HomeMy WebLinkAbout2015 Harrison Street 8 3 2 4 7 5 7
Tx:4235826
Encroachment Agreement
1731839
Document Number
REGISTER'S OFFICE
WINNEBAGO COUNTY, WI
RECORDED ON
01/1 /2017 10:54 AM
NATALIE STROHMEYER
REGxs,rER OF DEEDS
RECORDING FEE 30.00
PAGES: 7
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,Wl 54903-1130
c'"
91516860000
Pareel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J. Praska,Assistant City Attorney
City of Oshkosh,Wisconsin
Januaty 3, 2017
REVOCABLE ENCROACHMENT AGREEMENT
This agreement is between the City of Oshkosh ("City"), and Retros Pub, 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 2015 Harrison
Street("Property"), and with a summary description as follows:
Lots Sixteen (16) and Seventeen (17), together with
i
the East '/2 of that portion of an alley (now vacated) lying
West of an adjacent to said Lots and between the
extended North line of said Lot Sixteen (16) and the extended
South line of said Lot Seventeen (17), all in Block 10 in FIRST
ADDITION TO PLAT OF THE INTER URBAN LAND
COMPANY, in the Fifteenth Ward, City of Oshkosh,
Winnebago County, Wisconsin.
Adjoining the Property along its East boundary is a public right-of-way used for
various public utilities, public sidewalks, and a public vehicular way commonly known as
Harrison Street. The City currently owns and/or is responsible for maintenance of the right
of way for this section of Harrison Street and therefore has the authority to enter into this
Agreement.
No structure or object, including the proposed Projecting Sign, is allowed to
I encroach into any public right-of-way without-the City's permission. The Property has
j previously included a sign extending into the right-of-way without an encroachment
agreement,with that sign being of an unknown origin and existing for an unknown period of
time.
The Owner has removed the previous encroaching sign and desires to erect a
lighted sign (Encroachment), to be attached to the Owner's building on the Property and
will extend over and into the right-of-way. The Encroachment will extend no more than four
i feet (4' 0") from the face of the building and will be five feet (5' 0") tall.
The City has reviewed the Owner's request as described in this document, and will
allow the placement of the requested Encroachment subject to the terms and conditions
E 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 to attach a lighted sign to the building
on the Property. The Encroachment will be allowed to project into the right-of-
way of Harrison Street, provided that the Encroachment is materially similar to
the design and specifications submitted for the City's approval and attached
hereto as Exhibit A.
2. The Owner shall ensure that any electrical components on the Encroachment
must include and exterior junction box or other feature which will allow the
disconnection of electrical service from the Encroachment in the event a full or
partial removal of the Encroachment is required as described in this Agreement.
January 3, 2017 2
3. The lowest element of the approved Encroachment shall extend above and have
a minimum sidewalk clearance of ten feet nine inches (10'9").
4. The City's permission for this Encroachment is contingent upon the initial, and
continuing, compliance with all applicable local, state, and federal codes and
rules. The Encroachment shall comply with City Ordinances, including but not
limited to requirements for permits, structures, signs, projecting signs, Chapter
30-37 and Chapter 30-27.
5. The Owner agrees that they are solely responsible for the installation and
maintenance of the Encroachment, and that they are solely responsible for any
and all personal or property damage caused by the Encroachment.
6. The -Owner is solely responsible for securing, maintaining, repairing, and
replacing the Encroachment. The City's permission and approval of the
Encroachment is not meant to guaranty or warranty the short and long term
stability and safety of the Encroachment.
7. The Owner 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.
a. 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 Encroachment, if affected.
b. If the Owner elects to remove or otherwise protect the Encroachment,
such actions must be taken within the timeframe for the City's anticipated
work.
C. The City shall not be responsible for any damage to the Encroachment,
or any structure or hardware to which the Encroachment is attached,
related to the City's actions in its right-of-way.
d. The City has no obligation to remove, but shall be allowed to remove, at
its sole discretion, the Encroachment for the purpose of maintenance,
repairs, and replacement of utilities and facilities within the right-of-way.
e. The Owner shall be responsible for reinstalling/reattaching the
Encroachment regardless of who removed the Encroachment.
f. The City shall be reimbursed by the Owner for all costs and expenses
related to removing or protecting the Encroachment. The Owner gives
the City permission to enter, access, and alter the Owner's Property that
for the sole purpose of removing or protecting the Encroachment.
8, The City is allowed to revoke its permission for the Encroachment for any of the
following reasons:
a. The City's use of the right-of-way prohibits the continued location of the
Encroachment;
b. The Encroachment interferes with or may potentially damage landscaping
and/or other streetscape improvements;
C. Local, state, or federal rules, laws, or guidelines relating to right-of-way
obstructions or the use of right-of-way, or public sidewalk or street
January 3, 2017 3
clearances or distances, prohibit the continued location of the
Encroachment;
d. The Owner fails to property maintain, repair, or replace the
Encroachment;
e. The Owner fails to provide the City with annual written proof that the
Encroachment is covered by the required insurance.
9. 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
Encroachment. The Owner shall protect, hold harmless, and indemnify the City
of Oshkosh against all actions, claims and demands of any kind or character
whatsoever which are related to the Encroachment.
I
10. Both parties understand and agree that accidents and incidents occurring on
City 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
j the City may be required, obligated, or adjudged as responsible to pay, for any
+ dispute or action related to the Encroachment. 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 laterthan 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 privileges granted by the City under this Agreement.
11. At all times during which the Encroachment extends into the right-of-way, the
Owner's property liability insurance shall cover all potential liabilities related to
the Encroachment. The Owner's insurance shall provide reasonable coverage
for potential damages to persons and property caused wholly, or in part, by the
Encroachment. Minimum insurance coverage related to the Encroachment shall
be $500,000 for each occurrence for bodily injury and property damage liability
and $500,000 general aggregate. The Owner's insurance shall include the City
of Oshkosh as an additional insured on its policy for claims, liabilities, and
damages related to the Encroachment. The owner's insurance shall provide
primary coverage and that any insurance or self insurance maintained by the
City of Oshkosh, its officers, council members, agents, employees or authorized
volunteers will not contribute to a loss. The Owner shall annually provide the
City with proof of insurance for the Encroachment.
. 12. The City's permission is personal to the Owner, is not intended to convey any
property rights or waive any governmental regulatory rights, 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 Encroachment 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 2015 Harrison Street. Revocation of
permission for the Encroachment will also occur where the Owner forms a
different entity to own the Property in whole or in part of which they are the sole
or partial owner.
January 3, 2017 4
13. 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 Encroachment.
14. The Owner remains responsible for any actions taken by any tenant or property
of any tenant, or service provider that are related to this Agreement, The Owner
also remains responsible for all aspects related to the Encroachment regardless
of the terms of any separate private agreement it may have with any tenant or
other person regarding the Encroachment. .
16. The Owner agrees to be bound by the terms of this Agreement regardless of the
existence of any other Agreements with the City related to the Encroachment.
16. This agreement is solely for the benefit of the parties to this Agreement, and it is
not intended to benefit any third party or any successor in interest of the
Property.
17. 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 Encroachment in the future.
18. This Agreement shall incorporate all immunities and limitations provided to and
protecting municipalities within the Wisconsin Statutes, regardless of whether a
claim is based upon contract, tort, or other theory.
This agreement shall not attach to or run with the land, but may be recorded with the
Register of Deeds for notice purposes.
This agreement shall become effective upon the last date a party signs below.
[SIGNATURE PAGE FOLLOWS]
January 3, 2017 5
PROPERTY OWNER:
Retro Pub, LLC
Brett L. Rescheske, Managing Member
STATE OF WISCONSIN
WINNEBAGO COUNTY
Personally came before me this Jr day of 2017,the abo a named Brett L.Rescheske,
to me known to be the person(s)who executed the fore g documej an
I
Notary Public,State of Wisc
My Commission expires:
CITY OF OSHKOSH
And
By:
Mark A. Rohloff, City Manager Pamela R. Ubrig, City Clerk
STATE OF WISCONSIN
)ss.
WINNEBAGO COUNTY
Personally came before me this day of 2017,the above-named Mark A.Rohloff,
City Manager,and Pamela R.Ubrig,City Clerk,of the City of Oshkoswa municipal corporation,to me known to be the
persons who executed the foregoing instrument, and to me known to be such officers of said corporation, and
acknowledged that they executed the foregoing Instrument as such officers as the dee of orporation, by its
authority.
_!46%fy Public 9t to of Wisconsin
n
My Commission expires:
January 3, 2017 6
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