HomeMy WebLinkAboutEncroachment/0700320000 orl�lnq� _ � ,t rk= I 11111111111111
CapiC - Corn) . y eJ.
$ Tx 4�80 8 3
2
1612513
Encroachment Agreement
REGISTER'S OFFICE
Document Number WINNEBAGO COUNTY, WI
RECORDED ON
O8/210012 0946 AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 30,00
Recording Area in& c.
7 Name and Return Address
City Attorney's Office
Oshkosh,WI 54903-1130
90700320000
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Assistant City Attorney
City of Oshkosh, Wisconsin
Date: June 27, 2012 1 l l
• REVOCABLE ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh ("City") and Marilyn J. Backus
("Owner"). 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.
The Owner is the fee owner of the property commonly known as 517 North Main
Street and 519 North Main Street, Oshkosh, Wisconsin, parcel number 90700320000
("Property"). A summary description of the Property is as follows:
Lot Four(4) and the North Ten (10)feet, front and rear, of Lot Three (3)
all in Block Forty-three (43) in HENNING'S PLAT Lot 2 Block 43, in the
Seventh Ward, City of Oshkosh, subject to a Right of Way over and
across the West Twelve and One-half(12 %)feet thereof as described
in Agreement recorded in Winnebago County Registry in Volume 232
on Page 270 and subject to rights granted by Party Wall Agreement
recorded in Winnebago County Registry in Volume 193 on Page 306
and subject to rights granted by Deed recorded in Winnebago County
Registry in Volume 197 on Page 428.
And
The South Twenty (20) fee, front and rear, of Lot Three (3) of Block
Forty-three (43) in HENNING'S PLAT Lot 2 Block 43, in the Original
First (now Seventh) Ward, City of Oshkosh, per Leach's Map of 1394,
subject to Right of Way over and across the West, or rear, portion of
Lot, and to Party Wall rights of record.
The Property was formerly comprised of one or more separate parcels which have
been consolidated into a single parcel. It is a commercial property in downtown Oshkosh
that is leased and occupied by a tenant.
The Owner, or a predecessor in interest, previously granted to the City two
easements over a portion of this Property during the course of the City's reconstructing the
public parking lot adjoining the Property's westerly boundary. The easements benefit the
City, the Property, and the public by through parking, sidewalk, and related public facilities.
The size, location, and description of the City's easements are identified and described as
follows (collectively, Easement):
EASEMENT DESCRIPTIONS ATTACHED AS EXHIBIT A
And fully incorporated herein
The Owner desires to place an outdoor deck, patio, seating area, and/or related
improvements on and over a portion of the Easement in a manner substantially conforming
to the size, shape, appearance, and location as identified in Exhibit B, which is attached to
this Agreement (Encroachments).
Date: June 27, 2012 2
The Encroachments shall be constructed and maintained in a manner within the
Easement that will not interfere with or affect the use, function, and maintenance of the
City's parking lot, five (5) foot sidewalk, and related public lighting and electrical facilities.
The Encroachments within the Easement shall also be as designed and identified in Exhibit
C, which is attached to this Agreement.
The City has reviewed the Owner's request and will allow the placement of
Encroachments subject to the terms and conditions identified in this Agreement. Both
parties agree that all of the City's terms and conditions in this Agreement 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 construct improvements which will
encroach into the City's Easement, provided that these Encroachments are
materially similar to the location, design, and specifications submitted for the
City's approval. Drawings of the allowed Encroachments are attached hereto as
Exhibits B and C.
2. The City's permission for these Encroachments is contingent upon:
a. The Owner will relocate the existing light/utility pole and underground
conduit to a location approved by the City. Such work, along with all
necessary repairs to the City's parking lot, sidewalk, and other facilities
shall be at Owner's expense; and
b. The submission of a water drainage and snow removal plan acceptable
to the City; and
c. Compliance with all City requests and requirements during the review and
approval process; and
d. the initial, and continuing, compliance with all applicable local, state, and
federal codes and rules including, without limitation, all City Ordinances.
3. The Owner agrees that she is solely responsible for the installation and
maintenance of the Encroachments, and that she is solely responsible for any
and all personal injury or property damage caused by the existence of the
Encroachment. The Owner's responsibility includes the results of actions taken
by Property tenants or other third parties at the Property.
4. The Owner is solely responsible for constructing, maintaining, repairing, and
replacing or removing the Encroachments. The City's permission for and
approval of the Encroachment does not affect or supersede the Owner's
responsibility for the short and long term stability and safety of the
Encroachments.
5. The Owner acknowledges and agrees that the City's public parking lot, sidewalk,
and other public utilities and public facilities within the Easement are subject to
maintenance, repair or replacement. When such circumstances arise, the City
agrees to make reasonable efforts to notify the Owner of these activities so that
the Owner may protect or remove the necessary portions of the Encroachments.
Protection, repair, or removal of Encroachments shall be at the Owner's cost. If
Date:June 27, 2012 3
the Owner elects to protect or remove the Encroachments, such actions must be
taken within the timeframe for the City's anticipated work. The City shall not be
responsible for any damage to the Encroachments related to the City's actions
within its Easement.
6. The City may, at its sole discretion but at the Owner's expense, take all actions it
believes is necessary up to an including the removal of Encroachments for the
purpose of construction, maintenance, repairs, and replacement of the City's
facilities within the easement. The Owner assumes all risks associated with the
Encroachments and shall be responsible for repairing, reinstalling or
reconstructing the Encroachments. The City shall be reimbursed by the Owner
for all costs and expenses related to removing, protecting, or working around the
Encroachments. The Owner gives the City permission to enter, access, and
alter portions of the Property outside of the easement for the sole purpose of
removing, protecting, or working around the Encroachments.
7. The City is allowed to revoke its permission for the Encroachments, either in
whole or in part, for any of the following reasons:
a. The City's use of the Easement prohibits the continued location of the
Encroachment(s);
b. Local, state, or federal rules, laws, or guidelines relating to the City's use
of the Easement, or any other local, state, or federal law prohibit the
continued location of the Encroachments, either in whole or in part;
c. The Owner fails to property maintain, repair, or replace the
Encroachments;
d. The Owner fails to provide the City with annual written proof that the
Encroachment is covered by the required insurance.
8. 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
Encroachments. 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 any Encroachments.
9. Both parties understand and agree that accidents and incidents related to the
City's Easement, or the City's facilities located in the Easement, 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 Encroachments within the Easement. 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.
Date: June 27, 2012 4
10. At all times that the Encroachments are located within the Easement,the Owner
shall have property liability insurance covering all potential liabilities related to
the Encroachments. The Owner's insurance shall provide reasonable coverage
for potential damages to persons and property cause wholly, or in part, by the
parking lot structure. Minimum insurance coverage related to the parking lot
structure 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 Encroachments. The Owner shall annually provide the
City with proof of insurance for the parking lot structure and landscaping.
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 Encroachments, as well as successors and assigns, and those with any
interest in the Property.
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 parking lot structure and landscaping in the
future.
14. This agreement shall adopt and 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.
SIGNATURE PAGE FOLLOWS
Date: June 27, 2012 5
Dated this,-2?9 day of i_t —e , 2012.
MARILYN it B:.CKUS
, ' / .4
„_.,_ ............. ...=__ .4,--- ,1' d
M-rilyn f /ckus
0 fLEG-061
STATE OF WISCONSIN )
ss
WINNEBAGO COUNTY )
Mu 4-1r1v OrV I-K .-J'
Personally came before me this 2-- day of 5`'`'" ,2012,the above-named
MarilynlrBackus, to me known to be the person who executed the foregoing document and
ack , . , /
f0»•,^ OFFICIAL SEAL �', C
BRIAN W NEWELL •
` r NOTARY PUBLIC-0 35206 Notary Public, Nl..ALr3vor-.4-t4 Co.,Wiseen3in - O�a'°"/
�;t�� COMMISSION N0.435206 rY
MY COMMISSION EXPIRES JAN.23,2013 My Commission:, tit_3 113
CITY OF OSHKOSH c"` __
By: a..--, � _ ,
And: ;erne:a° ` ' �OAM v i Ma A. Rohloff, City Manager R. Ubrig, City lerk
' STATE OF WISCONSIN )
SS.
WINNEBAGO COUNTY )
0
Personally came before me this /LI day of 4 Ct/7 0.5 4- ,2012,the above-named
Mark A.Rohioff,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, y itss
I No r authority.
Public, Winnebago Co., WI
My Commission expires/is: Z z /-/
Date:June 27, 2012 6
EASEMENTS
Document Number 1295564, Recorded with the Winnebago County Register of Deeds
office on January 21, 2004:
THAT PART OF LOT31N H NNINGS PLAT OF LOT 2,BLOCK 43 PER LEACH'S MAP OF 1894,IN THE 7TH
WARD,CRY OFOSHKOSf1,WINNEBAGO COUNTY,wawa BOUNDEOMD DESCRIBED AS FOLLOWS;
COMMENCING AT'THE S.E,CORNER OF LOT IN BLOCK43 PER LEAS MAP OF 1894,TIC NORTH
58'0655'WEST ALONG THE SOUTHERLY LINE OF SAID LOT 102.99 FT.,THENCE NORTH 00'01'1?EAST
ALONG THE WEST LIES OF LOTS 1,50 AND 48 IN BOCK 43 PER LEACH'S MAP OF 1894 AND THE WEST LINE
OF LOT 2IN HENNING'S PLAT OF LOT 21 BLOCK 43 PER DM MAP OF 1894 AFORESAID 93.41 FT.TOTHE
POINT OF BEGINNING OF THE PARCEL TO BE DESCRIBED,THENCE CONTINUING NORTH 00101'01'EAST
ALONG THE WEST LINE OF LOT 3 IN HENNII PUT OF LOT 2,BLOCK 43 PER LEACH'S MAP OF 1894
AFORESAID MO FT.,THENCE NORTH 8 5 "48"EAST 22.39 FT.,THENCE SOUTH 001235*EAST ALONG THE
WESTFACE OFA MASONRY BUILDING WALL20,40 FT„THENCE SOUTH$ '4 'WESTALONGT E SOUTH
LINE OF SAID LOT 3AFORESAID 22.47 FT,TO THE POINT OF BEGII+INING,SAID PARCEL CONTAINS 449
SQUARE FEET. (PART OF 517 N.MAIN STREET)
Document Number 1295565, Recorded with the Winnebago County Register of Deeds
office on January 21, 2004:
THAT PART OF LOT*3 AM)4 in I4aIHINcre PLAT OF LOT 2,2LOCK 43 PER.LEAC$SMAPOP 1594,IN THE
TTH WARD,CRY CP 0$HICOSH,MIIN E BAQO COUNTY,WISODNSEL WOUNDED AND(*SCREED AS FQLI.OWSS •
ALONG THE A8OUTI�LY me OF LOT 103.30�THENI LEACH'S MAP!'12”E THE WEST LINES OF LOTS 1,
50 ANO 4E IN KOOK 43 PER LEACH'S MAP OF 1494 AM)715 WEST LINES OF LOTS IMO 3 IN MIMING'S PLAT OF LOT 2,
BLOCK 43 PER LEACH'S MAP OF 1504 AFORESAID 113.41 PT.TOME POINT OF BEGINNING OF THE PARCEL TO SE
DESORIOED,THENCE CONTINUING NORTH aroma.sAs7 ALONG THE war LINES OP SAID LOTS S AND 4 IN HENNING
PLAT OP LOT 2 BLOCK 43 PER LEACH'S MAP OF 1594 AFORESAID 90.50 PT.,,?HENCE NORTH 49•sei2'EAST ALONG THE
NORTH LINE OP SAID LOT 4 AFORESAID 22.23 FT.,THENCE SOUTH 00'1276•mSTALONG THE WEST FACE OF AMASOARY
T SOUTH X126`THENCE SOUTH EAST ALONG THE WEST F ALONG
A MASSY WALL 100 F THENCE NORTH �T
ALONG 1131 SOUTH FACE OF A MASONRY WALL 1.20 FT.,THENCE SOUTH oashi '3E'EAST ALONG THE WEST PACE OF A
MASONRY WALL 20.30 AT..THENCE SOUTH W4115'WEST ALONG THE NORTH PACE C P A MASONRY WALL 5.10 FT.,
THENCE SOUTH 001225'EAST ALONG THE WEST FACE OPA MASONRY WALL,9,40 FL.THENCE NORTH 50'4T25"EAST
ALONG THE SOUTH PACE OF A MASONRY WALL 010 FT.,THENC ESOUTH 00123E'EAST ALONG THE WEST FACE OF A
MASONRY WALL 1.e0 FT.TO A POINT ON THE SOUTH LINE OF TM NORTH MOO PT.OP LOT 3 IN HENNINGS PLAT OF LOT Z,
SL CCK 43 PER LEACH'S MAP OF 1494,THENCE SOUTH 801242"MIST A[.ONG SAID SOUTH LINE 22.39 PT.TO THE POINT
OF BEGINNING,SAID PARCEL CONTAINS 030 SQUARE FEET.(PART OP 619 HAWN STREET)
Exhibit P\
/
z c
-cTs
- m
• 4-0—r---
LO
.—
LC)
Mill—
::.
C
.i5
■
N.
1. .
,... ... .
1541"
.. „..
,s' , '.',..'— i • i
.40'09—
1 4 .'• : , •. 1, ' 1,
•
M=1.11 ,'....`''',4.-••'• '-r i ,'J'• I- ;' ■.. .
. ' `,".:::".t:-.,•,„'')' ‘ .',•,,::.' ,."', 'i I
%,..•''''::-.:: ,• ■.''',,1"'.' '''' • ,,,'',';: .i • .
,, '., ',:,,, '',,', '•,... .',^-',• ' 'r'...r-'• ""-% ' .1• I ' 8
..- „, ... .
- .
i a ;,,,,,.".‘:-:_,_,],,.'''",•,, '.''. ' [:,' ,, ' ' I • .
: 0
2 C
....
CO
1111111111M111111W . E
Z
0)
-§.
,
LO g ,
L 2
co
mmilmmt-=__..
. . 2
II/
1 i —
./...Vial
11-- 1 II It
-it ...
Tfr."....‘, •.t/£--illrl--*£-.8
...—... ,
cv
in
Exhibit 3 lop3
r
a •
�— g
1--No-,B�—
ill
A ...t
1 .7.111111=.8 y I �rtNI/I
9 trOr1
!, I.:-w∎�!
I,=Mrl
;. I I MIOlIIIIt
Ili
-_I_
1`
MIMIIII■I
ttttt■.
M11111111111=1 ..
/■
•11■1111111
IMIIIIIIIIIIIIIIII
e 1/ i
IMONOMMI
I
IIIIMMOS
maw
INONOOMI
Imissamo
NOINOMIS
tint/,
•■IMIIII■
■ANMOIlln
Exhibit 5 3-0F3
. ,
\ .
i?
•
_ .
/ . .
. (
; 1
15. $ < (
I
\
7/ i.
% 2 .
. . 2
7e 0 g \ \
® . ) c • .
-17 \'/\ » ..
���«2�KS
»e:,,,,
36\ '..,':'..1
� .
$ //
Eyhibit
V).. . . . ...
giiiiiii
illilit,
1111" "
,_.
!I 1,1110
i
R
1- •
4
i
1111111111
1
I
1•
„ . .. . . : . , . • . ..- ... ,• ,.•
- -*- • -- -,•'.. "-- - - ' - - • • -• • .'.
•
. .
:-.-,,, .....,.• , -- ...--- :, .',.,,,....,,,-.;,_..',„i ...,i,-'t .'-.)-:1.••-,, ': . : . --......'•.:;',. . :: ' '-., ■ • 7. ..:* • ':'. . .' , '''...''''''' .t.63 1-Ai
a
a
C)
r:, .,: : ) : .:,: ,: : : r ., :: C.,::', . ,.:,,.. ... ' '. , . ' .'')....) ... . . ; :: ,.:'.) ,.. . . '• -.:: ''7::'..:, g-z
• ....-.:::', 11
:.',-.-.j -,,': : :' ,.•., .;',.-.',...-.:::.:'.,..Z'.'''I:::''''''.:.. '• .: -' :. .'.. . . .1.,..,. .'.1!..; •:'..:: .' ..- - ...',': .•.',. E w•.'-''• ''''': -: :.: --;.'.'' :-...,V: .'.:.:.: • • - . • .•• ,.. • . -.-„il..,-.... .. .tix.•;.1:-.);06...-- .......li:;, ... !:1 . .)
;.:-...: '‘,.:'.','. :.•'...•0 6 '-:.......•••••...:.....:..',:!; • .• . - -- • • ,. .- • . . ..:4p... . : \. • - -r:..'..;•!`'F,..,-,1:::',. .. :,.',.--;-.!--,':.:
1i..: .i.'...'.,. .',-.. i . .......::.,t19..kr.1,•40•-....:-.. • . . ...;..-.I • • • •„:, • : .. ..:. ..':,:f..''.....,..... ,-.:.:::. r,,...:.....,...,:,..i
. .
......:,...:.. ....... •i.:I-1, .i . .. • .• :••,••....... ..-.!....,....L:.:,:... - - •:,..:•-t...__ _;,_;_-1.. ,:..............,.„,„,,,:••• - ... 1 1 1 1
•. . .. .•...0,.. . •••• . ... .. ,_‘,.•• •.-.:.-• ..,.-• • - -.
....,•••• ••••:-..-: 1,4 . ...,.,4,..... . :., •• ....,. •.. , i. , A••... . •• .. ••,...:.-,.:...... .A,:---..,,...........:-.•_.:_-_,„ 1 ,•-...... . ,, .....:.-•• •....- 11M4
- - '14..,"".=t?-.4f,'....,;.,1
-:-.'.......•:••• :::*..-177.
. • 1 ,
4,........7..„. •-Ivitistitttt,i. t., i.4....:...:_: -..„.. : ,..:... ..•.......1
. ..
,.. ,.. ., ..:......._... :....,p041\\_... ,,,,_
.. . • 1
ks.. , . ,77,:14‘....:;:-...:::, .:0:::.,.:-0...., i 1, 111
. ••
, .. , . .. .. ..1 -.• -41-.- -5t
...- ., - ....A.:......k, 6,,,, ,.. tilt.,, .,. ....,,,,,,,„:.......41wit -qh-1 ...._..,..:,-'.....-::.',....,..:::......:-.7::::::.-:...”
,-......,...::..::::N.,„,,,at„. 77::,,;.. ..-z -711,11zre4..*Nlitkx..oh.... ..,.... .7....-,........:....-,...." ..,.......;. *• I
::-..::::':-. i.:..:1-: iiiNiktik,,,, -1,4%.1,-;---L**-.1ti...-,,..7'7—:. ''..... .. .... ......:-.1 .:::. :- ' ...-.-...:::': 1 is f
g
..„4-...77-:-.-... .-......,.. .---. .:. . .. . . ., . . d....„,,,...... ... .--...,-....:.....y. t !. .,,, .w,
Nitt,,,,,ik.
....---,_01.14=-7.., .7.-. .. •-..-.. ' ,......• ••-•...:i-c:'.-.: • .• -...... .. . ...• i. . ...... -..,..:-..„--77-.7::. : ........1 I 1 1 1
. , .. ... • ... . • • . . .. . . . . • ., .. ..
. .. . . . . . • .... . . . . .. ... ..
• • . . . .. . . . . . . . .
- i
. . . . . . . . .• ,.... .
• .
• . -• .. ...
. . , .
11 li
• . . . ..
.. • . . ..
•
2 II
. .
. . .
. , . ....
.. .
. . • .••• .
. _.
1166&,- 7 . • .
.... _ ....._-. -
2