HomeMy WebLinkAboutExcel Properties LLC/Encroachment 223 N Main St 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: Excel Properties LLC Date: April 30, 2015
491 S. Washbum�Street Pro'ect:
Oshkosh, WI 54904-6733 From: Carol Marchant, Adm. Assistant
Re: Encroachment Agreement
Attn: Randall Schmiedel 223 N. Main Street
Please find: � Attached ❑ Under Separate Cover
❑ Copy of Letter � Contracts ❑ Amendment ❑ Report ❑ Agenda
❑ Meeting Notes ❑ Photos ❑ Mylars ❑ Change Order ❑ Plans
❑ Specifcations ❑ Estimates ❑ Diskette ❑ Zip Disk ❑ Other
Quantit Descri tion
1 Co of full executed Encroachment A reement for 223 N. Main 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)
iiiiiiii�
Encroachment Agreement ` `, .��;�5 ; i �'
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REtiI57E6t'S OFFI[.E �
WINNFBAGO COUNTY� WI
� RECOIkDED ON
04/2J%2015 9:61 AM
NLIE PAGEL
REGISTE2 OF DEEDS
. RECORDING FEE 30.00
PAGE5: 10
RnoNin Are�
Name utl Rel�ro AdJnu
City Attorney'e OfOce
P.O.Box I130
OshkosM1 \VISJ901-IUO
C�°-r�
. 90100130000
P�ad tdaelifia�ion Number
CITY OF OSHKOSH
AND
- PROPGRTY OWNER
This document drafted by:
David J. Praska, Assistant City Attomey
City of Oshkosh, Wisconsin
March S, 2015 1 � �
REVOCABLE ENCROACHMENTAGREEMENT
This agreement is between the City of Oshkosh ("Cit�'), and Excel Properties, LLC
("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 223 North Main
Street ("Property"), and more particularly described as foilows:
Lot One (1), Block Two (2), according to the recorded Subdivision of
Jackson's Replat of the Original Plat, in the First Ward, in the City of
Oshkosh, Winnebago County, per Leach's Map of 1894.
The Property is a corner lot, with NoRh Main Street along its east boundary, and
High Avenue along its noRh boundary. Both North Main Street and High Avenue are
public rights-of-way used for various public utilities, public sidewalks, and public vehicle
traffic. The City currently owns and/or is responsible for maintenance of both rights of way
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 Main Street and
High Avenue rights-of-way, including wrapping around the corner, no more than three feet
(3') from the face of the building. The owner makes this request because no structure or
object, including the proposed awning, is allowed to project into a public right-of-way
without the City's permission.
The City of Oshkosh has reviewed the Owner's request as described in this
document, and will allow the placement of the requested Projecting Awning subject to the
terms and conditions identified in this P�qreement. 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 to attach an Awning to the building on
the PropeRy which will project into the rights-of-way of Main Street and High
Avenue, but only if 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 nine feet
three inches (9'3"), or other distance required by code or City policy. A drawing
of the Projecting Awning allowed is attached hereto as Exhibit A.
2. The Awning shall extend no more than three (3) feet from the face of the
building into the right-of-way, except where it wraps around the corner of the
building,where the distance may slightly increase to allow a consistentflow from
the Main Street side to the High Avenue side.
3. The Projecting Awning's close proximity to traffic signals at the intersection of
Main Street and High Avenue requires the following, additional,
requirements/conditions:
a. The Awning shall always remain a solid black color;
b. The Awning shall not be illuminated;
c. It is not uncommon for the traffic signal to be struck by vehicles.
March 5, 2015 2
Therefore, it is likely that the intersection's traffic signal may fall or be
pushed into the Awning. The City will in no circumstance be responsible
for any damage to the Awning related to the public right-of-way, including
vehicular and pedestrian traffic and the intersection's traffic control
device(s). The owner is solely responsible for ail damages, and shall hold
the City harmless for any damage to the Awning and/or the building, or
damages related to the Awning and/or building.
d. To the extent that it may be approved by the Department of Community
Development, the only graphic that may be included on the Awning will
be the number associate with the building's street address, which is
"223." This graphic may only be placed on the Main Street side of the
Awning, and shall not be placed on the High Avenue side or around the
corner connecting the Awning's Main Street side with the High Avenue
side.
4. 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 tor permits, structures,signs,awnings, projecting
awnings, Chapter 30-37 and Chapter 30-27.
5. The Owner agrees that they are solely responsible for the installation and
maintenance of the Projecting Awning, and that they are solely responsible for
any and all personal or propeAy damage caused by the Projecting Awning. The
Owner's responsibility includes actions taken by Property tenants or others using
the Property.
6. The Owner is solely responsible for securing, maintaining, repairing, and
replacing the Projecting Awning. The City is not responsibte or Iiabie for lhe
Awning or any damage it experiences, or it causes. The fact that the City will
permit and approve the Projecting Awning does not mean that the City dces, or
intendsto, warrantorguarantytheAwning. TheOwnerissolelyresponsiblefor
the short and long term stability and safety of the Projecting Awning.
7. The City understands that the Owner may have one or more tenant in the
building, and that one or more tenant may be involved with the payment or
installation of the Awning. Any agreement between the Owner and any tenant is
completely between the Owner and Tenant. The City, for its paR, will always
look to the Owner for compliance. Any delay of the City in enforcing any rights
herein, or in working with any tenant, shall not alter the City's ability to seek
compliance from the Owner.
8. The Owner acknowledges and agrees that public utilities and facilities, including
the street and sidewalk, in the 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 othervvise protect the Projecting Awning if affected. If the Owner
elects to remove or othenvise protect the Projecting Awning, such actions must
be taken within the timeframe for the City's anticipated work. However, the City
shall not be responsibie for any damage to the Projecting Awning, or any
structure or hardware to which the Projecting Awning is attached, related to the
March 5, 2015 . 3
City'sactionsinitsrightofway. TheCityhasnoobligation, butshallbeallowed
to remove, at its sole discretion, the Projecting Awning for the purpose of
maintenance, repairs, and replacement of utilities and tacilRies within the right of
way. The Owner shall be responsible for reinstalling/reattaching the Projecting
Awning in those circumstances where the City removes tne 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 his Property that is not in the right of way
for the sole purpose of removing or protecting the Projecting Awning.
9. The City is allowed to revoke its permission for the Projecting Awning for any of
the following reasons:
a. The City's use of its public rights-of-way prohibit the continued Ixation of
the Projecting Awning; .
b. The City's use of its public utilities prohibit the continued location of the
Projecting Awning;
c. The Projecting Awning presents unreasonable safety issues related to
persons or other property;
d. Local, sfate, or federal rules, laws, or guidelines relating to public
sidewalk or street clearances, uses, or distances prohibit the continued
location of the Projecting Awning;
e. The Owner fails to property maintain, repair, or replace the Projecting
Awning;
f. The Owner fails to provide the City with annual written proof that the
Projecting Awning is covered by ihe required insurance;
g. Traffic on adjoining or nearby streets and/or sidewalks experiences
changes making the location of the Awning unrealistic(including,without
limitation, any change in traffic flow on High Avenue);
h. Other public facility, public safety, or traffic safely issues as determined at
the City's discretion.
10. The Owner releases the Cily of Oshkosh, its employees, agents, elected
oHicials, and authorized volunteers from all debt, claims, demands, damages,
actions and causes of action whatsoever which may result from the Projecting
Awnings. The Owner shall protect and hold the Ciry of Oshkosh harmless
against all actions, claims and demands of any kind or character whatsoever
which are related to the Projecting Awning.
11. Both parties understand and agree that accidents and incidents occurring on
Cily rights of way 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 Projecting Awning. This indemn�cation 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.
12. At all times during which the Projecting Awning encroaches into the right ofway,
the Owner's property liability insurance shall cover all potential liabilities related
Mm•ch 5, 20I5 4
to the Projecting Awning. The Owner's insurance shall provide reasonable
coverage for potential damages to persons and properly 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 Iiability and $500,000 general aggregate. The Owner shall include lhe
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.
13. The City's permission is personal to the Owner, and cannot be transterred or
assigned to any other person or entity, whether voluntariiy or involuntarily. The
Owner's rights contained in this agreement relate to the Owner signing this
document, and do not altach to propeRy or run with the land. Because this
attaches to the Owner and not to a tenant, this Agreement will remain in effect
with the change of tenants. Permission for the Projeding 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
whofe or in part, of the property at 223 North Main Street. Any delay in the City's
enforcement of this Agreement shall not adversely affect its right to pursue
compliance with the Owner. Revocation of permission for the Projecting Awning
will also occur where the Owner forms an entity of which she is the sole or partial
owner.
14. The Owner's responsibilities pursuant to this agreement extend to other
persons, contractors, and agents performing work on Owners behalf and related
to the Projecting Awning, as well as any of the Owner s tenants.
15. The Owner remains responsible for any actions taken by any tenant or property
of any tenant that are related to this Revocable Encroachment Agreement.
16. This agreement is solely for the benefit of the parties to this agreement, and it is
not intended to benefit any third party.
17. Tne 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 shali not act as a waiver of any rights to exercise any
right relating to the Projecting Awning in the future.
18. This agreement shall adopt and incorporate all immunities and limitations
provided to municipalities within the Wisconsin Statutes, regardless of whelher a
claim is based upon contract, tort, or other theory.
This agreement shall not run with the iand.
This agreement shall become effective upon the last date a party signs below.
[SIGNATURE PAGE FOLLOWS]
Ma•cH 5, 2015 5
OWNER: ;.,`QON,r1EaEN�I.
Excel Properties, LLC - '� ,�AR y �';' ���.
' -, �:�� „ - `
�_ __-- PUBL .
Randall Schmiedel, Member �nr`-- _.
STATE OF WISCONSIN ) � °rF OF. �
) ss.
WINNEBAGO COUNTY ) �
Pemonallycamebekremalhis �`� dayof AP�`� ,2015,iheabove-namedRandallSchmiedel,
to me known to ba the pereon(s)who executed and authenticaled Ihe foregoin9 documenl and acknowledged ihe same
on behalf of Excel PropaNes,LLC.
%- D�--;�
Nolary Public,Stale�of Wlsconyin
My Commission expires: 'J�7�1�
CITY OF OSHKOSH —�
By: ���--�Y-���i And: � A�1 Y� ��� � )
Marl A. Rohloff, City Manager Pamela R. Ubrig, City C erk
STATE OF WISCONSIN ) .
)ss.
WINNEBAGOCOUNTY ) � �
Personally came Defore me Ihis ��day of �iI.IVi"-i � _, Y01�, Ihe above-namad MARK A.
� ROHLOFF,CITYMANAGER,ANDPAMELAR.UBRIG,CITY��ERK,oftheCityof ahkosh,amunMlpalcorporaGOn,
lo me known to be ihe persons who exewted and aulhenlicated Ihe foregoing document and ecknowledged Ihe same
on behalf o�ihe City o(Oshkosh. / _�
�� i.i 2-�_ ��97/!-2?
_�
Notary Public,Winnebego Co.,WI
MyCOmmisaionexpirea/IS: ,� �/,2 -/'�
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