HomeMy WebLinkAboutEncroachment/Bergstrom Teutonic Imports CEUV
CITY OF OSHKOSH _ SEP 14 2012
LEGAL DEPARTMENT '
215 CHURHONE N9 0)236-511 51130,FAX(920) 236-510- CLERK'S OFFICE
LETTER OF TRANSMITTAL
To: Bergstrom Teutonic Imports Inc. Date: September 13, 2012
3139 S. Washburn Street Project:
Oshkosh, WI 54904 From: Carol Marchant, Admin. Assistant
Re: Encroachment Agreement
Attn: John Bergstrom
Please find: ® Attached ❑ Under Separate Cover
El Copy of Letter ® Agreement ❑ Amendment ❑ Report ❑ Agenda
❑ Meeting Notes ❑ Photos ❑ Mylars ❑ Change Order ❑ Plans
❑ Specifications ❑ Estimates El Diskette El Zip Disk ❑ Other
Quantity Description
1 Signed Encroachment Agreement
These are being transmitted as indicated below:
❑ For Approval ® For Your Use ❑ As Requested ❑ For Review&Comment
Remarks:
Signed: (ia,,y.e-lhal '
cc: City Clerk (original)
Engineering (copy)
Planning (copy)
City Attorney (copy)
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REGISTER'S OFFICE
Encroachment Agreement WINNEBAGO COUNTY, WI
Document Number RECORDED ON
O9/11/ 0U 09:24 AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 30,00
Recording Area
Name and Return Address
City Attorney's Office
Oshkosh,WI 54903-1130
91365000000
Parcel Identification Number
•
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Assistant City Attorney
City of Oshkosh, Wisconsin
•
May 4, 2012 1
/1
ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh (City) and Bergstrom Teutonic
Imports, Inc., a Wisconsin Corporation(Bergstrom). 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.
Bergstrom is the fee owner of Parcel Number 91365000000, which is the property
commonly known as 3139 South Washburn Street, Oshkosh (Property).
The southern portion of the Property includes an area that was formerly City street
right of way described generally McClone Drive that was vacated pursuant to Common
Council Resolution 07-201 on July 24, 2007 (Vacated ROW). After the McGlone Drive
public right of way was officially vacated, it was transferred to the Property. The McGlone
Drive public right of way vacation is described in Document number 1442626,filed with the
Winnebago County Register's Office on July 26, 2007. The Vacated ROW and recorded
vacation documents are attached as Exhibit A and are incorporated into this document.
After the vacation of the McGlone Drive right of way,the City retained an easement
over, under, and through the vacated right of way as described in Resolution 07-201 and
as allowed by State law,with the relevant statutory section currently numbered as Section
66.1005, Wisconsin Statutes. The City's retained easement is for the purpose of using,
installing, maintaining, repairing, and replacing current or future public utilities located
within the Vacated ROW.
Bergstrom seeks permission from the City to allow it to encroach upon the City's
easement over, under, and through the Vacated ROW. Bergstrom's encroachments
include driveways,drive aisles,parking areas,and private utilities as identified on Exhibit B.
The City agrees to allow such encroachments provided it is clear that the approval of this
encroachment is revocable and is subject to the conditions identified or referenced in this
agreement are followed.
The City has reviewed Bergstrom's request and will allow the placement of the
requested driveways, drive aisles,parking areas, and private utilities identified in Exhibit B
to this agreement. It is agreed that all of the City's terms and conditions in any part of this
document are material. Specific terms and conditions of this agreement between City and
Bergstrom follow.
1. The City grants permission to Bergstrom to encroach into the City's public utility
easement for the purpose of constructing driveways,drive aisles,parking areas,
and private utilities on,over,and under the Vacated ROW. The City consents to
the encroachments provided they are and remain materially similar to the
location, design, and specifications submitted for the City's approval.A drawing
of the approved driveway, drive aisle, parking area, and private utility
encroachments is attached hereto as Exhibit B.
2. The City's permission for the encroachment is contingent upon the initial, and
continuing, compliance with all applicable local, state, and federal statutes,
codes, ordinances, and rules.
May 4, 2012 2
3. Bergstrom agrees that it is solely responsible for the installation and
maintenance of the driveway, drive aisles, parking area, and private utility
encroachments, and that it is solely responsible for any and all personal or
property damage caused by the existence of these encroachments.
4. Bergstrom is solely responsible for constructing,securing,maintaining, repairing,
and replacing the encroachments. The City does not accept or assume any
liability or responsibility for the encroachments,to Bergstrom or any third party,
through its permission to locate the encroachments in the City's public
easement.
5. Bergstrom acknowledges and agrees that City's public utilities and public
facilities within the Vacated ROW easement are subject to ongoing investigation,
maintenance, repair, replacement, or installation of new or additional facilities.
The parties agree to make good faith efforts to coordinate changes to or
disruptions related to the encroachments. The City agrees to make reasonable
efforts to provide advance notification to Bergstrom in the event that the City
undertakes any work or action related to the public facilities within the Vacated
ROW so that Bergstrom may take any necessary actions to protect, remove,or
reroute some or all of the private encroachments in the City's easement. The
removal, rerouting, replacement,or protection of any encroachment shall be at
Bergstrom's expense. If Bergstrom elects to protect, remove, or reroute any of
its encroachments, such actions must be taken within the timeframe for the
City's ant;cipated work. However, the City shall not be responsible for any
damage to any encroachment, or any real property or structure to which the
encroachments are attached, related to the City's actions in its easement.
6. In the event that Bergstrom elects, or fails, to remove, reroute, or protect the
encroachments, or in the event of an emergency, the City may take all
reasonable actions to remove,reroute,or reasonably protect the encroachments
for the purpose of maintenance, repairs, and replacement of utilities and
facilities within the Vacated ROW easement. Removal of encroachments by the
City shall be at Bergstrom's expense. Bergstrom shall be responsible for
repairing, replacing, reinstalling or reconstructing the encroachments in those
circumstances where they are removed or rerouted by the City. Bergstrom shall
reimburse the City for all costs and expenses related to removing, rerouting, or
protecting the encroachments. Bergstrom gives the City permission to enter,
access, and alter the Property outside of the Vacated ROW easement to the
extent reasonably necessary for the purpose of removing, rerouting, or
protecting the encroachments.
7. The City may revoke its permission for the encroachments for any of the
following reasons:
a. The City's use of the Vacated ROW utility easement prohibits the
continued location of the encroachments;
b. The City determines that an encroachment adversely affects the
functioning of the public utilities in the easement;
May 4, 2012 3
c. Future additional encroachments are added without permission;
d. Local, state, or federal rules, laws, or guidelines relating to any public
facility located in the easement, or any other local, state, or federal law
prohibit the continued location of the encroachments;
e. Bergstrom fails to property maintain, repair, or replace the
encroachments;
f. Bergstrom fails to provide the City with annual written proof that the
encroachments are covered by the required insurance; or,
g. Any other lawful reason or circumstance.
8. Bergstrom 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,
including the removal and!or rerouting of the encroachments. Bergstrom 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
encroachments.
9. Both parties understand and agree that accidents and incidents related to the
City's public facilities easement, or the City's facilities located in the Vacated
ROW easement, may result in lawsuits or threats of lawsuits against the City.
Therefore, the Bergstrom 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 or caused by the encroachments. This
indemnification is broad, and shall include damages,attorney's fees and costs,
and defense costs. The payments required of Bergstrom by this paragraph are
due no later than 30 days after written request for such indemnification.
Bergstrom 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.
10. At all times that the driveway, drive aisles, parking areas, and private utilities are
located in the easement, Bergstrom's liability insurance shall cover all potential
liabilities related to the encroachments. Bergstrom's insurance shall provide
reasonable coverage for potential damages to persons and property cause
wholly,or in part, by the encroachments.Minimum insurance coverage related to
the encroachments shall be$500,000 for each occurrence for bodily injury and
property damage liability and $500,000 general aggregate. Bergstrom shall
include the City of Oshkosh as an additional insured on its policy for claims,
liabilities, and damages related to the encroachments. Bergstrom shall annually
provide the City with proof of insurance covering the encroachments.
11. Bergstrom's responsibilities pursuant to this agreement extend to other persons,
contractors, and agents performing work on Bergstrom'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.
May 4, 2012 4
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 encroachments in the future.
14. This agreement shall incorporate and adopt all immunities and limitations on
liability provided to municipalities within the Wisconsin Statutes, regardless of
whether a claim is based upon contract, tort, or other theory.
This revocable encroachment agreement shall inure to the benefit of,and be binding
upon, the parties hereto, their successors, tenants, subtenants, licensees, and assigns.
[SIGNATURE PAGE FOLLOWS]
May 4, 2012 5
Dated this - day of u 5 t , 2012.
BERGSTROM TEUTO IC IMPORTS, INC.
John F. Bergstr , CEO
STATE OF WISCONSIN )
) ss
baq p COUNTY ) aa l
Personally came before me this o)0 day of A U s 1 ,2012,the above-named John F Bergstrom
and , to me known to be the persons who executed the foregoing document and
acknowledged the same.
Notary Public, (J v ne bo.j S isconsin
My Commission: ;/15 Co.,/t to
CITY OF OSHKOSH
By: la,.---,6K41-6-4/ And:.;v_ ;10 +gig ._A. Rohloff, City Manager Pamela R. Ubrig, City. erk
STATE OF WISCONSIN )
SS.
WINNEBAGO COUNTY )
Personally came before me this.3/ s'day of ,2012,the above-named Mark A.Rohloff,
City Manager, and Pamela R.Ubrig,City Clerk, of the City orOshkosh,a municipal corporation,to me known to be
the persons who executed the foregoing instrument, and to me known b such office of said corporation, and
acknowledged that they executed the foregoing instrument as such o cer s the dee f said corporatio , by its
authority.
Notary Public,Winnebago Co.,,W
My Commission expires/is: "r)L/
May 4, 2012 6
• 1 .+r1-2EsaEa
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VACATE MCGLONE DRIVE REGISTER'S OFFICE
*.,1.—;* , WINNEBAGO COUNTY, WI
- RECORDED OH •
Document Nuniber DocumoitTitte
-- - 07/26/2007 12t03PH
• JULIE PAGEL
• • REGISTER OF DEEDS
•
. RECORDING FEE . 17.00
TRANSFER FEE 4
•• t--1. :; p OF PAGE$•
•
AU0 1 0 2007 1 r
621t1(
. _� I1!J1 Recording Area •
oi'f' o!,.aR{{rp,Ot-FIi:iE. • flame and iketumAddress
• • • • IxY'CLERK'S OFFICE
•
. PAMELA. R. UIJIG •
Re O.. BOX 1130. "
• • . OSHKOSH • WI $4903-1130
Parcel identification Number(PIN}
• •
• • ,
•
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This infonnatton must be completed bysubmitten document title,name&ram address.and PIN(If required). Other Information such as
the granting clause,legal description,etc.,may be placed on this first page of the document or meY be pieced on additional pages of the
document. Rote: Use of this cover page adds one page to your document and S2.00Jo the recording fee.Wisconsin Statutes;69.43(2m).
WRbA NB Rev,11812004 - -
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Exhibit 1ofi •
______ .,
JULY 24, 2007 07-201 RESOLUTION
(CARRIED 7-0 LOST LAID OVER WITHDRAWN )
•
PURPOSE: FINAL RESOLUTION VACATING MCGLONE DRIVE
INITIATED BY: BERGSTROM AUTOMOTIVE
PLAN COMMISSION RECOMMENDATION: Approved
WHEREAS, pursuant to Section 66.1003(4) of Wisconsin Statutes, the Common
Council has heretofore initiated proceedings on June 12, 2007 at a regular meeting of
the Common Council to vacate and discontinue McGlone Drive in the City of Oshkosh
as described below; and
WHEREAS, a public hearing on the passage of such resolution has been set by
the Common Council, which hearing was set for 6:00 PM in the Council Chambers of
the City Hall, Oshkosh, Wisconsin, on the 24th day of July, 2007 and written notice of
such meeting was duly served on the owners of all of the frontage of the lots and lands
abutting upon that portion thereof sought to be discontinued as provided by law; and
WHEREAS, a public hearing was duly.held pursuant to said notice at the time
and place therefore affixed and all persons so served and interested were then and
there given an opportunity to be heard; and
WHEREAS,-a proper notice of the pendency of said petition for vacation and
•
discontinuance and map covering the proposed vacation was duly filed in the Office of
the Register of Deeds for Winnebago County, as required by the Wisconsin Statutes;
and
WHEREAS, the lots and lands abutting that portion of said street or alley within
••
said City affected by this resolution are in the 13th Ward, City of Oshkosh, the
description of said street or alley heretofore set out in this Resolution.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that It is hereby declared that since public interest requires it, that portion of
the following described street and/or alley in the 13th Ward, City of Oshkosh,
Winnebago County, Wisconsin, is hereby vacated and discontinued, reserving unto the
City of Oshkosh and any utility affected by this Resolution, the right to maintain, service,
repair, add, replace, or install in the future, sanitary sewer, storm sewer, water main and
other utility facilities in said vacated streets or alley, subject to the restriction that no
improvements are allowed within the reserved area, including but not limited to, building
structures, driveways, parking areas, landscaping or fences. Any improvements shall
be allowed only by special exception of the Board of Public Works.
Exhibit ) 0e-9
JULY 24, 2007 07-201 RESOLUTION
CONTD
McGlone Drive. between South Washburn Street and Insurance Way
That portion east of the easterly line of Insurance Way and west of the westerly line of
S. Washburn St., also south of and adjacent to Lot 1 of CSM 5370, recorded as Doc.
No. 1286812, Register of Deeds, north of and adjacent to Lot 2 of CSM 5868, recorded
as Doc. No. 1392625, Register of Deeds, and north of and adjacent to Lot 1 of CSM
6054, recorded as Doc. No. 1428306, Register of Deeds,all in the 13th Ward, City of
Oshkosh, Winnebago County, Wisconsin.
BE IT FURTHER RESOLVED that the City Clerk record a certified copy of this
Resolution accompanied with a map showing the location of said vacated street or alley
in the Office of the Register of Deeds for Winnebago County.
•
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Exhibit
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This map It neither a F gang recorded map nor MCCIone-Drive
a survey and it is not intended to be used as one, Street Vacation
This drawing is a compilation of records,data ,
and information located in various city,county
And state offices and other sources affecting !silt �c 1
the area shown and it is to be used for reference
City of Oshkosh Wisconsin
Commit/0y Development • E1(n% 1 , /6/07
purposes only.The City of Oshkosh is not re- /`
sponsible for any inaccuracies herein contained.
If diserepencits are found,please contact the 0 boo Fiat •
City of Oshkosh. Created by-dpb
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