OF OSHKOSH y: And: a k t�Jr) L Mark A. Rohloff, City Manager Pamela R. Ubrig, City Clerk' STATE OF WISCONSIN ) )ss. WINNEBAGO COUNTY ) Personally came before me this /9-01 day of bee c m f , 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. yil v Notary Public,Winnebago Co.,WI My Commission expires/ls:,2',7/-/3 Draft Date: November 18, 2011 6 ' -I v 0 ro m w■ V1 CA C = 41 0) C -a §�W n G o i 00 wh a SE /.} ;t G jJi J�9�,��']( m l ,y. �: V } {�3 „,:,=, 1 I 1._9 s a �A u - ink f • _ .' " ,, R „ V._..._ L L V 1 Vi Z M rn w !IL' m �" ^� W 111 Oshkosh Tent&Awning Co., Inc. Marsh Family Eye Care Drawn by:Alan 8enzschawei 423 N. Main Street Date prawn:October 25,201 OR 110 EaBt F @r1iaU AVenUe Revised by:Alan Benz per 1.w l Oshkosh, WI 54901 Oshkosh, WI 54901 Revision sate:November 1.2011 Exhibit ftlFa- • NN 5. CO 3 N (A co. r N o CO al 0 CD ca o cxD 3 r.4. a) Q W = tA/Z Cn CO fir'!1 +_. II II I II u u V V V N sco rn 7103 n m C X sy C 3a, � 3a 5' 3(C) co co co co co Oshkosh Tent &Awning Co., Inc. Marsh Family Eye Care Date Drawn:Al October 5,2011 110 East Fernau Avenue 423 N. Main Street Revised by: Oshkosh. WI 54901 Oshkosh, WI 54901 , Revtston Date: ., Exhibit A ')aF9— /0 Torel- r-7 � q I / j ��f¢` ,C3 / / 4fl „� 1T i, 9�l Exhibit 13 lop)-- • 6 CITY OF OSHKOSH No 120782 OSHKOSH BUILDING PERMIT-APPLICATION AND RECORD ON THE WATER Job Address 42 N MAIN ST Owner 421 NORTH MAIN STREET LLC Create Date 07/26/2006 Designer Contractor OSHKOSH TENT&AWNING CO INC Category 25 -Awnings/Canopies Plan Type 0 Building 0 Sign • Canopy Q Fence Q Raze T J Zoning Class of Const Size Unfinished/Basement Sq.Ft. Rooms Height Ft. Q Projection I Finished/Living Sq.Ft. Bedrooms Stories Canopies 1 Garage Sq.Ft. Baths Signs Foundation Q'Poured Concrete Q Floating Slab Q Pier • Other QI Concrete Block 0 Post Q Treated Wood -- Occupancy Perm Not Required Flood Plain Height Permit Park Dedication #Dwelling Units 0 #Structures 0 Use/Nature Commercial/Install a 4'projecting,4'10"Tall x 18'long awning on east facade w/16 5;94"screen printed business name. of Work HVAC Contractor Plumbing Contractor Electric Contract••r Fees: Valuat`i.i� $1.892,00 Plan Approval $0.00 Permit Fee Paid $107.00 Park Dedication $0.00 issued By: ' Data 07/26/2006 FInal/O.P. 00/00/0000 ❑ Permit Voided I Parcel Id#07000800D0 In the perforrLnce of this work I agree to perform all work pursuant to rules governing the described construction. While the Cl of Oshkosh has no authority to enforce easement restrictions of which it Is not a party,if you perform the work described in his permit application within an easement,the City strongly urges the permit applicant to contact the easement holder(s)an to secure any necessary app" Is before st ' suc 'vity. Signature necessary Date 7b"-46 Agent/Owner Address 110 E FERNAU AVE OSHKOSH WI 54901 -0000 Telephone Number 235-3170 i 2oF�, Exhibit b To schedule inspections please call the inspection Request line at 236-5128 noting the Address,Permit Number,Type of Inspection(ice.Footing,Service,Final,etc.),Access into Building if Secure(how do we gain entry),your Name and Phone Number. Unless specified otherwise,we will assume the project Is ready at the time the request is received. Work may continue if the inspection is not performed within two business days from the time the project is ready. ,�---� OP ID:AW • A1CC)ORGE DATE(MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE 12!14!11 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies)must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 920-235-6461 NAME:CT Thomas J Pupeter CPCU Thomas Insurance Group 920-235-3186 PHONE 920-235-6461 FAX 303 Pearl Avenue (Arc,No.Exd: (Arc,No): 920-235-3186 PO Box 3387 ADDRESS:tpupeter @thomasinsurancegroup.com Oshkosh,WI 54903-3387 PRODUCER BLACK-7 Thomas J. Pupeter,CPCU CUSTOMER ID#: INSURER(S)AFFORDING COVERAGE NAIC# INSURED Black Teak Properties INSURER A:General Casualty Company 24414 c/o Megan H Lang INSURER B: P.O. Box 1099 INSURER C: Oshkosh,WI 54903 INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUER' POLICY NUMBER POLICY EFF POLICY EXP LIMITS LTR INSR WVD (MMIDDIYYYY) (MMIDDIYYYY) GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 A X COMMERCIAL GENERAL LIABILITY X CFB0994495 11/01/11 11/01/12 DAMAGE l G RENTED 100,000 PREMISES(Ee occurrence) $ CLAIMS-MADE X OCCUR MED EXP(Any one person) $ 5,000 PERSONAL&ADV INJURY $ 2,000,000 GENERAL AGGREGATE $ 4,000,000 GEN'L AGGREGATE LIMIT APPLIES PER. PRODUCTS-COMP/OP AGG $ 4,000,006 POLICY PRO- LOC $ JECT AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) ANY AUTC BODILY INJURY(Per person) $ ALL OWNED AUTOS BODILY INJURY(Per accident) $ SCHEDULED ALTOS — PROPERTY DAMAGE $ HIRED AUTOS (Per accident) NON-OWNED AUTOS $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-WADE AGGREGATE DEDUCTIBLE $ . RETENTION $ $ WORKERS COMPENSATION WC STATU- OTH- AND EMPLOYERS'LIABILITY TORY LIMITS ER YIN ANY PROPRIETORIPARTNER/EXECUTIVE E.L.EACH ACCIDENT $ OFFICERIMEMBER EXCLUDED? N I A (Mandatory In NH) E L.DISEASE-EA EMPLOYEE $ If yes,describe under DESCRIPTION OF OPERATIONS below E .DISEASE-POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES (Attach ACORD 101,Addidonal Remarks Schedule,if more space is required) RE: 421 N Main Street City of Oshkosh is an additional insured. CERTIFICATE HOLDER CANCELLATION CITYOSH SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Oshkosh THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City Clerk ACCORDANCE WITH THE POLICY PROVISIONS. 215 Church Avenue Oshkosh,WI 54901 AUTHORIZED REPRESENTATIVE Thomas J. Pupeter,CPCU ( ©1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25(2009/09) The ACORD name and logo are registered marks of ACORD