HomeMy WebLinkAboutEncroachment/Hotovec/0901240000 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: Hotovec Date: December 16, 2014
1611 Clairville Road Pro'ect:
Oshkosh, WI 54904-9006 From: Carol Marchant, Adm. Assistant
Re: Encroachment Agreement
Attn: Dale Hotovec
Please find: � Attached ❑ Under Separate Cover
❑ Copy of Letter � Contracts ❑ Amendment ❑ Report ❑ Agenda
❑ Meeting Notes ❑ Photos ❑ Mylars ❑ Change Order ❑ Plans
❑ Specifications ❑ Estimates ❑ Diskette ❑ Zip Disk ❑ Other
Quantit Descri tion
1 Co of full executed Encroachment A reement for 206 West 12 Avenue
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)
Inspections (copy)
City Attorney (copy)
� . NI�I�III�IIIICI'llll� il'I
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- Encroachment Agreement �-h::�?J�L�� �
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Document Nun�bcr
RE(�TSTEFt'S �F�ICE
WI[�lIV�SAG� COUNTY, {NI
R��QRDED Ot+l
12j�.z/�i��4� a$;�8 aM
jULIE PA�EL
REGTSI'ER DF [�EEDS
REC�RDIfVG �E� �Q.��
PA!".,E�. �
Recordin .1rea
Nan►e and Return Address
�{p„R6�
City Attorney's Officc
Oshkosh,�VI54903-I130
9ogaizaaooa
Parcel 1deiUiflcatton NumUer
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska, Assistant City Attorn;;y
City of Oshkosh, Wisconsin
�-a
Nove»aber 18, 2014 1
- REV�CABLE ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh{City}, and Hotovec, LLG(Hotovec).
The parties enter inta this agreement for$1.00 and other good and valuable consideration,
the receipt of which is acknowledged.
Hotovec is the fee owner of the property commonly known as 2Q6 V1lest 12�'Avenue
("Proper�y"}, and with a description as follows:
The South Thirty-sever�(37}feet of Lots Twenty-two(22),Twenty-three
(23) and Twenfy-four �24) of Block Fifty-fNe (55) in the Plat of the
ORIGINAL THIRD WARD, in the Ninth Ward, Gity of Qshkosh,
Winnebago County, Wisconsin, per Leach's Map of 18�4, excepting
therefrom the West Five (5) feet of said Lot Twenty-two (22).
PIN: 900901240000
Adjoining the Property along its South boundary is a public right-of-way used for
various public utilities, public sidewatks, and a public vehicular way commonly known as
12�h Avenue. The City owns and/or is responsible for maintenance of the right of way for
12th Avenue and therefore has the authority to enter into this Agreement.
Hofovec or a previous ownerltenant of the Property attached awnings, second floor
fire escape platform, and a lighted sign extending into the City's public ri�ht of way
(Projecting Objeets). Hotovec proposes to remove old awnings and install new awnings
that will project over and extend into the public right-of-way a total distance of four (4,0}
feet. The second floor fire escape platform and the projecting lighted sign will not be
altered, but is incfuded in this Agreement to bring them into conformance with the City's
encroachment requirements. This Agreement is necessary because no structures or
objects, including these awnings; platform, ar sign are allowed to project inta a public right
of way without the City's permission.
The City of Oshkosh has reviewed the Projecting Objects as described in this
document, and will allow the pfacement of the requesfed Projecting Objects subject to the
terms and conditions identified in this agreement. Parties agree that al(of fhe Cify's terms
and conditions in this document are to be considered ma#erial. Specific terms and
conditions of this agreement between City and Hotovec foltow.
1. The City grants permission to Hotovec to install awnings, and retain the existing
fire exit platform and fighted sign or�the Property projecting into the right-of-way
of West 12«' Avenue varying distances as described in this Agreement or its
attachments, but in no event shall anything ext�nd more than four (4) feet,
provided that these Projecting Objects remain in the exact same tocation and is
in all respects materially similar to the sign design and specifications as
praposed. The Projecting Objects shall have a minimum sidewafk clearance of
nine(9}feet twa(2)inches. Drawings and descriptions of the Projecting Objects
allowed are attached hereto as Exhibit A.
2. The Gity's permission for this Projecting Objects is contingent upon the initial,
and continuing, campfiance with all applicable local, state, and federal codes
and rules. The Projecting Objects shal!comply with City Ordinances, including
Nove►xber 18, 2019 2
but not limited to requirements for zoning, permifs, structures, signs, projecting
- � signs, Sections 30-11 and 30-27 of the Municipaf Code.
3. Hotavec agrees that i�is solely responsib(e for the installation and maintenance
of the Projecting Objecfis, and that it is solety responsible for any and all
persona! or property damage caused by the Projecting Objects. Hotovec's
responsibilify includes actions taken by Property tenants or others using the
Rroperty, or any persons us�ng the pubtic street or sidewalk.
4. The Hotovec is solely responsibie for securing, maintaining, repairing, and
replacing the Projecting Qbjects so that they project into the public right-of-way
in a safe and aesthetically approved manner. The City may inspect and notify
Hotovec of necessary mair�tenance or repairs, bu#is not obligated to do so. The
City's enforcement remedies for issues related to the Projecting Objects are not
limited to the terms of this Agreement. The City's permission and approval of
the Projecting �bjects is not related to Hotovec's responsibility for the short and
long term stability and safety of the Projecting �bjects.
5. Hotovec 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 repiacement of public
utilities or facilities in the right-of-way will need ta occur,the City agrees to make
reasonable efforts to notify Hotovec of these activities so that Hotovec may
remove ar otherwise protect the Projecting Objects if affected. If Hotovec elects
to remove or otherwise protect the Projecting 4bjects, such_aations must be
taken within the timeframe for the City's anticipated work. However, the City
shall not be responsible for any damage ta the Projecting Objects, or any
structure or hardware to which the Projecting Objects are attached, related to
the City's actions in its right of way. The City has no obfigation, but shail be
allowed to remave, at its sole discretion, the Projecting Objects for the purpose
of maintenance, repairs, and replacement of utilities and facilities within the right
of way. Hotavec sha(I be responsible far reinstaiting/reattaching the Projecting
Objects in those circumstances where the City removes the Projecting �bjects.
The City shali be reimbursed by Hotovec for a(I eosts and expenses related to
removing or protecting the Projecting Objects. Hotovec gives the City
permission to enter, acoess, and alter the Property even if it is not in the right of
way for the sale purpose of removing or protecting the Projecting Objects. �
6. The City may revoke its perm'rssion al{owing the Projecting Qbjec#s for any of the
following reasons:
a. The City's use of the right-Qf-way prohibits, at its discretian,fhe continued
location of the Prajecting Objects;
b. Loca(, state, or federa� r�ttes, laws, or gu�delines relating to public
sidewalk or street ciearances or distances prohibi#the continued iacation
of the Projecting Objeets;
c. Hotovec fails to properly maintain, repair, or replace the Projecting
Objects as determined by the Cify;
d. Hotovec fails to provide the City wi#h annual written proof that #he
Projecting 4bjects are covered by the required insurance.
e. Hotovec is in violation of the�erms of this Agreernent.
Noveftrber 18, 201� 3
�7. Hotovec releases the City of 4shkosh, its employees, agents,elected officials,
- and authorized voiunteers from ali debt,claims,demands,damages,actions and
causes of action whatsoever which may result from the Projecting Objects.
Hatovec shati protect and hold#he City of 4shkosh harmless agains#ai1 actions,
claims and demands of any kind or character whatsoever which are related to
the Projecting Objects.
8. Both parties understand and agree that accidents and incidents occurring on
City rights vf way rnay cesufit in lawsufts or threats af lawsufts against the City.
Therefore, Hotovec 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,action,or claim refated to the Projectin��bjects. This indemn�cation is
broad, and shall include damages, attorney's fees and costs,and defense costs.
The payrnents required of Ho#ovec by fh�is paragrapfi are due no later than 30
days after written request for such indemnification. Hotovec agrees that this
paragraph shall be iiberally construed in favor of the City of 4shkosh, in
consideration of the priv�lege granted by the Gity under this Agreement.
9. At a(Ltimes during which the PrQjecting Objects encroach into the right-of-way,
Hotovec's property liabiiity insurance shall cover all potentiai liabilities related to
tne Projecfing Objects. Hotovec's insurance shall provide reasonable coverage
for potential darnages to persons and property cause wholly, or in part, by the
Projecting Objects. Minimum insurance caverage related to the Projecting
Ok�jects shall be $5fJ0,�00 far each occurrenee for� bodily injury and property
damage liabiiity and$500,000 generat aggregate. Hotavec sMaf!include the City
of Oshkosh as an additional insured on its policy for claims, liabilities, and
damages related tv the Rrojecting �bjects. Hotovec shall annually provide the
City wifh proof of insurance for the Projecting Objects.
10. The eity's permission is personal to Hotovec fn its capacity as the owner of the
Property, and cannot be transferred or assigned to any other person or entity,
whether voluntarily or involuntari(y except as may be identified or described in
this Agreement. Hotovec's rights contained in this agreement do not attach to
property and do not :run with the land. Except as otherwise described in this
P�qreement, permission €or the Projec#ing abjects is revoked immediately and
without notice as of the time that any person or entity other than Hotovec
becomes a fee owner, whether in whole or in pa�t, of the prvperty at 206 West
12�h Avenue. Revocafion of permission for the Projecting 4bjects wifi also occur
when the Property ownership changes to a separate entity in which Hotavec is
the sofe or partial owner, sharehalder, or member.
11. Hotovec's responsibilities pursuant to this agreement extend to other persons,
contractors, and agents perForming work on Hotovec's behatf and related ta the
Projecfing Objects, as welt as any tenant on the Property.
12. Hotovec remains responsible for the ac#ions ar inactions o#any tenant that is
related to this Agreemenf.
13. This Agreement is soiely for the benefit af the parties to this agreement, and it is
not intended to benefit any third party.
NoventBer 18, ZO�� 4
�14. The election to en#orce or nat 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
righ#relating to the Projecting Objects in the future.
15. This Agreemen# shall incorporate and adopt all of the City's immunities and
limitations pravided to municipalities within the Wisconsin S#atutes, regardless of
whether a claim is based upon contract, tort, ar other fheory.
This Agreement shail not run with the land, but may be recorded with the Winnebago
County Register of Deeds for notice purposes only at the City's discretion.
This agreement shall become effective upon the last date a party signs below.
[SIGNATURE PAGE FC}LLOWS]
1Vovember 1 S, 21t1� 5
� OWNER:
H�TOVEC, LLC
1611 Clairvilfe Road
sh sh, Wis ns" 44-�6
Dale Hotovec, Member
STATE OF WISCONSlid )
} ss.
WINNEBAGO GOUNTY )
Personally came befare me th€s \\��^day of `aQ��o.w��a,� ,2014,the above-named Dale Ho#ovec,to me
known to be the person(s}who executed the foregoing document and acknowled the same.
�n ...► e �`�.1�.\�11_��!
Notary Public,Stafe oi Vvisconsin
My Commission expires:. o�\2-T' 1\b
ciTY aF osH�cosH
By: ^�.—_ �,p!,Y��!���.. And:
�
Mark A. Rohloff, City Manager . Ci Clerk
STATE OF WISCONSIN ) ��a' �� ���
)ss.
WINNEBAGO C011NTY }
Personaliy came before me this _�'� day of �?.CPm1fJP� , 2094, the above-named MARK A.
f�OHLOFF,CITY MANAGER,AND AAMELA R.UBRIG,CITY CLERK,otthe City of Oshkash,a municipal corporation,
to me known to be the persons who executed the toregaing insirument, and to me known t�be such officers of said
carporatfon, and acknowfedged that fhey executed #he foregoing instnament as such officers as tf�e deed of said
corporatfon,by its auttwrity.
.�r�tA� �9'm.c�
Notary Public, State of W�sconsin
ANOREA SM?H My Commission expires:
Noury�
Sbte of Wbca�in ,
November 18, 20I� 6
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