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HomeMy WebLinkAbout2011-Encroachment EasementDocument Nnmber Encroachment Agreement CITY OF OSHKOSH AND PROPERTY �WNER This document drafted by: David 3. Praska, Assistant City Attorney Ciry of Oshkosh, Wisconsin Draj� Dare.� November I8, 2011 1 1 5g98�► i kEGI STER' S UF�'I CE YI NAEBA60 C.C�UM7Y. iPI �EGOTtUEIy GM 1:�/�/�811 Qr4:81A19 �ULIE PAGEL REGiS?Ek aF IrEEIr� REGGRIyIMG FEE ?kAASFER FEE � C1F PA6� Neme nnd Return Address City Attorney's Offfce Oshkosh. WI 549i13-i] �%�Og�O� Pnrcel CdenttfkaUon Nnmber �Q1. 04! 11 REVOCABLE ENCROACHMENT AGREEMENT This agreement is between the City of Oshkosh ("Cit�'), and 421 North Main Street, LLC {"Owner"). The parties enter into this agreement for $1.OQ and other good and valuable consideration, the receipt of which is acknowledged. The Owner is the fee owner of the property commonly known as 421 North Main Street {"Property"), and with a summary description as follows: Lot Two (2) of Block Forty-four (44) in the Seventh Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894. The No►th Ten (10) feet of Lot Nine (9) in Cottrill's Subdivision of Lot 1, of Block 44, in the Seventh Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894. The North Six {6) inches of that part of an alley lying South of and adjacent tfl �ot 2 of Block 44, in the Seventh Ward, City of �shkosh, Winnebago County, Wisconsin, per Leach's Map of 1894 and between the West line of Lot 8 and the East line of Lot 9 in Cot#ri!I's Subdivision of Lot 1 of Block 44, in the Seventh Ward, City of Oshkosh, per Leach's Map of 1894, 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 Main Street. The City currently owns and/or is responsib{e for maintenance of the right oi way for this section of Main Street anc! therefore has the authority to enter into this agreement. No structure or object, including the proposed New Projecting Awning, is allowed to praject into any public right of way without the City's permission. The Owner desires to erect an awning (New Projecting Awning), to be attached to the Owner's building on the Property and wiil project over and ex#end into the right of way no more than three feet four inches (3' 4") from the face of the building. The New Projecting Awning to be instailed on the Property will be part of a single projecting awning that will also be installed on the adjoining s#ructure known as 423 North Main Street, Oshkosh. The Owner previously constructed an awning which is attached to the Property and projectslencroaches into the public right of way (Old Projecting Awning). The �Id Projecting Awning was constructed with a City bui(ding permit, but withou# permission from the City to encroach into the public right of way. The City of Oshkosh has reviewed the Owner's current request as described in this document, and will allowthe piacement ofthe requested New Projecting Awning subject to ihe terms and conditians identified in this agreement. The City of Oshkosh has aiso reviewed the Owner's previously constructed awning and will allow its continued placement subject to the terms and conditions identified in this agreement. Both parties agree that al! 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 foflow. 1. The City grants permission to the Owner to aftach an awning to the building on its Property which wil! project into the right-of-way vf Main Street, provided that Draft Date: November 18, 2011 2 the New Projecting Awning is materiafiy similar to the Awning design and specificatians submitted for the City's approvai. AI! parts of or related to the Awning shall have a minimum sidewalk clearance of eight (8) feet, or distance otherwise required by code or City policy. A drawing of the New Projecting Awning allowed is attached hereto as Exhibit A. 2. The City grants permission to the Owner to allow the continued projection / encroachment of the awning constructed in 2006 into the public right of way, provided that the Old Projecting Awning is materially similar ta the Awning design and specifications proposed in 2006 as submitted to the lnspections Division for their approval in obtaining a building permit. A drawing of the Old Projecting Awning is attached hereto as Exhibit B. 3. The City's permission far this New Projecting Awning is contingent upon the initial, and continuing, compliance with all applicable local, state, and federal codes and rules. The New Projecting Awning shall comply with City Ordinances, including but nat limited to requirements for permits, structures, signs, projecting signs, Chapter 3Q-37 and Chapter 30-27. 4. The City's permisslon for #he continued placement of the Old Projecting Awning is confingent upon the initial, and continuing, compliance with all applicable Iocal, state, and federal codes and rules. The Old Projecting Awning shall comply with City Ordinances, including but not limited to requirements for permits, structures, signs, prajecting signs, Chapter 30-37 and Chapter 30-27. Both the City and the Owner acknowledge that the Old Projecting Awning does not meet the minimurr� sidewalk clearance of eight (8) feet. The City will allow this continued deficiency provided it is understood that such allowance does not constitute a waiver of any rule or requirement, and provided the Owner agrees to take full respansibility for any damages caused by the Ofd Projecting Awning and to comply with all other terms of this Agreement. 5. The Owner agrees that they is solely responsible for the installation and maintenance of both the New Projecting Awning and the Old Projecting Awning, and that they are solely responsible for any and all personal �r property damage caused by the New Projecting Awning and the Old Projecting Awning. 6. The Owner is soEely responsible for securing, maintaining, repairing, and replacing the New Projecting Awning and the Old Projecting Awning. The City's permission and approval of each of the Projecting Awnings does not guaranty or warranty the short and long term stability and safety of the New and Old Projecting Awnings. 7. The Owner acknowledges and agrees that public utilities and facilities, and the s#reet and sidewalk, in the right-of-way are subject #o maintenance, repair or replacemen#. 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 fo notify the Owner of these activities sa that the Owner may remove or otherwise protect the New and/or Ofd Projecting Awnings if affected. If the Owner elects to remove or othervvise protect the New and/or Old Projecting Awnings, such actians must be taken within the timeframe for the Cit}�s anticipated work. However, the City shall not be responsible for any damage to the New and/or Old Projecting Awnings, or any structure or hardware to which Draft Date: November 18, 2011 the New and/or Old Projecting Awnings are attached, related to the City's actions in its right of way. The City has no obligation, but shall be ailowed to remove, at its sole discretion, the New andlor Old Projecting Awnings for the purpose of maintenance, repairs, and replacement of utilities and facilities within the right of way. The Owner shall be responsible for reinstaliing/reattaching the New and Old Projecting Awnings in those circumstances where the City removes one or both of the Projecting Awning. The City shall be reimbursed by the Owner for all costs and expenses related to removing or protecting the New and/or Old Projecting Awnings. The Owner gives the City permission to enter, access, and alter the Owner's Property that for the sole purpose of remaving or protecting the New and/or Old Projecting Awnings. 8. The City is allowed to revoke its pe�mission for the New Projecting Awning and the Old Projecting Awning for any of the following reasons: a. The City's use of the right of way prohibits the continued location of the New and/or Ofd Prajecting Awnings; b. The New and/or Old Projecting Awnings interfere with or may potentially damage landscaping and/or ather streetscape improvements; c. The City at its sole discretion believes #hat the Old Projecting Awning, at its current height, must be removed completely, or maved so that it complies with all codes. d. The cost of maintenance necessary forthe Old Projecting Awning equals 50% or more of the awnings value at the time the subject maintenance is necessary. e. Local, state, vr federal rules, (aws, or guidelines relating to public sidewalk or street ctearances or distances prohibit the continued location of the New andlor Old Projecting Awnings; f. The Owner fails to property maintain, repair, or replace the New and/or Old Projecting Awnings; g. The Owner fails to provide the City with annual written proof that the New and Old Projecting Awnings are covered by the required insurance. 9. The Owner releases the City of Oshkosh, its employees, agents, elected officials, and authorized volunteers from ali debt, claims, demands, damages, actions and causes of action whatsoever which may result from the New and Old Projecting Awnings. The Owner shall protect, hold harmless, and indemnify the City of Oshkosh against all ac#ions, claims and demands of any kind or characterwhatsoeverwhich are related to the New and Old Projecting Awnings. 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 the City may be required, obligated, or adjudged as responsible to pay, for any dispute or action related to the New and/or Old Projecting Awnings. This indemni�cation is broad, and shail 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 �wner agrees that this paragraph shall be liberally construed in favor of the City af Qshkosh, in consideration of the privileges granted by the City under this agreement. Draft Date: November 18, 2011 4 11. At all times during which the New and/ar Old Projecting Awnings encroach into the right of way, the Owner's property liability insurance shall cover alk potentiai liabilities relafed to the New and 41d Projecting Awnings. The Owner's insurance shall provide reasonable coverage for potential damages to persons and property caused wholly, or in part, by the New andlor Old Projecting Awnings. Minimum insurance coverage related to the New and Old Projecting Awnings 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 reiated to the New and/or Old Projecting Awnings. 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 lass. The Owner shall annually provide the City with proof of insurance for the New and Old Projecting Awnings. 12. The City's permission is personal #o the Owner, is not intended to convey any property rights or waive any gvvemmental regulatory rights, and cannot be transferred or assigned io 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 New and Old Projecting Awnings 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 421 Narth Main Street. Revocation of permission for the New and Old Projecting Awnings witl a#so 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 awner. 13. The Owner's responsihilities pursuant to this agreement extend to other persons, contractors, and agents performing work on Owner's beha(f and related to the New and/or Old Projecting Awnings. 14. The Owner agrees to be bound by the terrns af this agreement regardless of the existence of any ather agreements with the City related to the New and/or Old Projecting Awnings, 15. This agreement is solely for the benefit of the parties to this agreement, and it is not intended to benefit any third party. 16, The election to enforce or not enforce any term of this agreement, or any statute, code, or rule, as well as ihe timing of such enfarcement, shall be at the City's sole discretion and shall not act as a waiver of any rights to exercise any right reiating to the New andlor Old Projecting Awnings in the future. 17. This agreement shall incorporate all immunities and lirrzitations provided !o and protecting municipalities within the Wisconsin Statutes, regardless of whether a cfaim is based upon contract, tort, or other theory. This agreement shall nat run with the land. This agreement shall become effective upon the last date a party signs below. Dra,ft Date: November 18, 2011 5 _.__._ _ _ _ _ _._ PROPERTY OWNER: 421 North Main Street, L C y� ' Megan H, ang, Managing Memb STATE OF WISCONSIN j ) ss. WINNEBAGO COUNTY Personally came before me this �_'7 day of L�L'i� �� , 2011, the above-named Megan H. Lang, to me known to be the person(s) who executed ihe foregoing cument and nowle ed the same. � � �� Notary Public, �� c Co. Wlscorsin My Commission: CITY OF OSHKOSH By: ' L �' • . �y��(�-�%v Mark A. Rohloff, City Manager STATE OF WISCOtVSIN ) ) ss. WINNEBAGO COtJNTY ) . v; � � , And:� ���' 1 � �,,�_ � f �, `' �� � Pame{a R. Ubrig, City Clerk' � � Personal�y came befare me this � day of i' , 20'!1, the above-named MARK A. ROHLOFF, CITY MANAGER, AND PAMELA R. UBRIG, CITY CLEi2K , of the Ciry of Oshkosh, a municipal corporation, to me known to be the persons who executed the toregoing 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 sald corporatlon, by its authorlty. � � , �i � �Z � ' �,�i Zt � Notary Public, Winnebago Co., WI My Commission explres/ls: ,�� ,-��1-13 Draft Daie: Novernber 18, 2011 b � ,t � �e�`)-- ' 1 � �Xj�1a �: . ! . �� CITY OF OSHK03H No �2me2 j OSHKOSH BUILDING PERMIT -APPLlCATION AND RECORD ON THE WATER � Job Addreae 421 N kAA1N ST Owner 421 NORTH MA{N 57REET LLC Create Date 07l28l2006 Dealynar Contractor_ OSHKOSH TENT � AWNING CO INC Catepory 25 - Awnin s/Can les Plan Tj�,s � Bullding Q Sign � Canopy Q Fence zoNna Class oi Conat � UrtflnRshedlBsee nt Sq. Ft. Rooms HeipM Flnkhed/Lhing Sq. Ft. 8edrooms Storles Garege I Sq. FG Baths � Fou�dattan Q� Poured Concrete Q Floating Slab Q Pfer � Other Q'I ConCrete Blocfc Q Post Q Treated Waad Occupancy Parm�t Nat Rec�ulred Flooct Plaln Park Dedlcation i � Dwellinp UNts 0 UselNature merdal ! tnsfall a 4' pro)ectlng, 4'10` Talf x 18' lonp awning on eest facade w! 1 of Work HVAC Con Electrit Cc Feaa: Val lasued 8y: Slze ProjecUon ! Canoples 1 S�gns Heipht Permlt � Structures D " screen prirtted buslness name. Plumbing Contractor 51.892.00 Plan Approval 50.06 Permit Fee Paid 5707.00 Park Dodicatlon 50.00 Date 0��2�006 FIneUO.P. �OQ�0000 , ❑ Permit Vdded � Parcel Id � 07000800D0 tn the perfo�ance of this work I agree to perform elf work pu►suant to rules goveming the descrlbed construcUon. Whlie the CI oi Oshkash has no authority to enforee easement resWdlons ot whldi k Is rtot a party, if you perform the wcxk descrlbed in hls pennit appllratlon wlthin an easement, the City slrongiy urges the pertnit applicant to contact ihe easement hdder(s) an to eecure any neoessary app " Is belore s suc 'vity. Slgnature Deta ' c-t/ AgenVQumer Address 110 E FERNAU AVE 4SHKOSH Wl 34801 - 0000 Telephone Number 235�3170 . ,, . _ . ,. . ■ � � ��� Exhibit. _�.. To schedula Inapoctlons pfeasa call the Inspactian Roquest Ilne at 236•5128 noUng tha Addrass, Perrnit Numbor, Typa of Inspectlon (�.e. Footirtp, 3orvice, Final, atc.), Accass Into Building if Sacuro (how do wo galn ontry}, your Name and Phone Number. Urjleas spscified othervvisa, we wifl aaaume the proJect la readyat tha time the requeat Is recelved. Work may corrtlnue If the inapectlon is not pariormed wlthln two bualneas days from the tlme the proJect ia ready. . ��� OP ID: AW �1COR0' on� lMMroorrrvr� � CERTIFICATE OF LIABILITY INSURANCE ,�„4f11 THIS CERTIFICATE IS ISSUED /LS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERT1FkCATE HOLDER. THIS CERTiFICATE DOES NOT AFFIRMATIVELY OR NEGATiVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLIGES BELOVY. THIS CERTIFICATE OF INSURANCE DOES NOT CONSl1TUTE A CONTRACT BETWEEN THE ISSUING INSURER(5� AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERl1FICATE HOLDER. IMPORTANT: If the cert'rficate holder is an ADDITIONAL INSURED, the policy(ies} must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the cert�cate holder in lieu of such endorsement s VRODUCER 920-235-6461 Nq EACT Thomas J Pu eter CPCU Thomas Insurance Group PHOl�E FAx 303 Pearl Avenue 920-235-3186 r Na ,� :920-235-6461 A�C No: 92O'2�J'3�H� E�IAIL PO eox 33s7 A��Sg: tpupeter thomasinsurancegroup.com OSf1I(OSFI, WI S49O3�$E% PRODUCER gLACK-7 ThomasJ. Pupeter, CPCU c r M IDt. INSURED Black Teak Properties clo Megan H Lang P.O. Box 1099 Oshkosh, WI 54903 INSURER�S) AFFORDING COVERAGE �r,suaERn:General CasualtyCompany INSURER C : INSURER D : INSURER E : NAIC • ia COVERAGES CERTIFlCATE NUMBER: 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. NOTWRHSTANDING ANY REDUIREMENT, TERM OR CONDI710N OF ANY CONTRACT OR OTHER OOCUMENT W(T}i 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. IIMITS SHOWN MAYHAVE BEEN REDUCE� BY PAID CLAIMS. N� TYPE OF WSURANCE INSR POLIGV NUMBER MM27DlWVY {MMADIYWY) LIMITS GENERAL�IABIUTY I I I EACN �CCI:RRENCE �$ Y,OOO,O A X COMMERCIAL GENERPL _IFB�LI'V CLAIMS-MADE a OCCJR GEN'L AGGRE6ATE LIM�T PFPLIES PER � PGL��Y n PFCT � LCC AUTOMOBILE LW6ILITY ANYA..iC ALL OVVNEDAUTOS SCHEDU LED Al,?OS H IR� AUTOS NCN-OWNED AUTOS UMBRELLA LIAB I � OCCUR �---1 E%CESS LIAB � � ri oiM� X I ICFB0994495 I 11l01/11 I 11/01l12 c���cT ��e RE(EN? ON $ WORKERS COMPENSAT70N AND EMPLOYERS L1A81L1TY �, 1 N ANYFR�FFIETORlPARTNERIEXE�UT1'JE � OFFICERR�EVBEREKCLUDED9 N!A (Mandatory In NH) I! yes, desmbe untler r1FSCR�PTI('.�N OF OPFRATIONS belorv DESCRIPTION OF OPERAIIONS 1 LOCATIDNS lYEFMCLES (Attaeh ACORD 701, Addltlon� Remarke Schedule, IT mors �p�u Is nqwnd) 2E: 421 N Main Street ;ftyof Oshkosh Is an additional Insured. RTIFICATE H CITYOSH City oi Oshkosh City Clerk 215 Church Avenue Oshkosh, WI 54901 9, I � MED E�W (Arry one Derscn) $ PERSONAL & AGV INJURY S GENERAL AGGREGATE $ PRODUCTS-�OMF/OPAGG S f COMBiNED S!NGLE LIMIT 3 (Ea acdCertj BGDILY IN,AJBY �Perperso�) b BODILYiNJURY�Peracaoenp $ PROPERT� DFVdAGE $ ��er accida�t) E S EACH OCCURREfvCE $ AGGREGATE E s E L EACH A�CIDENT S E L. DiSEA3E - EA EMPLOYEE b E L CIScA�� - POUCY UM��T $ 100, �� SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELNERED IN ACCORDANCE WITH THE PO�ICY PROVISIONS. AUfFiORIZED REPRESENTATIVE Thomas J. Pupeter, CPCU O 1988-2009 ACORD CORPORAT{ON. All rlghts reserved. ACORD 25 (2009l09) The ACORD name and logo are registered marks of ACORD