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HomeMy WebLinkAbout923 South Main Street EF IIjj �II II II I II II II�II�I IIII�I� I Encroachment Agreement 8 Tx54258496 Document Number 1742374 REGISTER'S OFFICE WINNEBAGO COUNTY, W1 RECORDED ON 06/22/2017 9:00 APA NATALIE STROHMEYERM REGISTER OF DEEDS RECORDING FEE 30.00 PAGES; 10 Rccordinu Arta 04 Name and Return Address City Attorney's Office PO Box 1130 Oshkosh IVT 54903-1130 90301980000- Parcel 0301980000Parcel idcntUlcation Number CITY OF OSHKOSH AND PROPERTY OWNER This document drafted by: David J.Praska,Assistant CIty Attorney City ofOsitkosh,Wisconsin April 6, 2017 1 / ��V REVOCABLE ENCROACHMENTAGREEMENT This Agreement is between the City of Oshkosh ("City"), and Titan Commercial, 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 Property commonly known as 923 South Main Street,which is more particularly described as follows; The North One Hundred(100) feet of the South One Hundred Twenty(120)feet of Lots Twenty(20),Twenty-one(2 1)and `1`wenty-Two(22),Block Sixteen(16),according to the recorded Plat of the ORIGINAL THIRD WARD,in the Third Ward,City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894,excepting therefrom the West Fifteen (IS)feet of said Lot Twenty(20)deeded to the City of Oshkosh for a public alley. AND The South Twenty(20)feet of Lots Twenty(20),Twenty--one,and Twenty-two(22),Block Sixteen(16),according to the recorded Plat of the ORIGINAL THIRD WARD,in the Third Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894. TheTroperty's East boundary adjoins a public right-of-way used for various public utilities, public sidewalks, and a public vehicular way commonly known as South Main Street. The City currently owns and/or is responsible for maintenance of the right-of-way for this section of South Main Street and therefore has the authority to enter into this Agreement. The Owner proposes to install an awning to be attached to the Owner's building on the Property and would extend over and into the right-of-way, The Encroachment will extend no more than three feet(3' 0")into the right-of-way have a minimum distance of eight feet(8'0")between the sidewalk and the bottom of the Projecting Awning. No structure or object is allowed to encroach into any public right-of-way without the City's permission. The proposed Projecting Awning would encroach into the public right-of-way and therefore requires the City's permission, A small part of the building's existing parapet encroaches Into the right-of-way,with the date and circumstances this was installed is unknown. The City has no record of the parapet installation and as a result the City has not previously given its permission for this parapet encroachment, The Projecting Parapet consists of two horizontal bands that are greater than eight feet(8'0")above the sidewalk,and each extends between approximately one(1) and six(6)inches into the right-of-way. The primary put-pose of this Encroachment Agreement was to address the new Projecting Awning,but upon discovering the Projecting Parapet,both encroachments will be addressed in this Encroachment Agreement. The Projecting Awning and the Projecting Parapet are identified in .Exhibit A,which is attached and incorporated into this Encroachment Agreement. April 6, 2017 2 The City has reviewed the Owner's request to allow the Projecting Awning and Projecting Parapet. The City will allow the placement of the new Projecting Awning and will allow the existing Projecting Parapet to remain with the City's revocable permission. Both encroachments will be allowed subject to the terms and conditions identified in this Agreement.Both parties agree that all ofthe 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 Property that will extend into the right-of-way. This Encroachment will be allowed to project into the right-of-way of South Main Street,provided that this Encroachment is materially similar to the design and specifications submitted for the City's approval. Parts of the plans submitted are attached hereto as Exhibit A for reference purposes, 2. Although the Owner's plans call for a higher sidewalk clearance,the lowest element of the approved Projecting Awning shall extend above and have a minimum sidewalk clearance of eight feet(8'0"). 3. The City grants permission to the Owner to retain the existing parapet that extends into the right-of-way between one(1)and six(6)inches. This Encroachment will be allowed to continue projecting into the right-of-way of South Main Street, provided that this Encroachment remains materially similar to its current design and specifications as of the date of this Agreement. The current design and specifications are attached hereto as Exhibit A for reference purposes, 4. The City's permission for these Encroachments is contingent upon the initial, and continuing,compliance with all applicable local,state,and federal codes and rules. The Encroachments shall comply with City Ordinances including, but not limited to, requirements for permits,structures,signs,projecting signs,Chapter 30.37 and Chapter 30-27. S. The Owner agrees that it is solely responsible for the installation and maintenance of the Encroachments, and that it is solely responsible for any and all personal or property damage caused by the Encroachments. 6. The Owner is solely responsible for securing,maintaining,repairing,and replacing the Encroachments. The City's permission and approval of these Encroachments is not meant to guaranty or warranty the short and long term stability and safety of the Encroachments, 7. The Owner acknowledges and agrees that public utilities and facilities, including the street and sidewalk,located within the right-of-way are subject to maintenance,repair or replacement. Specifically, a. The Owner is solely responsible for removing or otherwise protecting the Encroachments if they will be affected by any maintenance, repair, or replacement projects or activities within the right-of-way. The City will not be responsible for the any costs for the disruption or removal of the Encroachinnets. b. In the event that maintenance, repair, or replacement of public utilities or facilities in the right-of-way is planned, the City agrees to make reasonable April 6, 2017 3 efforts to notify the Owner of these projects or activities in advance, c. If the Owner elects to remove or otherwise take actions to protect the Encroachments,such actions must be taken in a manner approved by the City and within the timeframe for the City's anticipated work, d. The City shall not be responsible for any damage to the Encroachments,or any structure or hardware to which the Encroachments are attached, related to any public maintenance,repair,or replacement project In the right-of-way. e. The City has no obligation to remove,but shall be allowed to remove,at its sole discretion, the Encroachments in the event that a public project invoving maintenance,repairs,and/or replacement of public utilities and facilities within the right-of-way requires such removal. f. The Owner shall be responsible for reinstalling/reattaching the Encroachments regardless of who removed the Encroachments. g. The City shall be reimbursed by the Owner for all costs and expenses related to removing or protecting the Encroachments. It. In the event the City Is required to remove or protect the Encroachments for purposes described in this Agreement, 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 Encroachments and only to the extent reasonably necessary to achieve those objectives. 8. The City is allowed to revoke its permission for the Encroachments for any of the following reasons; a. The public uses of the right-of-way prohibit the continued existence of the Encroachments; b. The continued existence of the Encroachments would unreasonably limit the public uses of the right-of-way,with such a determination at the discretion of the City; C. The Encroachments interfere with or may potentially damage landscaping and/or other streetscape improvements; d. Local, state, or federal rules, laws, or guidelines relating to right-of-way obstructions, encroachments, or uses, Including public sidewalk, street, or streetscape clearances or distances, prohibit the continued location of the Encroachments; e. The Owner falls to properly maintain,repair,or replace the Encroachments; f. The Owner fails to provide the City with annual written proof that the Encroachments are covered by the required insurance, Apr116, 2017 4 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 Encroachments. 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 Encroachments, 10. Both patties 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 the City may be required, obligated, or adjudged as responsible to pay, for any dispute or action related to the Encroachments. 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 later than 30 days after written request for such indemnification. The Owner agrees that this paragraph shall be liberally construed irrfavor of the City of Oshkosh,in consideration of the privileges granted by the City under this Agreement. 11. At all times during which the Encroachments extend into the right-of-way,the Owner's property liability insurance shall cover all potential liabilities related to the Encroaclnnents. The Owner's insurance shall provide reasonable coverage for potential damages to persons and property caused wholly, or in part, by the Encroachments. Minimum insurance coverage related to the Encroachments 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 Encroachments. 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 Encroachments. 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 Encroachments are 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 923 South Main Street. Revocation of permission for the Encroachments 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. 13. The Owner's responsibilities and liabilities pursuant to this Agreement extend to other persons,contractors,and agents performing work on Owner's behalf and related to the Encroachments. 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 Encroachments regardless of the terms of any separate private agreement it may have with any tenant or other person related to the Property which may relate to the Encroachments. April 6, 2017 5 1 S. 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 Encroachments, 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 Encroachments in the future. 18. This Agreement shall incorporate all immunities and limitations provided to and protecting municipalities within the Wisconsin Statutes,regardless ofwhether 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] Api-116, 2017 6 PROPERTY OWN)CR; 'l'itati ion t J- C By: nice artlIYlanagittg Member STATE OF WISCONSIN ) ) sg, WINNEBAGO COUNTY ) Personally came before me this day of ,2017,the above-named Mee Kravitz,to me known to be the person who executed the foregoing document and acknow$ god the same. 4 ABIGAYLE LEE ZUBELLA Notary 'ubll State of Wis onsht Notaiy Public My Commission expires: a w '�?J) F/,�`s State of Wisconsin CYT ► OSHKOSH By: And: 0M r atiger Pamela. b rig, Of Clerk STATE OF WISCONSIN ) J ss. WINNEB�GO COUNTY ) M. W es �Personally came before me this day of Dia� ,2017,the above-named Mack*-.Raitbtl,City Msmager, an 0an1 Rr6%rig,City Clerk,of(Ito City of Oshkosh,a municipal corporation,to nto known to be tits persons who executed the foregoing Inswinent,and to mo known to be such officers of said corporation,and acknowledged that thoy oxecuted ilia foregoing instrument as such officers as Ilse deed of said corporation,by its authority. �)'q- Notary 0 � Pu Hc,S(40 of Wisconsin My Commission o.vhs: Apra 6, 2017 7 m ` a a A vr� enr�fi+�(�ll�t�f�___ sra�m+dx,9rcYn4scrwa '��S f � g 2 +td6�t`d1 Ef ftvkPdrrdW.Wean 9iS(J)P R.ysttmt�l� Y � _�tK�..1'i15C'0�J54'd rtt►AMuxa93 R 1 /S �L t INfRYAtiti � Aii!/N� eNm.rrot i� j Fxhihif hx3 • � Q � � i �C a� a z i k .rrt. A , Z4 WAWA k ti illa rn R a iormpropfffm w n •ro t a Sfa'maaherlt0 jell! * ` QUM MAIMMWIN t4W nvN ► i OXMIN r-xhihi00 may• ••O y O �OQ •�a Hr O M n � 4 a •�C n •�o cfi Old i Ell s 4 Exhibit 3 or-3