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HomeMy WebLinkAboutEncroachment/Baer Brother, LLCCITY OF OSHKOSH LEGAL DEPARTMENT 215 CHURCH AVENUE, P.O. BOX 1130, OSHKOSH, WI 54903-1130 PHONE: (920) 236-5115 FAX (920) 236-5106 To: Baer Brother, LLC 401 N. Main Street Oshkosh, WI 54901 Attn: Aaron Baer/Jason Baer LETTER OF TRANSMITTAL Date: November 5, 2015 Pro'ect: From: Carol Marchant, Adm. Assistant Re: Encroachment Agreement 401 N. Main Street 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 These are being transmitted as indicated below: ❑ For Approval � For Your Use ❑ As Requested ❑ For Review 8� Comment Remarks: cc: City Clerk (original) Public Works, Engineering (copy) Planning (copy) City Attorney (copy) . nocument Num6er Encroachment Agt�eement CITY OF OSHKOSH AND FROPERTY OWNER This document drafted by: David J. Praska, Assistant City Attorney City of Oshkosh, Wisconsin October I5, 201 S � �� ►�� � �������i��i� i ���� 8 2 4 7 4 0 5 ix:4176752 1700fi05 RECaISTER'S OFFICE WIfYP1EBAG0 £OUNTY, WI RECORDED ON 11(OZ/2015 9:17 AM ,]ULIE PAGE! REGISTER OF DEEDS RECdRDING FEE 30.Q0 PAGESs 8 Recording Area �. Yame and Return Address CityAtforuey`s Office P.O, Bor 1130 Osl�lcosh. \VI 54903-1130 9a�000xoaoo P�rccl Ideiitificalion Niin�bcr n,� V ., REVOCABLE ENCROACHMENTAGREEMENT This agreement is between the City of Oshkosh {"City"), and Baerbrother, LLC ("Owner"}. The parties enter into this agreement for $1.04 and other good and valuable consideratian, the receipi of which is acknowfedged. The Owner is the fee owner of the property commonly known as 401 Norfh Main Street ("Property"), and more particulariy described as foilaws: Lot One (1), according to Map of Cottrill's Subdivision of Lot One {1} of Block 44, in the Seventh Ward, in the City of �shkosh, Winnebago County, Wisconsin, excepting therefrom that portion conveyed by Transportation Project recorded as Doc. No. 1505059 and by Relocation Order recorded as Doc. No. 1506051. The Praperfy is a corner lot, wifh North Main Street along its east boundary, and Algoma Avenue afong its south boundary. Bath North Main S#ree# and Algoma Avenue are public rights-of-way used for various public uti�i#ies, public sidewalks, and public vehicle traffic. The City currently owns and/or is respons��le for maintenance of both rights of way and therefore has the authority to enter into this agreement. The Owner will be adding a coffee roasting component to its business and as a resuft desires to install two (2) Encroachments into the Main Street public right-of-way. The Encroachments are a sign (Projecting Sign) and a vent (Projecting Vent), with each attached to the building on the Property and wiil project over and extend into the Main Street right-of-way. The Owner is requesting the City's approval because no structure or object, including the proposed sign and vent, are allowed to project into a public right-of- way wiihout the City's permission. The Ci#y of Oshkosh has reviewed the Owner's request as described in this Agreement, and will allow the pfacement of the requesfed Projecting Sign and Projecting Vent, subject.to the terms and conditions identified in this Agreement. Bo#h 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. The City grants permission to the Owner to attach a Sign to its building which will project into t�e Main Street right-of-way. The City's permission is conditioned on the instal�ation of the Projecting Sign being materially similar to the Sign design and specifications submitted for tha City's approval, as weii as compliance with all o#t�er terms of this Agreement. 2. All parts of, or related to, the Sign shall have a minimum sidewalk clearance of eight feet (8'0"}, or other distance required by Munici�al Code or City policy. The Sign cannot extend more than for�y-six (46) inches from the face of the building into the Main Street right-of-way, and with a face no taller than thirty-four (34) vertical inches. A drawing of the allowed Projecting Sign is attached as Exhibit A. October 1 S, 201 S 2 r �l 3. The City also grants permission to the Owner to install one ven# pipe which wiil extend through the building wall and into the Main Street right-of-way. The City's permission is conditioned on the installation of the Projecting Ven# being materially similar to the Vent design and specifications submitted for the City's approval, as well as compliance with all other terms of this Agreement. 4. All parts of, or related to, the Vent shall have a minimum sidewalk clearance of eight feet (8'0"}. The Vent cannot extend more than eighteen (18} inches from the face of the building inio the Main Street right-of-way. A drawing ofi the allowed Projecting Vent is attached as Exhibit A. 5. The Projecting Vent shall be designed and aperated in such a manner so that no smoke, vapor, liquid, substances, or materials of any kind shall be released from the Vent that wiil fall, or in any way travel to or land on any member of the public using the right-of-way, o� on the pubfic street or sidewalk, or on any public facility, inciuding without limitation poles, benches, and landscaping. This prohibition is not meant ta include "odors" released from the Vent, provided the "odors" to not also carry prohibited materials or substances. 6. The City's permission for ihe Projecting Sign and Projec#ing Vent is contingent upon the initial, and continuing, compfiance with all applicable local, state, and federal codes, rules, and policies. The Projecting Sign and Projecting Vent shall comply with City Ordinances, including but nat limi#ed to requirements for building codes, health codes, permits, structures, signs, awnings, projecting awnings, and Municipal Codes, including Chapter 34-37 and Chapter 30-27. 7. The Owner agrees that they are solely responsible for the installation and maintenance of i�e Projecting Sign and Projecting Vent, and that they are solely responsible for any and all personal or property damage caused in whole or in part by the Projecting Sign and Projecting Vent. The 4wner's responsibility includes actions taken by any tenants, customers, licensees, invitees, or others using the Property. 8. The Owner is solely respons'tble for securing, rnaintaining, repairing, and replacing the Prajecting Sign and Projecting Vent. The City is not responsible or liable for the Sign or Vent, or any damages that either of fhe Encroachmen#s receive or cause. The City's permission and approval of these Encroachments is not intended be a warranty or guaranty of the appropriateness of these Encroachments for this location. The Owner is solely respansible for the short and long term stability and safety of the Projecting Sign and Projecting Vent, and is also respansible for protecting the public using the Main Streef right-of-way and protecting public faci�ities within fhe right-of-way from any adverse effect of the Encroachments. 9. The Owner may have one or more tenants in the building on #he Property, or employees, agents, vendors, or contractors, who may be involved with the installation, maintenance, responsibility, use, or operatian of the Sign and Vent. Any understanding or agreement between fhe �wner and any oiher person or entity is completely between the Owner and the other person and the City, for its part, will always look to the Owr�er for compliance. Any delay of the City in enforcing any rights herein, or in working with any other person associated with the Owner, shall not alter the City`s abiiity to seek com�liance from the Owner. October• 1 S, 201 S 10. The Owner acknowledges and agrees that public utilities and facilities, including the s#reet, sidewalk, light poles, benches, and landscaping, located in the right- of-way are subject to maintenance, repair, and replacement. In the event that maintenance, repair, or replacement of public utilities or facili#ies in the right-of- way will need ta occur, the City agrees to make reasonable efforts to notify the Owner of these activities so #hat the Owner may remove or otherwise protect #he Projecting Sign and Projecting Vent, if affected. If the Owner elects to remove or otherwise protect the Encroachments, such actions must be talcen within the timeframe for the City's anticipated work. However, the City shall not be responsible for any damage to the Projecting Sign or Projecting Vent, or any structure or hardware fo which they may be attached, related to the City's actions in its right-of-way. The City has no obligation, but shall be aliowed to remove, at ifs sole discretion, the Projecting Sign and/or Projecting Vent for the purpase of maintenance, repairs, and replacement of utilfties and facilities within the right-of-way. The Owner shall be responsible for reinstalling/reattaching the Projecting Sign and Projecting V�nt in those circumstances where the City removes the Encraachments. The City shall be reimbursed by the Owner for all costs and expenses related to removing or protecfing the Encroachments. The Owner gives the City permission to enter, access, artd alter his Property that is � not in the right of way for the sole purpose of removing or protecting the Encraachments. 11. The City is allawed to revoke its permission for the Projecting Sign and/ar Projec#ing Vent for any of the following reasons: a. The City's use of its public rights-of-way prohibit the continued location of the Projecting Sign and/or Projecting Vent; b. The City's use of its public utilities prohibit the continued location of the Projecting Sign and/or Projecting Vent; c. The Projecting sign and/or Projecting Ve�t present unreasonable safety issues related to persons or other property; d. The City decides, at its sole discretion, that the Projecting Vent are allowing smoke, vapar, liquid, substances, or materials of any kind except "odors," to escape from the Vent and fall tawards or attach to any person or property including, without limiiation, the introduction or addition of moisture on a public surface which results in slippery condiiians; e. Local, state, or federal codes, rules, laws, or guidelines prohibit the continued location o� the Projec#ing Sign and/or Projecting Vent; f. The Owner fails to prape�ty maintain, repair, or replace the Projecting Sign and/or Projecting Ven#; g. The Owner fails to provide the City with annual written proof that the Projecting Sign and Projecting Vent are covered by the required insurance; h. Traffic on adjoining or nearby streets and/or sidewalks changes in a manner that makes the locatian of the Projecting Sign andlor Projecting Vent disruptive, or a safety hazard, or otherwise adversely affects the health, safety, and welfare of the public; i. Other building code, public facility, public safety, ortraffic safety issues as determined by the City at its sole discretion. 12. The Owner releases the City of �shkos�, its employees, agen#s, elected October I5, 201 S 4 ,. '., officials, and authorized volunfeers from all debt, claims, demands, damages, , � actions and causes of action whatsoever which may result #rom the Projecting ' Sign and Projecting Vent. The Owner shall protect ancf hold the City of Oshkosh : harmless against all actions, claims and demands of any kind or character whatsoever which are related fo the Projecting Sign and Projecting Vent. 13. Both parties understand and agree that accidents and incidents occurring on City rights of way may result in lawsuits or threa#s of lawsuits against the City. Therefore, the Owner agrees to indemnify and pay to the City ai1 amounts that the City may be required, obligated, or adjudged as responsible to pay, for any dispute or action related ta the Projecting Sign and Projecting Vent. This indemnification is broad, and shall include damages, attorney's fees and costs, and defense cosis. The payments required of the Owner by this paragraph are due no later than 30 days after wri#ten request for such indemnificaiion. The Owner agrees that this paragraph shall be liberally construed in favor of the Ciiy of Oshkosh, in consideration of the privilege gran#ed by the City under this agreement. 14. A# all times during which the Projecting Sign and/or Projecting Vent encroach into the right-of-way, the �wner's prope�ty liability insurance shall cover all potential liabilities related to the Encroachments. The Owner'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 shali be $500,OQ0 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 addi#ional insured on its policy for claims, liabilities, and damages related to the Encroachments. The Owner shall annually provide the City with proof of insurance for the Encroachments. 15. The City's permission is persanal to the Owner, and cannot be transferred or assigned to any other person or entity, whether voluntarily or involuntarily. The �wner's rights contained in this agreement relate to the Owner signing this document, and do not attach to property or run with the land. Because this attaches to the Owner and nat to a tenant, this Agreement will remain in effect in the event there is a change of tenants. Permission for the Encroachments is revoked immediately and without notice as of the time that any person or entity other than the "Owner" iden#ified in this document becomes a fee owner, whether in whole or in part, of the property at 401 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 Sign and Projecting Vent will also occur where the Owner farms an entity of which they are the sole or partial Owner. 16. The Owner's responsibilities pursuant to this Agreement extend to other persons, contractors, and agents performing work on Owne�'s behalf and related to the Encroachments, as well as any of the Owner's tenants. 17. The Owner remains responsible for any actions taken by any agent or Tenant that are refated to #�is Agreement. 18. This Agreement is soiely for the benefit of the parties to this Agreement, and it is not intended to benefit any third party. October 1 S, 2015 5 � 19. The election to enforce or not enforce any term of ihis Agreement, or any statute, cade, or rule, as welf as the timing of sucY� enfarcement, shall be at the City's sole discretion and shall nof act as a waiver of any rights to exercise any right relating to the Projecting Sign and Projecting Vent in the future. 20. This agreement shall adopt, incorporate, and apply all immunities and limitations provided to municipalities within the Wisconsin Statutes, regardless of whether a claim is based upon contract, tort, ar other theory. This agreement shall not run with t�e land. This agreement shall become effec#ive upon the lasf date a party signs below. (SfGNATURE PAGE FOLLOWS] Octobe�• 1 S, 201 S b OWNER: BAERBl�O� ER, LLC � ,... , , , �___._--_rv..__..___w f �- �._. _.....i.� . ! % Aaron Bae , ber STATE OF WISCONSEN ss. WINNEBAGQ COUNTY � �� t ��_1 .`' .,L,,�._m_ \ Jason Baer, Member Personaily came �efore me this I� day of v�''�r�" `, 2015, lhe above-named Asron Baer, to me fcnown to be the person(s) who executed and authentica th fore�g doc ent a know�lgdged the sarne on behalf of Baerbrother, I.LC. , //�� iiA q 1 ' ���/�f �- 1 �" otary Public, State of Wisc�� +/�'I n My Commission expires : �Oti / STATE OF WISCONSIN ) ss. WINNEBAGO COUNTY ) , PersonalEy came before me this'� day of v�-► Q�':�'� `, 2015, e above-named Jason 8aer, to me known to be the person(s} who executed and authentica ih foregoin docu nt a d a wledg d the sarne on behalf of Baerbrother, LLC. otary Public, State of Wiscory�i� 1/� � 1� My Commission expires : V Ul � CITY OF OSHKOSH By: �'�--;�a�'r'L�— Ma A. Rohloff, City Manager STATE OF WISCONSIN WiNNESAGO COUNTY } ) ss. ) And: �,%�J� � � L�e�'�5�._� � � �' 2 Pamela R. Ubrig, City Cler � Personally came before me this� �P�� day of ^ !- , 2015, the above-named MARK A. ROHLOF�, C1TY MANAGER, AND PAMELA 3�. 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