HomeMy WebLinkAboutTod-Mar 436 N Main St Encroachment luhIiILIlI III III
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Encroachment Agreement DOC# 1785735
NATALIE STROHMEYER
Document Number REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
03/20/2019 08:42 AM
RECORDING FEE: 30.00
PAGES: 9
LI
Recordin Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,WI 54903-1130
90400980000
Parcel Identification Number
CITY OF OSHKOSH
AND
•
PROPERTY OWNER
This document drafted by:
David J. Praska,Deputy City Attorney
City of Oshkosh,Wisconsin
February 27, 2019 1 W
REVOCABLE ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh ("City"), and Tod-Mar Property
Management,LLP ("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 436 North Main Street,which
is more particularly described as follows:
Lot Eighteen(18)of Block Forty(40),in the Fourth Ward, City of Oshkosh,
Winnebago County, Wisconsin,per LEACH'S MAP OF 1894.
B. The Property's west 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 facade and will
project into the public right-of-way. This sign will extend no more than thirty-nine inches
(39")from the façade and into the right-of-way. This sign will be no less than nine feet(9')
above the sidewalk. A map of the Encroaching Sign is attached as Exhibit A.
D. The building façade currently includes architectural features that also extend and encroach
into the right-of-way between approximately four (4) and eighteen (18) inches. These
existing encroachments were apparently part of earlier construction / renovation work
performed on the building's façade 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,
and is included in this Encroachment Agreement 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 has also reviewed the existing architectural features that encroach into the
public right-of-way. The City will allow the placement of the sign and the existing
encroaching architectural features subject to the terms of this Encroachment Agreement. A
material component of this Agreement is the explicit understanding that the City's
permission for Encroachments do not create or give the Owner any property right to extend
into the public right-of-way and instead the Encroachments are personal to the Owner and are
completely revocable by the City.
G. This Encroachment consisting of a sign will be allowed to project into the right-of-way at
436 North Main Street,provided that this Encroachment is materially similar to the design
and specifications submitted for the City's approval. The existing architectural features may
extend into the public right-of-way provided they remain materially similar to the size,
design,and layout shown in the materials submitted to the City.A sketch and photograph of
the plans submitted and existing architectural features are attached hereto as Exhibit A for
February 27, 2019 2
reference purposes.
H. The City's permission for these Encroachments are contingent upon the initial, and
continuing, compliance with all applicable local, state, and federal codes and rules. The
Encroachments shall comply with City Ordinances, and state and federal laws and
regulations regarding related to subjects including signs, streets, sidewalks, and buildings.
I. Despite the fact that the Encroachments will be within the public right-of-way, the
Encroachments remain privately owned and the responsibility and liability of the Owner.
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.
J. The Owner is solely responsible for securing, maintaining, repairing, and replacing the
Encroachments. 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 Encroachments, and that the Encroachments always remain 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,
1. The Owner is solely responsible for removing or otherwise protecting the
Encroachments if they will be affected by any public maintenance, repair, or
replacement projects or activities within the public right-of-way. The City will not be
responsible for any costs for the disruption, removal, or absence of the
Encroachments.
2. The Owner is solely responsible for protecting all persons and property from adverse
effects related to the existence of the Encroachments. This responsibilities relates to
public utilities and facilities,including landscaping,as well as those using the public
right-of-way.
3. In the event that maintenance,repair,or replacement of public utilities or facilities in
the right-of-way is planned near the Encroachments, 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 Encroachments,
such actions must be taken in a manner approved by the City and within the
timeframe for the City's anticipated work.
5. 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.
6. 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 involving
maintenance,repairs,and/or replacement of public utilities and facilities within the
right-of-way requires such removal.
February 27, 2019 3
7. The Owner shall be responsible for reinstalling/reattaching the Encroachments
regardless of who removed the Encroachments.
8. The City shall be reimbursed by the Owner for all costs and expenses related to
removing or protecting the Encroachments.
9. 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 at the location of, or adjoining, the Encroachment
areas for the sole purpose of removing or protecting the Encroachments 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 Encroachments.
M. The City is allowed to revoke its permission for the Encroachments for any of the following
reasons:
1. The public uses of the right-of-way prohibit the continued existence of the
Encroachments;
2. The continued existence of the Encroachments would unreasonably limit or
materially impair the public uses of the right-of-way,with such a determination at the
discretion of the City;
3. The Encroachments interfere 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 Encroachments;
5. The Owner fails to properly maintain,repair, or replace the Encroachments;
6. The Owner fails to provide the City with annual written proof that the Encroachments
are covered by the required insurance
N. In the event that Owner fails or refuses to remove the Encroachments that have either been
revoked,or have otherwise fallen into poor condition or disrepair,the City may remove and
dispose of the offending Encroachment(s)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 presence of the Encroachments. The Owner shall protect, hold harmless, and
indemnify the City of Oshkosh against all actions, claims and demands of any kind or
February 27, 2019 4
character whatsoever which are related to the Encroachments. 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 Encroachments extend into the right-of-way, the Owner's
property liability insurance shall cover all potential liabilities related to the Encroachments.
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 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
Encroachments.
Q. The City's permission allowing these Encroachments 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 436 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, as well as any enforcement delay for any
February 27, 2019 5
reason, 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.
W. This Agreement shall incorporate and apply all immunities and limitations provided to and
protecting municipalities within the Wisconsin Statutes, and shall not act as any waiver of
such immunities and limitations,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 purposes of giving notice regarding the basis for certain
attachments to the building.
Y. This Agreement shall become effective upon the last date a party signs below.
PROPERTY OWNER:
Tod- ar Prope Management, LLP
By:
mu Liv\vvv`d
(print name) (print title at LLP) YY\-6.)1/\ /(
STATE OF WISCONSIN )
ss.
WINNEBAGO COUNTY ) ' 1 1,,`
Personally came before me this 1N day of Vk(JSCY ,2019,the above-named TCC/6 CLlmm1(`�j� 5„to me
known to be the person who executed the foregoing documen nd acknowledged the same. .1
otary Public,State of Wiscon;in
My Commission expires: 31�j,2CSL0
CITY OF OSHKOSH
By: tel: v-�-����� An 1:
Mir k A. Rohloff, City Manager Pamela R. Ubrig, City erk
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
2_Personally came before me this_ 1day of l}'yj rck ,2019,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 pers who executed the
foregoing instrument,and to me known to be such officers of said corporation,and acknowledged that they xecut d the foregoing
instrument as such officers as the deed of said corporation,by its a •
Notary P lie,S to of Wisconsin
m My Comi expires: J 11.j ' 1—le ZCTIO
February 27, 2019 6
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Exhibit A
pg. 2 of 3
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Building Permit Application
(...ity of Oshkosh Department of Community Dcvel.Qpinciit
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htteliarritat Spate Knits-will te bbratirid for the folliming:
Permits Matti-101'v ___ La,Numtoo
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,Value*Mb $ jviri, C (Vlitm for ow 41144 k Elixir Is tot)to dm**sods(*city in oNtelotig:omit.too ibe oitAppliews.)
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Exhibit A
pg. 3 of 3