HomeMy WebLinkAboutEncorachment/600 S Koeller St/0611620100 II11ILIUC +y C1erK 6
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Encroachment Agreement REGISTERS OFFICE
WINNEBAGO COUNTY, WI
Document Number RECORDED ON
04/0412013 09:19 AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 30.00
Recording Area
Name and Return Address
City Attorney's Office
Oshkosh,WI 54903-1130
90611620100
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska,Assistant City Attorney
City of Oshkosh, Wisconsin
March 27, 2013 1
ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh (City) and 600 S. Koeller Street,
LLC(Owner). The parties enter into this agreement for$1.00 and other good and valuable
consideration as described in this Agreement, the receipt and sufficiency of which is
acknowledged.
The Owner is the fee owner of the property identified with Parcel Number
90611620100 and commonly known as 600 South Koeller Street, Oshkosh (Property).
The City owns, controls, and fully uses Right of Way for purposes of maintaining and
operating street, sidewalk, and above and underground utilities and faciltiies at West 7th
Avenue, Oshkosh (ROW), which is adjacent to the Property's Southeasterly boundary.
Owner seeks to allow a portion of its parking lot, consisting of asphalt pavement and
curb, to encroach into a portion of the City's ROW (Encroachment). City agrees to allow
the requested Encroachment subject to the terms of this Agreement.
The portion of the City's ROW upon which the agreed upon Encroachment may be
located is described as (Location):
Legal Description is attached and incorporated as Exhibit A
The Property, ROW, Location, and approved Encroachment are identified in the
attached Exhibit A.
The City has reviewed the Owner's request and will allow the placement of the
requested Encroachment within the specified Location of the ROW. The approval of the
Encroachment is premised on the construction and maintenance in a manner that will allow
the ongoing functioning and maintenance of the public street, sidewalks, utilities, and all
other City uses at City's sole discretion, current or future, of the ROW. 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 a portion of its parking lot,
and specifically asphalt pavement and curb, within City's ROW and within the
Location described in Exhibit A as attached to this Agreement, provided that the
Encroachment is materially similar to the location, design, and specifications
submitted for the City's approval. Changes and/or alterations to the
Encroachment must be approved in writing in addition to any written permits,
licenses, and similar approvals that must be obtained.
2. The City's permission for this Encroachment is contingent upon the full
compliance with all applicable local, state, and federal statutes, codes, rules,
and Ordinances.
3. The Owner agrees that it is solely responsible for the installation and
maintenance of the Encroachment, and that it is solely responsible for any costs
and damages associated with the existence of the Encroachment, including
without limitation all personal or property damage.
March 27, 2013 2
4. The Owner is solely responsible for securing, maintaining, and repairing the
Encroachment, as well as replacing the Encroachment if its condition warrants.
The Owner shall remove the Encroachment and restore the ROW Location in
the event the Encroachment is no longer used by the Owner. The City does not
accept, acquire, or assume any liability or responsibility for the Encroachments,
through its permission to locate the Encroachment in the City's ROW.
5. The Owner acknowledges and agrees that public streets,sidewalks, utilities, and
facilities within the City's ROW are subject to maintenance, repair, replacement,
expansion, or extension. In the event that construction, maintenance, repair,or
replacement of public utilities and/or facilities, whether present or future, is
necessary, the City agrees to make reasonable efforts to notify the Owner of
these activities so that the Owner may protect or remove the Encroachments,
including any personal property that may be located on the Encroachment.
Protection or removal of the Encroachment shall be at the Owner's cost. If the
Owner elects to protect or remove the Encroachment, 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 Encroachment, or to any real property,
personal property, or structure associated with or surrounding the
Encroachment.
6. In the event that the Owner elects, or fails, to remove, reroute, or protect the
Encroachment and/or personal property on the Encroachment, or in the event of
an emergency, the City may take all reasonable actions to remove, reroute, or
reasonably protect the Encroachment and/or personal property on the
Encroachment for the purpose of maintenance, repairs, and replacement of any
of its utilities or facilities,whether present or future, in the ROW. All of the City's
actions in this regard shall be at Owner's expense. The Owner shall be
responsible for repairing, reinstalling, or reconstructing the Encroachment, and
for resolving all issues related to personal property, in all circumstances. The
City shall be reimbursed by the Owner for all costs and expenses related to the
Encroachment. The Owner gives the City permission to enter,access,and alter
the Property, not included in the ROW Location, for the sole purpose of
removing or protecting the Encroachment and/or personal property thereon.
7. The City is allowed to revoke its permission for the Encroachments for any of the
following reasons:
a. The City's use of its ROW prohibits the continued location of the
Encroachment;
b. The City determines that an Encroachment adversely affects the
functioning of public utilities and facilities over, under, and within the
ROW;
c. The Encroachment is changed or expanded into the ROW without
permission;
March 27, 2013 3
d. Local, state, or federal rules, laws, or guidelines relating to any public
utility or facility located in the ROW prohibit the continued Location of the
Encroachment;
e. The Owner fails to property maintain or repair the Encroachment;
f. 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
Encroachment. 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 Encroachment.
9. Both parties understand and agree that accidents and incidents related to the
City's ROW, or the City's utilities and facilities located in the ROW, and 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. 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.
10. The Owner's property liability insurance shall cover all potential liabilities related
to the Encroachment. The Owner's insurance shall provide reasonable
coverage for potential damages to persons and property cause wholly, or in part,
by the Encroachment. Minimum insurance coverage related to the
Encroachment 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 Encroachment. The Owner shall annually
provide the City with proof of insurance for the Encroachment.
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 Encroachment, 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 the terms of this Agreement, 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 relating to the Encroachment.
March 27, 2013 4
14. The City through this Agreement shall adopt, incorporate, and utilize all
immunities and limitations on liability provided to municipalities within the
Wisconsin Statutes in a manner equal to or consistent with their statutory origin,
regardless of whether a claim is based upon contract, tort, or other theory, in a
manner consistent with the statutory use.
This 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]
Drafted by:
Attorney David J. Praska
Oshkosh,Wisconsin
March 27, 2013 5
Dated thi900 day of (rC.h , 2013.
600 S. KOE LER STREET, LLC
ItAt
~. S hwab, Managing Member
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
r7
Personally came before me this 6 day of 44,CM ,2013,the above-named Grant T.Schwab,to
me known to be the person who executed the foregoing doc ment and acknpwledcged the same.
h). r t ,- C6/ -
Notary Public,Winnebago Co.,Wisconsin,
My Commission expires: -7 (1, )./`J
CITY OF OSHKOSH
By: ,jf/��?r '�-� And: . l_ 'd Ck-
Ma Rohloff, City Manager Pamela ' it Jerk
A. Y g ,
STATE OF WISCONSIN )
)ss.
WiNNEBAGO COUNTY )
Personally came before me this oday of 1 ,t^,h ,2013,the above-named Mark A.Rohloff,
f
City Manager,and rig,City Clerk,of the City of shkosh,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. bgpc--1-1
(-7
Notary Public,Winnebago Co., I /
My Commission expires: /
March 27, 2013 6
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Exhibit A