Loading...
HomeMy WebLinkAboutCrescent Moon Properties 537 North Main StreetI 1A U3 ` Encroachment Agreement Document Number CITY OF OSHKOSH PROPERTY OWNER This document drafted by: David J. Praska, Deputy City Attorney City of Oshkosh, Wisconsin -4ugust 22, 2017 8 3 7 2 3 2 3 Tx:4271209 1748946 REGISTER'S OFFICE WINNEBAGO COUNTY, WI RECORDED ON 09112/2017 9:42 AM NATALIE STROHMEYER REGISTER OF DEEDS RECORDING FEE 30.00 PAGES. 11 Recording Area Name and Return Address City Attorney's Office PO Box 1130 Oshkosh, WI 54903-1130 90700360000 Parcel Identification Number REVOCABLE ENCROACHMENT AGREEMENT This Agreement is between the City of Oshkosh ("City"), and Crescent Moon Properties, LLC ("Owner"). The parties enter into this Agreement for $1.00 and other good and valuable consideration, the sufficiency and receipt of which is acknowledged. A. The Owner is the fee owner of Property commonly known as 537 North Main Street, which is more particularly described as follows: [legal description attached Exhibit A] B. The Property's East boundary adjoins a public right-of-way used for various public utilities, public sidewalks, and a public vehicular way commonly known as North Main Street. The City currently owns and/or is responsible for maintenance of the right-of-way for this section of North Main Street and therefore has the authority to enter into this Agreement. C. The Owner proposes to install a sign that would be attached to the building fagade and will project into the right-of-way. This sign will extend no more than forty-seven inches (47") from the fagade and into the right-of-way. This sign will be no less than eleven feet (11') above the sidewalk. A map of the Encroaching Sign is attached as Exhibit B. D. The building fagade currently includes architectural features that also extend and encroach into the right-of-way between seven (7) and fifteen (15) inches. These existing encroachments were apparently part of earlier construction / renovation work performed on the building's fagade and were installed without the approval of the City. The City will allow these existing facades to remain in their current or materially similar form, in the same manner as the Projecting Sign will be allowed to Encroach. E. No structure or object is allowed to encroach into a public right-of-way without the City's permission. The proposed sign and existing architectural features encroach into the public right-of-way and therefore require the City's permission. F. The City has reviewed the Owner's request to allow a sign to encroach into the public right- of-way. The City will allow the placement of the sign subject to the terms of this Encroachment Agreement. A material component of this Agreement is the expl' understanding that the City's permission for Encroachments do not create or give the Ow any property right and instead is personal to the Owner and is completely revocable by City. G. This Encroachment consisting of a sign will be allowed to project into the right-of-way 537 North Main Street, provided that this Encroachment is materially similar to the desi and specifications submitted for the City's approval. A sketch of the plans submitted attached hereto as Exhibit B for reference purposes. H. The City's permission for this Encroachment is contingent upon the initial, and continuij compliance with all applicable local, state, and federal codes and rules. The Encroachmi shall comply with City Ordinances, and state and federal laws and regulations regardi related to subjects including signs, streets, and sidewalks. August 22, 2017 2 Despite the fact that the sign Encroachment will be within the public right-of-way, the sign 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. The Owner is solely responsible for securing, maintaining, repairing, and replacing the Encroachment. The City's permission and approval of this Encroachment is not meant to state or imply that the City guaranties or warranties the short and long term stability and 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, as well as landscaping, located within the right-of-way are subject to maintenance, repair or replacement. To that end, 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 any costs for the disruption or removal of the Encroachment. 2. The Owner is solely responsible for protecting public utilities and facilities, including landscaping, as well as those using the public right-of-way from adverse effects related to the existence of the Encroachment. 3. 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. 4. 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. 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. 6. 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. 7. The Owner shall be responsible for reinstalling/reattaching the Encroachment regardless of who removed the Encroachment. The City shall be reimbursed by the Owner for all costs and expenses related to removing or protecting the Encroachment. 9. 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, August 22, 2017 3 and alter the Owner's Property at the location of or adjoining the Encroachment area 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 sign Encroachment M. The City is allowed to revoke its permission for the Encroachment for any of the following reasons: 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; 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; 5. The Owner fails to properly maintain, repair, or replace the Encroachment; 6. The Owner fails to provide the City with annual written proof that the Encroachment is covered by the required insurance N. In the event that Owner fails or refuses to remove the Encroachment that has either been revoked, or has otherwise fallen into poor condition or disrepair, the City may remove and dispose of the sign at Owner's expense. O. 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 August 22, 2017 4 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. 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. 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 537 North 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. 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 other person related to the Property which may relate to the Encroachment. 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. U. 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. 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. W. This Agreement shall incorporate and apply 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 only for notice purposes. Y. This Agreement shall become effective upon the last date a party signs below. August 22, 2017 PROPERTY OWNER: Crescent Moon Properties, LLC B42) A` Juli arner, Managing Member STATE OF WISCONSIN ss. WINNEBAGO COUNTY Personally came before me this day of A m�� '2017, the above-named Julie Kamer, to me known to be the person who executed the foregoing document and acknowl ed the same. I �44_ Notary Public, State of WiscV, (, Q1 - I My Commission expires: IIDD'' D CITY OF OSHKOSH By:�s�� Mark A. Ro loff, City Manager STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY ) 1 And. Pamela R. Ubrig City , Ci Clerk Personally came before me this —5-- day of r 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 the recuted the foregoing instrument as such officers as the deed of said corporation, by its authori —Iqotary Publicj(Sta!to of Wisco sin MyCommissi expires: August 22, 2017 LEGAL DESCRIPTION Lots Ten (10), Eleven (11), Twelve (12), Thirst -three! (3:3), Thirty-four (34), Thirty-five. (36), the North Twenty (20) feet of Lots line (9) and Thirty-two (32) .and the South Ten (10) feet of Lots Thirteen (13) :and Thirty-six (38) of Block Forty-three (43) In HENl WIG`S 'PLAT LOT 2, Block 43, per Leach}s Map of 1894, in, the Seventh Ward, City of Oshkosh, Winnebago County, Wisconsin, excepting therefrom that portion of said Lots 32, 33, 34 :and 36 lying westerlyof a line drawn parallel with and IS. feet easterly of, measured at right angles to, the center line of the main, track of the Wisconsin Central Ltd. (form,erly'known as the Soo Line Railroad CQrnpany). AND That part of Lots Thirty -taro (32), Thirty-three (33), Thirty-four (34) and Thirty-five (39) in HEhll ING' . PLAT OF LOT 2, 81ock 43, per Leach's Map. of 1894, in the Seventh Ward, City sof Oshkosh, Winnebago County, Wisconsin, bounded and described as follows: Commencing at M the Southwest cornier of Lock 28 in said Subdivision, thenee North 99989'80" West along the Nest �C line of said Subdivision (and the East line of Division Street)193.00 feet to the point of beginning of the parcel to be described, thence continuing North 00*00*001x' West 110.00 feet, —. thence South 89"59'38'° East along the North lure of said Lot 35aforesaid 1.35 feet, thence Southeasterly 6.89 feet.along- the arc of a carve whose center lies to the West whose radius is r -t- 569.04 feet and whose chord begs South: I V18`12:'' East. 5,58 feet, thence South '11136,35" East 72.00, feet,, thencet Southeasterly 33.50 feet along thei arc of a curve whose center lies to the West whose radius is 1288.11 feet and whose chord bears South 0929'41"' East 33.60 feet, thence South 89°57'13" West 23.44 feet. to the point of beginning, o ®®l 1 v P O j it WlteA `f/1-7117-cy-_➢tawnkb5cale.- -e�d -Z-- FV c 1 —1 ZZ A P Jo .Sb �r 2