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HomeMy WebLinkAboutEncroachment/0902310000 CITY OF OSHKOSH LEGAL DEPARTMENT 215 CHURCH AVENUE, P.O. BOX 1130, OSHKOSH, WI 54903-1130 PHONE: (920)236-5115 FAX(920) 236-5106 LETTER OF TRANSMITTAL To: Christine's Date: March 5, 2014 1601 Oregon Street Project: N/A Oshkosh, WI 54902 From: Carol Marchant, Adm. Assistant Re: Encroachment Agreement Attn: James Dennis & Janice Bocek Please find: ® Attached ❑ Under Separate Cover ❑ Copy of Letter ® Agreement ❑ Amendment ❑ Report ❑ Agenda ❑ Meeting Notes ❑ Photos ❑ Mylars ❑ Change Order ❑ Plans ❑ Specifications ❑ Estimates ❑ Diskette ❑ Zip Disk ❑ Other Quantity Description 1 Copy of Encroachment Agreement at 1601 Oregon Street These are being transmitted as indicated below: ❑ For Approval ® For Your Use ❑ As Requested ❑ For Review&Comment Remarks: cc: City Clerk (original) Public Works, Engineering (copy) Planning (copy) City Attorney (copy) RECEIVED MAR 0 6 2014 }: CE, CITY CLE]EtK II 1 1111 II I Q Encroachment Agreement Tx:�lOG6 53 Document Number 1658579 REGISTER'S OFFLCE WINNEBAGO COUNTY, WI RECORDED ON 02/25/2014 11:12 AM JULIE PAGEL REGISTER OF DEEDS PFrnRr1TNr. FEF 3n_nn Recording Area Name and Return Address City Attorney's Office Oshkosh,WI 54903-1130 90902310000 Parcel Identification Number CITY OF OSHKOSH AND PROPERTY OWNER This document drafted by: David J. Praska, Assistant City Attorney City of Oshkosh, Wisconsin February 19, 2014 1 REVOCABLE ENCROACHMENT AGREEMENT This agreement is between the City of Oshkosh (City), and James G. Dennis and Janice J. Bocek (collectively, 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 1601 Oregon Street (Property). The Property is in the City of Oshkosh, Winnebago County, Wisconsin, and is described as follows: The North Fifty (50) feet of Lots Ten (10), Eleven (11) and Twelve (12) of Block Sixty (60) in the plat of the ORIGINAL THIRD WARD, in the Ninth Ward, City of Oshkosh, per Leach's Map of 1894. ORIGINALLY a part of the North East 1/4 of Section Twenty-six (26) Township Eighteen (18) North, of Range Sixteen (16) East. Adjoining the Property along its East boundary is a public right-of-way used as a public street known as Oregon Street, as well as for various public utilities and public sidewalks. The City currently owns and/or is responsible for maintenance of the right of way for this section of Oregon Street and therefore has the authority to enter into this agreement. The Owner desires to erect an awning (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 two feet (2') from the face of the building. No structure or object, including the proposed sign, is allowed to project into a right of way without the City's permission. The City of Oshkosh has reviewed the Owner's request as described in this and supporting documents, and will allow the placement of the requested Projecting Awning 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 for attaching an Awning to the building on the Property which will project into the right-of-way of Oregon Street, provided that the 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 other distance required by code or City policy. The general location of the Projecting Awning is identified on the attached Exhibit A. A drawing of the Projecting Awning allowed is attached hereto as Exhibit B. 2. The City's permission for this Projecting Awning is contingent upon the initial, and continuing, compliance with all applicable local, state, and federal codes and rules. The Projecting Awning shall comply with City Ordinances, including but not limited to requirements for permits, structures, signs, Projecting Awnings, Chapter 30-37 and Chapter 30-27. 3. The Owner agrees that it is solely responsible for the installation and maintenance of the Projecting Awning, and that it is solely responsible for any and all personal or property damage caused by the Projecting Awning. The February 19, 2014 2 Owner's responsibilities include those actions taken by tenants and others using the Property. 4. The Owner is solely responsible for securing, maintaining, repairing, and replacing the Projecting Awning. The City's permission and approval of the Projecting Awning does not affect or supersede the Owner's short and long term liabilities and responsibilities for the stability and safety of the Projecting Awning. 5. The Owner acknowledges and agrees that public utilities and facilities, including those located underground as well as the street and sidewalk located in the public 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 Awning if affected. If the Owner elects to remove or otherwise protect the Projecting Awning, 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 Awning, or any structure or hardware to which the Projecting Awning is attached, related to the City's actions in the public right-of-way. The City has no obligation, but shall be allowed to remove, at its sole discretion, the Projecting Awning for the purpose of maintenance, repairs, and replacement of utilities and facilities within the public right-of-way. The Owner is responsible, at Owner's expense, for reinstalling/reattaching the Projecting Awning in those circumstances where the City removes the Projecting Awning. The City shall be reimbursed by the Owner for all costs and expenses related to removing or protecting the Projecting Awning. The Owner gives the City permission to enter, access, and alter Owner's Property, including structures thereon, that is not in the public right-of- way for the sole purpose of removing or protecting the Projecting Awning. 6. The City is allowed to revoke its permission for the Projecting Awning for any of the following reasons: a. The City's use of the right-of-way prohibits the continued location of the Projecting Awning; b. Local, state, or federal rules, laws, or guidelines relating to public sidewalk or street clearances, distances, or mounting prohibit the continued location of the Projecting Awning; c. The Owner fails to property maintain, repair, or replace the Projecting Awning; d. The Owner fails to provide the City with annual written proof that the Projecting Awning 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 Awning. 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 Awning. 8. Both parties understand and agree that accidents and incidents occurring on City public rights-of-way may result in claims, damages, lawsuits or threats of February 19, 2014 3 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 Projecting Awning. 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 Awning encroaches into the public right- of-way, the Owner's property liability insurance shall cover all potential liabilities related to the Projecting Awning. The Owner's insurance shall provide reasonable coverage for potential damages to persons and property cause wholly, or in part, by the Projecting Awning. Minimum insurance coverage related to the Projecting Awning 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 Awning. The Owner shall annually provide the City with proof of insurance for the Projecting Awning. 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 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 1601 Oregon Street. Revocation of permission for the Projecting Awning will also occur where the Owner forms an entity of which it becomes the sole or a partial owner of the Property. 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 Awning, as well as any of the Owner's tenants and their employees, agents, guests, visitors, or those using the Property for any purpose. 12. The Owner remains responsible for any actions taken by any tenant or property of any tenant that are related to this Revocable Encroachment Agreement. 13. This agreement is solely for the benefit of the parties to this agreement, and it is not intended to benefit any third party. 14. 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 Awning in the future. 15. This agreement shall incorporate and apply all immunities and limitations provided to municipalities within the Wisconsin Statutes, regardless of whether a claim is based upon contract, tort, or other theory. February 19, 2014 4 This agreement shall not run with the land. This agreement shall become effective upon the last date a party signs below and may be recorded with the Winnebago County Register of Deeds for notice purposes. [SIGNATURE PAGE FOLLOWS] February 19, 2014 5 ' OWNER: ames C\ De I's tom•-. ` �' Jq s G. Dennis STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY ) Personally came before me this '01.11- day of ' P11)10‘"I ,2014,the above-named James G.Dennis,to me known to be the person(s)who executed the foregoing oc ment nd ack wled the sa e. Notary Public, State of Wiscon§jn49/0 My Commission expires • 01 Janice J. Bocek J nice J. Boce STATE OF WISCONSIN ) ss. WINNEBAGO COUNTY ) r'f3,0 Personally came before me this1�4 day of I' �JA 4 ,2014,the above-named Janice J.Bocek,to me known to be the person(s)who executed the foregoingrnent a a�clytowledg he s e. Notary Public, State of Wiscoptll(1.7 My Commission expires CITY OF OSHKOSH By: a- �,,I� And:I_r, !I 1 ■∎ - �) Mark . Rohloff, City Manager Pamela R. Ubrig, City lerk STATE OF WISCONSIN ) )ss. WINNEBAGO COUNTY ) Personally came before me this.. 1.1144 day of f/j[t l,?r - , 2014, 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 by its authority. /' Notary Public, State of Wisconsin My Commission expires:_: `7 February 19, 2014 6 4 N 100,0' - �_ r 15.0' 0'-135. I Q c _21_0 coo N h. c\I L 65.0' _.___ r D it f ^® s w',63. v.E ; O 5 • ► 0 '1%(:)-0 150.0' 201T.0 „,_. ,,,,,.., . -,..„.. pr000,e ti 'V." �' - t3,tt" >< `awn n •.:t ra h cil cu 150.0' CO Q C5) , 1 ( rn CD co o CO r Legend —Street Pavement �. Water Fillings Storm Sewer WW Sanitary Manholes — —sidewalk - LEAD -- —lhater Ma ns Sanitary Fittings — oca Water Hydrants p�MAIN (� Storm Manholes ® Sanitary Laterals Water Valves E--.°—MINI STORM ❑ Lalerals.Storm ..........PRIVATE LEAD Sanitary Sewer .........STUB t l _ ; N o I") .r 0i0j J �� -r 1ici > ,1 0 1 in=0.01mi 1in=30 ft The City of Oshkosh creates and maintains GIS maps and data for its own use. They may show the approximate relative location of property boundaries and other feature from a variety of sources, not be sufficient or printing Date:2/14/2014 0,f HKOlH These map(s}/datasets are provided for information purposes only and my appropriate for legal, engineering, or surveying purposes. They are provided 'AS-IS' without Prepared by City of Oshkosh,WI ON THE WATER warranties of any kind and the City of Oshkosh assumes no liability for use or mrsuse. J:1GISSGIS_Base_Maps\Planning Base Map.mxd User:elizabeths Exhibit S f '' ,4J C .�, - —. ` �s.1 :. 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