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HomeMy WebLinkAboutBoard of Regents Of UW- Wis- Oshkosh & Oshkosh 8296812 Tx:4214651 1720283 Encroachment Agreement REGISTER'S OFFICE Ancumeatllunbcr WINNEBAGO COUNTY, WI RECORDED ON 08/12/2016 9;41 AM CHRISTOPHER LARSON DEPUTY REGISTER OF DEEDS; RECORDING FEE 30.00 PAGES: 12 Recordlu Area ;tame and Muni Address City Attorney's Office PO Box 1130 Ositimsit,lV154903.1130 90104710000, 90103920000, 90104000000 Parcel Idcutificatimi Numbers CITY Or OSHKOSH AND PROPERTY OWNER This document drafted by: David J, Praska, Assistant City Attorney City of Oshkosh, Wisconsin May 17, 2016 1 �n ENCROACHMENT AGREEMENT This agreement is between the City of Oshkosh (City) and the Board of Regents of the University of Wisconsin, d/b/a University of Wisconsin Oshkosh (University). The parties enter into this agreement for$1.00 and other good and valuable consideration as described in this Agreement, the receipt of which is acknowledged. The University is the fee owner of Parcels Numbered 90104710000, 90103920000, and 90104000000, which are properties within the University campus area (collectively, Property). The Property contains student recreation and related University facilities that the University wishes to expand. Portions of parcels 90103920000, 90104000000, and 90104710000 comprise the Property and Include an area that was formerly public street right-of-way described generally old Pearl Avenue that was vacated pursuant to Common Council Resolution#1 on December 1, 1977(Vacated ROW). After the public right-of-way was officially vacated, It was thereafter attached to adjoining Property by statute. The old Pearl Avenue public right-of-way vacation Is described in Document number 507883, filed with the Winnebago County Register's Office on December 9, 1977. The Vacated ROW and recorded vacation documents are attached as Exhibit A and are incorporated into this document. After the vacation of the old Pearl Avenue right-of-way, the City retained an easement over, under, and through the vacated right of way as identified in Resolution#1 and as allowed by State law, with the relevant statutory section currently numbered as Section 66.9005, Wisconsin Statutes. The City's retained easement is for the purpose of using, Installing, maintaining, repairing, and replacing public sanitary sewer and water mains, as well as storm sewer and gas mains and fittings within the Vacated ROW. At the time of the right-of-way vacation and through the present, there are both sanitary and storm sewer, as well as water facilities located with the Vacated ROW, There are no plans, presently, to construct sanitary sewer or storm sewer collection systems, or water distribution system upgrades that would allow the segments within the Vacated ROW to be abandoned. The University seeks permission from the City to allow it'to encroach upon the City's easement over, under, and through the Vacated ROW. The expansion of the University's recreation facilities which may encroach within the Vacated ROW include artificial turf fields, perimeter fencing and lighting, drainage, and a grade beam for a dome. A site plan identifying the University's projects, Including the Encroachments, are identified on Exhibit E. The City agrees to allow such encroachments provided it is clear that the approval of this encroachment Is revocable and is subject to the conditions identified or referenced in this agreement are followed. The City will allow the placement of the Encroachments identified in Exhibit B subject to the conditions of this Agreement. In the event that the University's plans for Encroachments change during their internal approval process,the University will notify the City and both parties will enter Into good faith negotiations for the purpose of developing 1V.lay 17, 2016 2 mutually agreeable modifications to this Agreement. It is agreed that all of the City's terms and conditions In any part of this Agreement are material. Specific terms and conditions of this agreement between City and the University follow. C rants permission to the University to encroach Into the City's public 1. The City g p Y utility easement within the Vacated ROW for the purpose of expanding its student recreation facility in the manner approved by the City and described within Exhibit B. 2. The following conditions may be covered in whole or in part more generally in other parts of this Agreement, and are described for clarity purposes only. The following list is not intended to comprise all conditions placed upon the Encroachments; a. The City must have adequate access to maintain and/or reconstruct the existing facilities within the Vacated ROW; b. The University is responsible for remove/replace the Dome/Field infrastructure to facilitate City construction, or reimburse the City if it needs to perform work in emergency situations; C. The University will reimburse the City for costs of extraordinary measures necessary to limit trench width (sheet pilings, for example) related to the Encroachment; d, No storm water storage /management facilities shall be allowed above and within an area ten (10) feet measured horizontally on either side of any City utility line; e. The University recognizes the reconstruction of City utilities may need to occur In the future a different location within the Vacated ROW. As an alternative to relocating facilities within the Vacated ROW, the parties may negotiate in good faith the University's provision of additional easement areas within parcel 90104000000, or other applicable area, to the City in exchange for the City's agreement to allow the continued Encroachment which otherwise obstructs the location of City facitlies, 3. The City's permission for the Encroachment Is contingent upon the initial, and continuing, compliance with all applicable local, state, and federal statutes, codes, ordinances, and rules. 4. The University is solely responsible for constructing, securing, maintaining, repairing, and replacing the Encroachments. The City does not accept or assume any liability or responsibility for damages to or by the Encroachments,or injuries or damages to the University or any third party, by virtue of its permission to locate the encroachments in the City's public easement. May 17, 2016 3 �I 5. The University acknowledges and agrees that City's public utilities and public facilities within the Vacated ROW easement are subject to ongoing investigation, maintenance, repair, replacement, or installation of new or additional facilities by the City. The parties agree to make good faith efforts to coordinate changes to or disruptions related to the encroachments, The City agrees to make reasonable efforts to provide advance notification to the University in the event that the City undertakes any work or action related to the public facilities within the Vacated ROW to allow the University the opportunity to take any necessary actions to protect, remove, or reroute some or all of the Encroachments in the Vacated ROW. The removal, rerouting, replacement, or protection of any Encroachment shall be at the University's expense. If the University elects to protect, remove, or reroute any of its Encroachments, 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 any Encroachment, or any real property or structure to which the Encroachments are attached, related to the City's actions in the Vacated ROW. 6. In the event that the University elects, or fails, to remove, reroute, or protect the Encroachments, or in the event of an emergency, the City may take all reasonable actions to remove, reroute,or reasonably protect the Encroachments for the purpose of maintenance, repairs, and replacement of utilities and facilities within the Vacated ROW. Except for emergency circumstances, the City agrees to provide the University with advance notice of such actions and to further allow the University a reasonable amount of time to respond to such notice. Removal of Encroachments by the City shall be at the University's expense. The University shall be responsible for repairing, replacing, reinstalling or reconstructing the Encroachments In those circumstances where they are removed or rerouted by the City. The University shall reimburse the City for all costs and expenses related to removing, rerouting, or protecting the encroachments. The University gives the City permission to enter, access, and alter the Property outside of the Vacated ROW easement to the extent reasonably necessary for the purpose of removing, rerouting, or protecting the Encroachments. 7. Upon providing the University with advance notice and a reasonable amount of time to respond to such notice, the City may revoke its permission for the Encroachments for any of the following reasons: a. The City's use of the Vacated ROW utility easement prohibits the continued location of the Encroachments; b. The City determines that an encroachment adversely affects the functioning of the public utilities in the Vacated ROW; c. Future additional Encroachments are added without permission; d, Local, state, or federal rules, laws, or guidelines relating to any public facility located in the Vacated ROW, or any other local, state, or federal law prohibit the continued location of the Encroachments; e. The University falls to property maintain, repair, or replace the encroachments; or, f, Any other lawful reason or circumstance. 1Vlay 17, 2016 4 8. The University releases the City of Oshkosh, its employees, agents, elected officials, and authorized volunteers from all debt, claims, demands, damages, I actions and causes of action whatsoever which may result from the Encroachments, including the removal and/or rerouting of the Encroachments. The University 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 encroachments. 9. Both parties understand and agree that accidents and incidents related to the City's public facilities easement, or the City's facilities located In the Vacated ROW easement, may result in lawsuits or threats of lawsuits against the City. Therefore, the University agrees to hold harmless and indemnify the City all amounts that the City may be required, obligated, or adjudged as responsible to pay, for any dispute or action related to or caused by the Encroachments. The University acknowledges that these terms are one element of consideration for the privilege granted by the City under this Agreement. 10, The University's responsibilities pursuant to this Agreement extend to other persons, contractors, and agents performing work on behalf the Universitywhich Is related to the Encroachments, as well as successors and assigns, and those with any interest in the Property. 11, This Agreement is solely for the benefit of the two parties to this Agreement, and it is not intended to benefit any third party. 12. The election to enforce or not enforce, 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 to exercise any right relating to the Encroachments in the future, 13, This Agreement shall Incorporate and adopt all immunities and limitations on liability provided to governmental entities within the Wisconsin Statutes, regardless of whether a claim is based upon contract, tort, or other theory. This Revocable Encroachment Agreement may be recorded for notice purposes with the Winnebago County Register of Deeds, shall inure to the benefit of, and be binding upon, the parties hereto, their successors, tenants, subtenants, licensees, and assigns. [SIGNATURE PAGES FOLLOW] May 17, 2016 5 Dated this i day of 2016, BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN, D/B/A UNIVERSITY OF WISCONSIN - OSHKOSH (printtitle) (p int name) 11 (print name) (print title STATE OF WISCONSIN ss COUNTY Porsonal ly came before me this ar--Alk day of - 2018, the above-named to me known to be the persons who executed the foregoing document and acknowledged the same. (flotm Pulli1c,State of Wisdonsin 4.. My Commission expires: CITY OF OSHKOSH And: I,L�L'), MA A—, Rohloff, City Manager Pamela R. Ubrig, Cit y"Cleric - STATE OF WISCONSIN ) )ss" WINNEBAGO COUNTY ) Personally came before me this,�day of n -_ 2016,the above-named Mark A.RohJoff, City Manager, and Pamela R,Ubrig,City Clerk, of the City ofiOshkosh,a municipal corporation,to me known to be the persons who executed the foregoing Instrument, and to me known 10 he Such officers of said corporaflon, and acknowledged that they executed the foregoing Instrument as Such officers of said entity,by Its authority. "111FIVi1j,", Notary Public,State of Wisconsin My C omm[sslon expi res/is: 15 lzol • olAl?}, 0 (P PUB Mqy 17, 2016 6 Iecemx 1, 1977 #z RE,SOTC3TION (C )�6S LAM p- 4�SArrn J PURPOSE: ''n�AL IMS01MION VMAMG A PORVION OF pEkn AVI N= & RSTITIATEO'Dy: UNrYMSITY OF TT1SCONSIN-0SFwSE Pw CCMISSION MATION: � REQS, pursi=t to Sect ion•66.296 (27 0� the T^liscorzs n Statutes .dor 1973, e Coffin Council has hera#:ofaze finita ated proceedings on October' 20, 1977 at a -requl,ar m-,eLing, :of the Cam-on Council to vacate and-discontinM the ,follo=f�ing described stareets PEAM AVIlM frcm Rockwell Avenue to Wisconsin sheet; B ,CKHi 3�fC STREET frM High Avenue to. the Fox•RjVe� TVHL'EAS, a public hearing oil the passage of-such resolution'has been -set by the Conxf'ion Council, ;&ich bear'apg was set:,-for 7:oo Y.M. in the CoLuici.l yrs Of the City Hall, Oshkosh, Wisconsin, on t1le Zst day of December, 3977 and Mitten rsotice of such meeting Was duly Served on the -owners of all of the frontage 'of the Jots and lands' abutting upon that portion• thereof-,sought to be discontinued as provided by law, and . MME S, a public hearing was duly head pursuant to said notice-. at tires :a0l:plPce therefore affixed end all persons so served, and interested-werq-thea and 'there given an opportunity to be heard, and rf?IIF S,. a proper notice of-the pendency of said Petition for vacationand de--oarjti_+nvanc e and nap covering the proposed vacation was duly filed in the .Offices of the Register of ids for Winnebago County. as required by the Wisconsin statutes, and MIMM— -s,'the lots and stand abutting on .said.titreets affo_c ed'by this resoltrcion are all in file lst and 5th.'Wards, City of Oshkosh; and, Lixng .descrj d as AMUE fries Rcckwell to- Wi.scopsin Stmt t LAM STRESS' frdm Righ Avenue to'the,Fox River h4W, T10REFORE, M ST RESOLVED.by the 0crmn CMMciI of the 'City :of.Oshkosh that it is'hereby decIared tltat since public interest requires it, the.follaAng c,cscraf streets in the Ist and 5th Wards, City of Oshkosh, 11-innebago County, Wisconsin aro hereby vacated and discontinued; reserving unto the City of O�hko6h •the right: to Maint-.aia, service, repair, add or.replace all sanitary se=wer stol-M seWer, water and gas mains and fittings in said vacated streets; •PE,PiRL AVENO from Rock,��,-11 Avenin to Wisconsin street BTAC EiAM s frau High Avenue to -the Fox River HE IT Fi3k'.T= RF-SOLVED tit the City Clerk record a certified copy of this . - resolution accarrenied with a rnap shoving the location of said vacated strep ' the office of -the i.ster of Deeds for Winnebago Count r. __ .���_^ y� '{� 1•l 4 r• `a � ' { `�'! ,r t�i�• sr a.'r. � •��'C.� �til x_ 5y c c�'�-..'..�g.1�.}]�P�... ` t/ � "` (' 'r/s.;p•`r`�. 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SPATE OF WZSCONSJq WINNEBAGO COUNTY } i � } C:xTY or OslIK0811 } r CvIaVer 8c? il,akk , Cis Ly C1 C:'k 0,1 tho City 0 C�c};fCG` 21, Svi.C1�t�Y1Tc�c+ j �- County, Wisconsin, do hereby c ortify t1)at I have cam�red the annexed a1 01 ori tll the orXgiral instrument now an file in my office, and that the same is a true copy, and a d1reef transcript of sait3 instrument. I hereby certify �Curther that said rk�r , stn e£ cvhict, t ' the annexed .xs a true and correct copy, Was adapr.ed by the Common i` Council, 0f the City o-.0 Oshkosh, Wisconsin, at a r1<7�,4`,hr ,�.-- meeting thereof held on ��� ri r , �., �, 19T? IN WITNESS MiEREOF, 11jaVa hereunto set my hand and ei:fixed the Corporation .5001 of the City ��Z Ushkost�, S4iscor�szit, thIg J f City Clerk of the,, wity. of 4S71kaSh Winnebago Count, llisconsin , f i� t4 � � � •1 1 � i �, , Nl ' o bo EXh b 1 t q0P i I 1 ' t I I I I �I I i 1 1 -- f ! t I I j t I I r t 1 „• ..,. 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'JI Il f I f It; •,Elf � I •` i, RSMYOFMCONSIN-OSHKOSH UNIVERWYOFWfSCONSIN•OSHKOSH �' ��T"� �E 6 600 ALGOmA BOULEVARD STUDENT RECREATIONAL FACILITY PROJECT 3 4islr corpora 11 o rr 4 OSHKOSH,WISCONSIN VACATED RIGHTOFWAY OSNKOSFI ,8>:' :k`F,ttt�i`t1hCh � ; �g PROPOSED LAYOUT 45.19-18 Exhibit TE A�RD® CERTIFICATE OF LIABILITY INSURANCE DAa/�/2oz THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE,DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND T F C1=RTtI=1CATE HOLDER. IMPORTANT, if the certificate holder is an ADDITION, IrHNS ��i;i} Yollcy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,cegain policies may requlre an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsem6nt(s). 3 PRODUCER } I (NAM5, Moira Crosby Hays Companies PHONE FAX E AIC No): 133 Federal Street, '2nd Floor P �`�" s ' ' ..$,a F; ADORILss:mcrosby@hayscompanies.com INSURER(S) AFFORDING COVERAGE MAIC# Boston MA 02110 INSURERAAtlantic Specialty Insurance 27154 INSURED INSURERB:Trumbull Insurance Company 27120 Tyler Technologies, Inc. INSURER Tech Group- Lloyds s nd: 1955 ...................................... ...... ............. _ ..... INSURER D 5101 Tennyson Parkway INSURER E: Plano TX 75024 INSURER F: COVERAGES CERTIFICATE NUMBER:3.1.16--11,17.16 GL, Auto REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 1NSR TYPE OF INSURANCE ADDL SUDR LICY EFF POPOLICY EXP LIMITS LTR D POLICYNUMBER MWDD MMIDO X COMMERCIAL GENERAL LIABILITY 1,000,000 EACH OCCURRENCE $ DAh1AGE TO RENTED A CLAIMS-MADE X OCCUR PREMISES F'aoccurrence $ 1,000,000 X 711013784-0003 3/1/2016 3/1/2017 MED EXP(Any one person) $ 10,000 .._ PERSONAL&ADV INJURY $_ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 X AOLICY❑JECOT- �LQC PRODUCTS-COMPIOPAGG $ 2,000,000 OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMB Eaacddent $ 1x000,000 A X ANY AUTO BODILY INJURY(Per perscn) $ AU OS SCHEDULED 711013754-0003 3/1/2016 3/1/2017 BODILY INJURY(Per $ AUTOS AUTOS X ( ) NON-OWNED PROPERTY DAMAGE $ X HIRED AU70SX AUTOS Peracddent X UMBRELLA LIAR X OCCUR EACH OCCURRENCE $ 15,000,000 A EXCESS LIAR CLAIMS-MADE AGGREGATE $ 15,000,000 DED RITENnON$ 711013754-0003 3/1/2016 3/1/2017 g WORKERS COMPENSATION % STATUTE )TH AND EMPLOYERS'LIABILITY YIN JR ANY PROPRIETOFWARTNER?EXECUTNEE.L.EACH ACCIDENT $ 1 000 000 $ CFFICERIMEMBER EXCLUDED? N I A (Mandatory In NH) OaWEE12592 3/1/2016 3/1/2017 E.L.DISEASE-EA EMPLOYEE $ 1,000,000 IF yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT i $ 1,000,000 C Professional Liability B0621PTYLE000215 11/17/2015 11/17/2016 OocurenceLimit $20,000,000 C Professional Liability B0621PTYLE000215 11/17/2015 11/17/2016 AggregateUmit $20,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached If more space Is required) City of Oshkosh is Additional Insured under the general liability and auto liability where required by written contract. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Oshkosh THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 215 Church Avenue ACCORDANCE WITH THE POLICY PROVISIONS. Oshkosh, WI 54903 AUTHORIZED REPRESENTATIVE James Hays/EKING I ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014101) The ACORD name and logo are registered marks of ACORD INS025 onumn