HomeMy WebLinkAboutEncroachment 808 Oregon Street 03-0100-0000 IllilhilI111M'
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Encroachment Agreement Tx:4368041
DOC# 1789368
Document Number NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
05/17/2019 09:14 AM
RECORDING FEE:
PAGES: 10
? oO
Recording Area
Name and Return Address
City Attorney's Office
PO Box 1130
Oshkosh,WI 54903-1130
90301000000
Parcel Identification Number
CITY OF OSHKOSH
AND
PROPERTY OWNER
This document drafted by:
David J.Praska,Deputy City Attorney
City of Oshkosh,Wisconsin
May 10, 2019 1
r '
REVOCABLE ENCROACHMENT AGREEMENT
This Agreement is between the City of Oshkosh ("City"), and Barry Lavaque ("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 808 Oregon Street, which is
more particularly described as follows:
Lot Eleven(11); also the North 18 feet of the West 13 feet of Lot Twelve (12); also
the South 22 '/z feet of Lots One(1)and Two(2)all of Block Nine(9), in the Plat of
the ORIGINAL THIRD WARD, in the Third Ward, City of Oshkosh, Winnebago
County, Wisconsin,per Leach's Map of 1894, subject to the right of way across the
East 8 feet of said Lot 2 as granted by Deed in Winnebago County Registry in
Volume 377 Page 380.
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 Oregon Street.The City currently
owns and/or is responsible for maintenance of the right-of-way for this section of Oregon Street and
therefore has the authority to enter into this Agreement.
The Owner proposes to install a Sign 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
fourteen inches(14")into the right-of-way have a minimum distance of eight feet(8'0")between the
sidewalk and the bottom of the Sign.
No structure or object is allowed to encroach into any public right-of-way without the City's
permission. The proposed Sign would encroach into the public right-of-way and therefore requires
the City's permission. An existing awning and a small part of the building's parapet encroaches into
the right-of-way, with the date and circumstances this was installed is unknown. The City has no
record of the awning or parapet installation and as a result the City has not previously given its
permission for this existing encroachment. The Projecting Awning and Parapet are greater than eight
feet(8' 0") above the sidewalk, and each extends fourteen inches (14") into the right-of-way.
The primary purpose of this Encroachment Agreement was to address the new Sign,but upon
discovering the Projecting Awning and Parapet, both encroachments will be addressed in this
Encroachment Agreement. The Projecting Awning and Parapet are identified in Exhibit A,which is
attached and incorporated into this Encroachment Agreement.
The City has reviewed the Owner's request to allow the Projecting Sign, Awning, and
Parapet. The City will allow the placement of the new Sign and will allow the existing Projecting
Awning and Parapet to remain subject to the City's revocable permission. All encroachments will be
allowed subject to the terms and conditions identified in this Agreement. Both parties agree that all
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 follow.
1. The City grants permission to the Owner to attach a sign 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 Oregon Street,provided that this Encroachment is materially similar
May 10, 2019 2
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. The lowest element of the approved Sign 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 awning and parapet that
extends into the right-of-way fourteen inches(14"). This Encroachment will be allowed
to continue projecting into the right-of-way of Oregon 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.
5. 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 Encroachments.
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
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
May 10, 2019 3
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.
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.
h. 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 fails 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.
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 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
Encroachments. This indemnification is broad, and shall include damages, attorney's
May 10, 2019 4
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.
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
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 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 808 Oregon 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.
15. 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
May 10, 2019 5
protecting municipalities within the Wisconsin Statutes,regardless of whether 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]
May 10, 2019 6
PROPERTY OWNER:
By: y
Barry La ue, Owner
STATE OF WISCONSIN )
) ss.
WINNEBAGO COUNTY )
Personally came before me this /3 7 day of /144' ,2019,the above-named Barry Lavaque to me known to be
the person who executed the foregoing document and acknowledged the
same.
r v—'
Notary Public,State of Wisconsin
My Commission expires:% 231262.Z
CITY OF OSHKOSH
And: nll ✓(.4)
mark A. Rohloff, CityManager Pamela R. Ubrig, Citylerk
g g�
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally came before me this l / day of ,2019,the above-named Mark A.Rohloff,City Manager,
and Pamela R.Ubrig,City Clerk,of the City of Oshkosh,a munici 1 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 a ted the foregoing
instrument as such officers as the deed of said corporation,by its authori.•.
APII ad
.ry Public,S .f isc ns
My Commission expires: 0 ��
May 10, 2019 7
L Building Permit Application
City of Oshkosh Department of Community Development
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Address
Applicant wner ' Contractor Tenant Other(describe)
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Owner/ Name �j f &r7 Phone 7(5 7--q>— $o j
Tenant
Address L2 O(2-e 6ax) S% Oc 1++Cei�r+ w Email L /-1 (' 'S Y d ti
Contractor Company Name _Phone
Contact Email
Address
State Credential#'s
Dwelling Contractor Qualifier# Dwelling Contractor# Building Contractor Registration#
Architect/ Company
Designer p y Name K�� �l� Phone �1'ZD' �— ,37'�— 5 3
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Contact Email
Address 5-S-- -v' 5^7tit A-u C2c14+z 14- 5-Li9U'7.--
Permit Type Industrial Commercia-Th Multifamily
Category Ground Sign(Pole/Monument) Wall Sign(<18"from wall face) Projecting Sign(>18"from wall face)
Project .a/(p E.g., A Si JZr)ftAIN& .
Description
Mechanical Separate permits will be obtained for the following:
Permits Electrical by UL Numbers
Value of Job
$ (Value for materials&labor is req.to ensure consistency in accessing permit fees for all applicants.)
Payment by: Check # Cash Permit Fee Account
I certify the above information is complete and accurate. Any deviations from the above submitted information may require additional permits to be
obtained. I acknowledgewl and agree to these terms.
Name: (31 L 1// GLf (Please print) Date: 61 1ZY
Signature: 4- 1/29/2015
Exhibit A
Page 1 of 3
1)3'X 8'ALUMALITE SIGN$420.00
OSHKOSH JEWELERS
DIAMONDS • REPAIR • DESIGN
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Exhibit A
Page 2 of 3
2)4`X S ALUMAUTE SIGNS $960.00
DSHKOSH JEWELERS 1rosHKosiBARS.cou
DIAMONDS • REPAIR • DESHIN grwery Ditig*M.VAnal,1I.mTwn
920.230.3300 Poly DosReM''«,n sw�e.»
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Exhibit A
Page 3 of 3