HomeMy WebLinkAbout50 West 6th Avenue & Oshkosh/ Encroachment Agreement III I I
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Encroachment Agreement 745917
Document Number
REGISTER'S OFFICE
WINNEBAGO COUNTY, W1
RECORDED ON
08/04/2017 8:51 AM
NATALIE STROHMEYER
REGISTER OF DEED
RECORDING FEE 30.00
PAGES:
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,WI 5 0 -1130
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90300100000
Parcel Identification Number
CITY OF OSHKOSH
AND
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PROPERTY OWNER
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This document drafted by:
David J.Praska,Assistant City Attorney
City of Oshkosh,Wisconsin
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June 19, 2017 1
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REVOCABLE ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh ("City"), and 50 West 6th Street, LLC
("Owner"). The parties enter into this Agreement for $1.00 and other good and valuable
consideration,the receipt of which is acknowledged.
A. The Owner is the fee owner of Property commonly known as 50 West 6th Avenue,which is
more particularly described as follows: j
Lot 1 of Certified Survey Ma Number 1252 as recorded on May 25 1984
Map Y I
in Volume 1,Page 1252, Document Number 611506, Winnebago County
Register of Deeds, all located in the fractional Southwest V4 of the
Southwest V4 of Section 24, Township 18 North,Range 16 East, City
of Oshkosh, Winnebago County,Wisconsin
B. The Property's South boundary adjoins a public right-of-way used for various public utilities,
public sidewalks,and a public vehicular way commonly known as West 6'Avenue.The City
currently owns and/or is responsible for maintenance of the right-of-way for this section of
West 6th Avenue and therefore has the authority to enter into this Agreement.
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C. The Owner proposes to install stairs to be used for the purpose of accessing Owner's
Property. The Owner's preferred location for the stairs will cause them to extend over the
Property boundary and into the right-of-way. The Encroachment will extend no more than
five feet (5' 0")into the right-of-way have a maximum length of twenty-five (25) feet. A
locational map of the encroaching stairs is attached as Exhibit A.
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D. The specific location of the encroaching stairs is described as follows:
Part of the West 6TH Avenue Right-of-Way,being part of the S.W. 1/4 of
fractional Section 24, Township 18 North,Range 16 East, City of Oshkosh,
Winnebago County, Wisconsin;which is bound and described as follows:
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Commencing at the S.W. corner of said fractional Section 24;thence North
89°51'26"East along the South line of said S.W. 1/4, 590.05 feet to the
extension of the East Right-of-Way line of Nebraska Street, also being the
extended West line of Lot 1 of Certified Survey Map No. 1252;thence
North 00°00'30"West along said extended West lot line, 741.35 feet to the
S.W. corner of said Lot 1, and a point on the North Right-of-Way line of
West 6"Avenue;thence South 89°20'07"East along the South line of said
Lot 1, and said North Right-of-Way line, 74.59 feet to the Point of Beginning,
thence continuing South 89020'07"East along said South lot line and said
North Right-of-Way line, 25.00 feet; thence South 00°40'24"West, 5.00 feet;
thence North 89°20'07"West, 25.00 feet; thence North 00°40'24"East, 5.00
feet to the Point of Beginning.
E. No structure or object is allowed to encroach into a public right-of-way without the City's
permission. The proposed stairs would encroach into the public right-of-way and therefore
requires the City's permission.
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F. The City has reviewed the Owner's request to allow stairs to encroach into the public right-
of-way. The City will allow the placement of the stairs subject to the terms of this
Encroachment Agreement which includes the explicit understanding that the City's
permission for this Encroachment does not create or give the Owner any property right and
instead is personal to the Owner and is completely revocable by the City.
G. This Encroachment consisting of a five(5)foot by twenty-five(25)foot concrete stairs will
be allowed to project into the right-of-way of West 6t' Avenue, 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.
H. 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, and state and federal laws and regulations regarding
related to subjects including streets, stairs, and accessibility.
I. Despite the fact that the stair Encroachment will be in the right-of-way and connected to the
public sidewalk, and will be used by the public, the stair Encroachment remains privately
owned and the responsibility of the Owner. The Owner agrees that it is solely responsible for
the installation and maintenance of the Encroachment,and that it is solely responsible for any
and all personal or property damage caused by the Encroachment.
J. The Owner is solely responsible for securing, maintaining, repairing, and replacing the
Encroachment. The City's permission and approval of these Encroachment is not meant to
state or imply that the City guaranties or warranties the short and long term stability and i
safety of the Encroachment,and that it always remains the responsibility and liability of the
Owner.
K. 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. To that end,
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1. The Owner is solely responsible for removing or otherwise protecting the
Encroachment if they will be affected by any public 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 Encroachment.
2. In the event that maintenance,repair,or replacement of public utilities or facilities in
the right-of-way is planned near the Encroachment, the City agrees to make
reasonable efforts to notify the Owner of these projects or activities in advance.
3. If the Owner elects to remove or otherwise take actions to protect the Encroachment,
such actions must be taken in a manner approved by the City and within the
timeframe for the City's anticipated work.
4. 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 any public
maintenance,repair, or replacement project in the right-of-way.
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5. The City has no obligation to remove, but shall be allowed to remove, at its sole
discretion, the Encroachment in the event that a public project involving
maintenance,repairs, and/or replacement of public utilities and facilities within the
right-of-way requires such removal.
6. The Owner shall be responsible for reinstalling/reattaching the Encroachment
regardless of who removed the Encroachment.
7. The City shall be reimbursed by the Owner for all costs and expenses related to
removing or protecting the Encroachment.
8. In the event the City is required to remove or protect the Encroachment for purposes
described in this Agreement,the Owner gives the City permission to enter, access,
and alter the Owner's Property at the location of or adjoining the Encroachment area
that for the sole purpose of removing or protecting the Encroachment and only to the
extent reasonably necessary to achieve those objectives.
L. Due to the revocable nature of the City's permission and the lack of any property rights
granted, the Owner is not eligible for, and specifically disavows, any right to receive
compensation of any kind for the removal,alteration,or limited accessibility,in whole or in
part, whether temporary or permanent, of the stair Encroachment
M. The City is allowed to revoke its permission for the Encroachment for any of the following
reasons:
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1. The public uses of the right-of-way prohibit the continued existence of the
Encroachment;
2. The continued existence of the Encroachment would unreasonably limit the public
uses of the right-of-way,with such a determination at the discretion of the City; I
3. The Encroachment interferes with or may potentially damage landscaping and/or
other streetscape improvements;
4. 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 Encroachment;
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5. The Owner fails to properly maintain,repair, or replace the Encroachment;
6. The Owner fails to routinely remove snow and ice from the stair encroachment in the
same manner that the Municipal Code requires the removal of snow and ice from
public sidewalks.
7. The Owner fails to provide the City with annual written proof that the Encroachment
is covered by the required insurance
N. In the event the stair Encroachment falls into disrepair, or upon the failure of the owner to
perform any other material condition, the City may, but is not required to, place a barrier
within its right of way preventing access to the stair encroachment. In the event that Owner
June 19, 2017 4
fails or refuses to remove the stair Encroachment that has fallen into poor condition or
disrepair, the City may remove and dispose of the stairs at Owner's expense.
0. 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. 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. This hold harmless and 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 in favor
of the City of Oshkosh, in consideration of the privileges granted by the City under this
Agreement.
P. 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 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
Encroachment.
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Q. The City's encroachment 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, l
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 50 West 5th Avenue. 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.
R. 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. In the event that Owner causes "others" to perform work related to the
Encroachment,the Owner will at all times remain primarily liable to the City.
S. The Owner remains responsible for any actions taken by any of Owner's tenants,licensees,
invitees,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 otherperson related
to the Property which may relate to the Encroachment.
June 19, 2017 5
T. 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.
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U. This Agreement is solely for the benefit of the parties to this Agreement, and it is not
intended to benefit any third parry or any successor in interest of the Property.
V. 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.
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W. 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.
X. This Agreement shall not attach to or run with the land, but may be recorded with the
Register of Deeds for notice purposes.
Y. This Agreement shall become effective upon the last date a party signs below.
[SIGNATURE PAGE FOLLOWS]
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June 19, 2017 6
PROPERTY OWNER:
50 West 61h Street,LLC
By:
Andrew Dumke, Managing Member
STATE OF WISCONSIN
ss.
WINNEBAGO COUNTY
Personally came before me this J4day of --jW/vv� 2017,the above-named Andrew Durnke,tome known to
be the person who executed the foregoing document and acknowledged the same.
Notary Public,State of Wisconsin
My Commission expires:
CITY OF OSHKOSH
By: And:'
Rohloff, City Manager Pamela R. Ubrig, City Clerk'
STATE OF WISCONSIN
ss.
WINNEBAGO COUNTY
Personally came before me this pQr day of...... 2017,the above-named Mark A.Rohloff,City Manager,
and Pamela R.Ubrig,City Clerk,of the City of Oshkosh,a 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 deed of said corporation,by its authority.
Notary Public,St of Wiscons
My Commission expires: t)
June 19, 2017 7
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