HomeMy WebLinkAbout09. 22-435OCTOBER 25, 2022 22-435 RESOLUTION
(CARRIED 7-0 LOST _______ LAID OVER _______ WITHDRAWN _______)
PURPOSE: APPROVE DISPOSITION OF VACANT PROPERTY LOCATED
SOUTH OF THE 2100 BLOCK OF WEST 9TH AVENUE TO
BOZEMAN CAPITAL GROUP, LLC
INITIATED BY: CITY OF OSHKOSH
PLAN COMMISSION RECOMMENDATION: Approved
BE IT RESOLVED by the Common Council of the City of Oshkosh that the vacant
property located south of the 2100 Block of West 9th Avenue is hereby declared surplus.
BE IT FURTHER RESOLVED by the Common Council of the City of Oshkosh that
the proper City officials are hereby authorized and directed to execute any and all
documents necessary to sell the vacant property located south of the 2100 Block of West
9th Avenue to Bozeman Capital Group, LLC.
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
TO: Honorable Mayor and Members of the Common Council
FROM: Mark Lyons, Planning Services Manager
DATE: October 20, 2022
RE: Approve Disposition of Vacant Property Located South of the 2100 Block of West
9th Avenue to Bozeman Capital Group, LLC
BACKGROUND
The subject area is approximately 9,470 sq. ft. of the existing approximately 1.99 acre parcel,
currently part of City-owned storm water easement/pond area. The storm water easement/pond
is surrounded by single family residential and commercial uses to the north, commercial uses
to the east, and multi-family residential uses to the south and west.
ANALYSIS
The petitioner is requesting disposition of the northern portion of the subject property to allow
the area to be combined with property fronting West 9th Avenue for future commercial
development. Staff does not have concerns with disposition of this portion of the subject lot as
it not needed for the storm water easement area and it will assist future development of the area.
The land disposition will also provide more uniform lot configurations for the area.
FISCAL IMPACT
The petitioner has agreed to a purchase price of $34,565.00 for the subject area. The approximate
9,470 sq. ft. area will also result in a minor increase in the assessed value of the property as it is
incorporated into the large commercial redevelopment of the adjoining properties.
RECOMMENDATION
The Plan Commission recommended approval of the disposition on July 19, 2022. Please see the
attached staff report and meeting minutes for more information.
Respectfully Submitted, Approved:
Mark Lyons John Fitzpatrick
Planning Services Manager Assistant City Manager / Director of
Administrative Services
PLAN COMMISSION STAFF REPORT JULY 19, 2022
ITEM III: LAND DISPOSITION OF VACANT PROPERTY, SOUTH OF 2100 BLOCK W 9th
AVENUE
GENERAL INFORMATION
Petitioner: Bozeman Capital Group LLC
Owner: City of Oshkosh
Action Requested:
Land disposition of approximate 9,800 square foot of a parcel of vacant land immediately south of
2125 W 9th Avenue.
Applicable Ordinance Provisions:
None
Property Location and Type:
The subject property is a vacant approximately 1.99 acre parcel, currently part of City-owned storm
water easement area. The storm water easement/pond is surrounded by single family residential
and commercial uses to the north, commercial uses to the east, and multi-family residential uses to
the south and west.
Subject Site
Existing Land Use Zoning
Vacant I
Adjacent Land Use and Zoning
Existing Uses Zoning
North Residential SR-5
South Residential MR-12
East Residential SR-5
West Commercial SMU
Comprehensive Plan
Land Use Recommendation Land Use
2040 Comprehensive Land Use Recommendation Community Facility
Item III – Land Disposition – W 9th Ave. 2
ANALYSIS
The petitioner is requesting disposition of the northern portion (approximately 123’ X 82’) of the
subject property to allow the area to be combined with property fronting W 9th Avenue for future
commercial development. Staff does not have concerns with disposition of this portion of the
subject lot as it not needed for the storm water easement area and it will assist future development
of the area. The land disposition will also provide more uniform lot configurations for the area.
RECOMMENDATION/CONDITIONS
Staff recommends approval of the land disposition as proposed, with the following finding:
1. This remnant parcel is no longer needed for public use.
The Plan Commission recommended approval of the land disposition on July 19, 2022. The
following is their discussion on the item.
Site Inspections Report: No commissioners reported visiting the site.
Staff report accepted as part of the record.
Land disposition of approximate 9,800 square foot of a parcel of vacant land immediately south of
2125 W 9th Avenue.
Item III – Land Disposition – W 9th Ave. 3
Mr. Slusarek presented the item and reviewed the site and surrounding area as well as the land use
and zoning classifications in this area. The subject property is a vacant approximately 1.99 acre
parcel, currently part of City-owned storm water easement area. The storm water easement/pond is
surrounded by single family residential and commercial uses to the north, commercial uses to the
east, and multi-family residential uses to the south and west. Staff recommends approval with the
findings and conditions as listed in the staff report.
Mr. Perry opened up technical questions to staff.
Ms. Propp asked if this was being sold to Bozeman Capital Group and what lots it would be
combined with.
Mr. Lyons said that the potential developer is looking at acquiring all the remaining homes for a
development site and this would be combined with those. It would be purchased from the city.
Mr. Perry asked for any public comments and asked if the applicant wanted to make any
statements.
Peter Lang; The Morgan Partners, 601 Oregon St, said they currently have the three residential
properties adjacent to this under contract. The plan is to combine them into a single commercial
parcel. This would allow them to square off the parcel with the neighboring parcels. They do not
have specific users in mind, but are marketing to commercial. They plan to go through a rezoning
application when these are combined into a single parcel.
Mr. Perry closed public comments and asked if the applicant wanted to make any closing
statements.
There were no other public comments on this item.
Mr. Lang asked for confirmation that they wouldn’t be eligible to purchase this parcel until they
closed on the neighboring parcels.
Mr. Lyons said that they are still working on the final terms on what the purchase agreement would
look like but it will probably include something similar to that.
Motion by Propp to adopt the findings and recommendation as stated in the staff report.
Seconded by Marshall.
Mr. Perry asked if there was any discussion on the motion.
Motion carried 9-0.
LAND DISPOSITION
9TH AVE
PC: 7-19-2022
AMERICAN INVESTMENTS LLC
1585 W 20TH AVE
OSHKOSH, WI 54902
WESNER REAL ESTATE LLC
1440 S COMMERCIAL ST
NEENAH, WI 54956
PAUL W/JAMES J CRANE
2729 OAKDALE CT
OSHKOSH, WI 54904
CUMBERLAND COURT MASTER
DEV LLC
600 MERRITT AVE
OSHKOSH, WI 54901
GAIL L DEMLER
2115 W 9TH AVE
OSHKOSH, WI 54904
W 9TH AVW 9TH AV
CUMBERLAND TR
CUMBERLAND TRGRACELAND DRGRACELAND DRC:\Users\Public\Desktop\2020 Plan Commission Site Plan Map Template.mxd User: hannahs
Prepared by: City of Oshkosh, WI
Printing Date: 7/5/2022
1 in = 120 ft1 in = 0.02 mi¯9TH AVE LAND DISPOSITION9TH AVE LAND DISPOSITION
City of Oshkosh maps and data are intended to be used for general identification purposes only, andthe City of Oshkosh assumes no liability for the accuracy of the information. Those using theinformation are responsible for verifying accuracy. For full disclaimer please go towww.ci.oshkosh.wi.us/GISdisclaimer
SR-5
SMU
I
I
SMU-PD
MR-12
MR-12
I
I
DR-6
I-PD
SMU-PD
SR-5
SMU-PD
DR-6
IMR-12
SMU-PD
SMU-PD
SMU-PD
Westhaven Golf CourseAbbey Area Park!"#$41
!"#$41
W 9TH AVW 9TH AV
SSWWEESSTTHHAAVVEENNDDRRSSKKOOEELLLLEERRSSTTSSWWAASSHHBBUURRNNSSTTABBEY AVABBEY AV
GGRREEEENNFFIIEELLDDTTRRMM AA RR IICCOOPP AA DD RR
H
H
EE
RRIITTAAGGEETT RRGGRRAACCEELLAANNDDDDRRCCUUMMBBEERRLLAANNDDTTRRGOLDEN AVGOLDEN AV
AARRDDMMOO
RR
EE
TTRRHENNESSY STHENNESSY STCCAAMMDDE
E
NN
LL
AAARCADIA AVARCADIA AV
DD IICC KKIINNSSOONN AAVV
KKIINNGGSSTTOO NN PP LLMMEENNAARRDD DDRR
C:\Users\Public\Desktop\2020 Plan Commission Site Plan Map Template.mxd User: hannahs
Prepared by: City of Oshkosh, WI
Printing Date: 7/5/2022
1 in = 500 ft1 in = 0.09 mi¯9TH AVE LAND DISPOSITION9TH AVE LAND DISPOSITION
City of Oshkosh maps and data are intended to be used for general identification purposes only, andthe City of Oshkosh assumes no liability for the accuracy of the information. Those using theinformation are responsible for verifying accuracy. For full disclaimer please go towww.ci.oshkosh.wi.us/GISdisclaimer
C:\Users\Public\Desktop\2020 Plan Commission Site Plan Map Template.mxd User: hannahs
Prepared by: City of Oshkosh, WI
Printing Date: 7/5/2022
1 in = 100 ft1 in = 0.02 mi¯9TH AVE LAND DISPOSITION9TH AVE LAND DISPOSITION
City of Oshkosh maps and data are intended to be used for general identification purposes only, andthe City of Oshkosh assumes no liability for the accuracy of the information. Those using theinformation are responsible for verifying accuracy. For full disclaimer please go towww.ci.oshkosh.wi.us/GISdisclaimer
Lang 10.5.22 (v5)
HB: 4873-1308-8293.3
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT (“Agreement”) is made and entered into by and among THE 6TH WARD LLC (“Purchaser”), and THE CITY OF OSHKOSH (“Seller”), effective as of October , 2022 (“Effective Date”).
RECITALS
A. Seller owns the Property described in Paragraph 1 below.
B. Seller desires to sell to Purchaser and Purchaser desires to purchase from Seller the real property described below, upon the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the Recitals, the covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Property to be Sold and Purchased. Upon and subject to the terms, covenants and conditions hereinafter set forth, Seller shall sell and convey to Purchaser and Purchaser shall purchase and acquire from Seller, on the Date of Closing (as hereinafter defined) all right, title and interest of Seller in and to land depicted on the attached Exhibit A as “approximately 9,470 square feet”, located in Oshkosh, Wisconsin (“Property”). The Property is currently part of a larger group of parcels assembled by the Seller and collectively used for public storm water detention basin. Therefore, a land division consistent with applicable Wisconsin law will be necessary prior to the sale and purchase. Details of the land division are described elsewhere in this Agreement.
2. Purchase Price. The purchase price (“Purchase Price”) for the Property shall be the amount of Thirty-Four Thousand Five Hundred Sixty-Five and No/100 Dollars ($34,565.00) and shall be payable to Seller by immediately available funds on the Date of Closing, which shall be paid through escrow
through Schmitt Title, LLC, 45 W. 6th Ave., Oshkosh, WI 54902; Attn: Nick Skoglind; Nick@schmitt-title.com (“Title Company”).
3. Seller’s Information Deliveries. Seller shall deliver to Purchaser within ten (10) business days of the Effective Date the following information to the extent it is related to the Property and is in the possession of the Seller, and to the extent such information applies directly to this Property to be sold and purchased. The Seller purchased the Property for public purposes in 2012 and will not have information relating to time periods prior to that date. Seller acknowledges that it retains a considerable number of documents related to the parcel from which the Property will be divided and relate to that portion of the parcel within which the storm water detention basin was constructed but are not related to the Property or
condition of the Property. All documents are available for Purchaser to review at the Seller’s office. However, the burden of collecting and transmitting these documents would be significant and due to the lack of relevance, the unrelated documents will not be provided. To the extent they exist, are related to the
condition of the Property, and are in possession of the Seller, the following will be provided: Copies of all written leases; copies of all contracts and agreements pertaining to the Property; copies of any and all
Lang 10.5.22 (v5)
HB: 4873-1308-8293.3
reports, audits, investigations or studies in Seller’s possession or control relating to the Property (including, without limitation, soils reports and Phase I and Phase II environmental reports); a copy of Seller’s existing
survey of the Property. In the event the Purchaser wishes to review other documents related to the larger area of parcels assembled to construct the storm water detention basin, such records will be made available to view but will not be provided to the Purchaser.
4. Title Insurance.
4.1 Title Deliveries. Seller shall provide Purchaser, at Seller’s expense, not more than ten (10) days after the Effective Date, a title insurance commitment (hereinafter referred to as the “Title
Commitment”) issued by the Title Company, pursuant to which the Title Company shall agree to issue to Purchaser a current standard ALTA Owner’s Policy of Title Insurance in the full amount of the Purchase Price, insuring good and marketable title to the Property (expressly including all easements and
appurtenances thereto) and containing a complete copy of each such easement, restriction, limitation or condition of title which is referred to in the Title Commitment, as well as current special assessment information. The Title Commitment will address issues related to the larger parcel from which the Property
will be divided and may therefore include easements or other encumbrances that are not relevant to the Property, although the final title policy will address only the Property. The title policy shall be issued at Closing and shall include, at Seller’s expense, and a gap coverage endorsement.
4.2 Survey. The Property to be Sold and Purchased is currently part of a larger parcel, tax parcel number 91311870100. The Property will need to be divided from the larger parcel in a manner required or allowed by law. Purchaser will be solely responsible for all costs associated with this land
division. Dividing the Property from the larger parcel will result, at least temporarily, a land-locked parcel. The Property shall be incorporated into an adjoining parcel or parcels. The land division for which Purchaser is responsible shall also combine into one lot the remainder of tax parcel 91311870100, and the
other parcels assembled for the public storm water drainage basin, namely tax parcels: 91311840100, 91328113001, and 91311860100. Although it is a requirement that the Seller’s assembled parcels end up as one (1) lot in the required land division, Purchaser may address the Property division in any lawful
manner. For example, Purchaser may create the Property as a landlocked parcel and then combine the Property into the Adjacent Properties, or Purchaser may include the Property as part of a parcel with the Adjacent Properties as part of the same division that combines Seller’s assembled parcels into one Lot. Purchaser is responsible for obtaining level of detail on the land division document that Purchaser requires to achieve any other of its goals or objectives identified herein, including the deletion any survey exceptions on the Title Commitment.
4.3 Objection to Title. On or before the expiration of ten (10) business days after receiving the Title Commitment Purchaser may object in writing to any matter identified on the Title Commitment or revealed on the Survey. Seller shall have five (5) days after receiving such objection notice, or such other time period as the parties set, to agree to correct the condition of title or matter of survey to the reasonable satisfaction of Purchaser. If the condition of title or matter of survey is not acceptable to Purchaser and Seller does not agree to correct it within such five (5) day period as required herein, Seller shall so notify Purchaser in writing whereupon Purchaser may, at its election, either (a) terminate this Agreement by written notice to Seller given within ten (10) days following receipt by Purchaser of the foregoing notice from Seller, following which Purchaser shall have no further obligation or responsibility hereunder, or (b) proceed to close the transaction and receive such title as Seller is able to convey without relieving Seller’s obligation to convey marketable title. All exceptions to title which are not objected to by
Purchaser shall be deemed Permitted Exceptions.
Lang 10.5.22 (v5)
HB: 4873-1308-8293.3
4.4 “Permitted Exceptions” shall mean all exceptions contained in the Title
Commitment or Survey (a) to which Purchaser does not object as herein provided or (b) as to which Purchaser has waived or is deemed to have waived its objection;
5. Inspections; Due Diligence.
5.1 Access. At any time from and after the Effective Date through the Date of Closing, Purchaser and its agents and contractors, shall have the right to enter the Property during normal business
hours and to obtain such information and documents from Seller to investigate the condition of title to the Property, the physical condition of the Property, the zoning of the Property, and all matters relevant to the acquisition, usage, operation, valuation and marketability of the Property, as Purchaser deems appropriate.
Purchaser shall not access or enter the Property through or across any other property of the Seller. Such right of investigation shall include, without limitation, the right to have made, at Purchaser’s expense, any appraisals, and any tests, studies and inspections of the Property as Purchaser may deem reasonably
necessary or appropriate, including, without limitation, soil borings, structural and mechanical, tests and inspections, and environmental inspections, tests and audits (including, but not limited to, a Phase I and Phase II environmental site assessment). Purchaser shall repair and restore any damage to the Property to
the extent caused by Purchaser’s investigations (provided that such obligation shall not apply to any damages relating to any pre-existing condition of or at the Property). During this Inspection period the Purchaser shall not leave, store, or park any equipment, vehicles, or materials on the Property overnight. Also during this period, the Purchaser shall be obligated, at its expense, to maintain mow, cut, and maintain grass and other vegetation in a manner consistent with the City of Oshkosh municipal code.
5.2 Termination Right. The period commencing on the Effective Date and ending on the date that is forty-five (45) days after the Effective Date is referred to herein as the “Inspection Period.” If Purchaser, in its sole and absolute discretion, determines that the Property is unsuitable for its intended use, or is unsatisfied with the Property for any reason or no reason, Purchaser shall have the right to
terminate this Agreement at any time by delivering notice to Seller on or before the expiration of the Inspection Period. Upon such termination, Purchaser shall have no further right or obligation under this Agreement, excepting all obligations to repair and restore any damage to the Property as described in
paragraph 5.1, above. For purposes of clarification, the foregoing termination by Purchaser shall also terminate any corresponding option to purchase that is stated or implied herein.
5.3 Independent Consideration. Seller and Purchaser acknowledge and agree that this
Agreement is intended to be binding and enforceable and each party waives any right to challenge the enforceability of this Agreement based on discretion afforded Purchaser in evaluating the fulfillment of the contingencies or conditions contained in this Agreement. Purchaser covenants and agrees to exercise good
faith in seeking to satisfy such contingencies and conditions. Seller acknowledges that such efforts by Purchaser will require Purchaser to expend time and resources in investigating the Property and that such expenditures constitute good and sufficient consideration to Seller for Seller’s acceptance of this
Agreement. If this Agreement is deemed unenforceable, Purchaser and Seller agree that one hundred dollars ($100.00) paid by Purchaser to Seller shall be non-refundable and represent good and sufficient option consideration to Seller for agreeing to accept this Agreement. Purchaser and Seller also agree that upon
waiver of the last of any contingency or condition under this Agreement, that this Agreement shall be deemed affirmed without inclusion of the waived contingencies or conditions.
6. Seller’s Representations and Warranties. Seller represents and warrants to Purchaser, as a
Lang 10.5.22 (v5)
HB: 4873-1308-8293.3
material inducement to Purchaser to enter into this Agreement and purchase the Property, as of the Effective Date and the date of Closing as follows:
6.1 No Possessory Rights. As of the Date of Closing, there will be no parties in possession of the Property or any portion thereof, and there will be no other rights of possession, use or otherwise regarding any part of the Property which have been granted to any person or entity.
6.2 No Leases or Contracts. As of the date of Closing, there shall be no leases, contracts or agreements (including, but not limited to, leases, maintenance, repair, operation, use, billboard,
advertising, management, license, franchise, service, use, occupancy, or other contracts) which shall be binding upon Purchaser or which shall run with the land or bind or affect any part of the Property after the Closing.
6.3 No Third Party Interests. There is no option, right of first refusal, contract or other
agreement of any kind or nature with respect to the purchase, sale or lease of the Property, or any portion thereof.
6.4 No Actions. There are no actions, suits, proceedings or claims pending or, to the
knowledge of Seller, threatened with respect to or in any manner affecting the Property or the ability of Seller to consummate the transactions contemplated by this Agreement.
6.5 Title to Property. Seller holds fee simple title to the Property and Seller has no
notice or knowledge of any planned, pending or contemplated condemnation or similar action or proceeding with respect to the Property nor any part thereof.
6.6 Litigation. There is no pending or threatened litigation that affects the Property or that could affect the transaction contemplated hereby.
7. Conditions to Obligations to Close. Purchaser’s obligation to close shall be contingent
upon Purchaser’s closing on the adjacent properties located at 2125 West 9th Avenue, Oshkosh, Wisconsin Tax Parcel 1311870000 and 2107 West 9th Avenue, located in Oshkosh, Wisconsin Tax Parcels 1311850000 and 1328112001 (“Adjacent Properties”) on or before the Closing Date. In the event
Purchaser notifies Seller of its intention to close on the Property based on the timing of Purchaser’s ability to close on the Adjacent Properties, Seller shall take all reasonable actions to complete its obligations described in this Agreement. The Seller’s inability to comply with its requirements of this Agreement
within a time frame that is based on Purchaser’s simultaneous closing on the Adjacent Properties shall not breach or violate a term of this Agreement. If Purchaser is not able to close on the purchase of the Adjacent Properties on or before the Closing Date set forth below, both Purchaser and Seller shall each have the right to
terminate this Agreement. Under no circumstance shall Seller’s actions or inactions related to this Agreement result in any liability or responsibility for any damages that may be sustained by Purchaser related in any way to the Adjacent Properties, regardless of whether such actions or inactions are or could
be considered negligent or a breach of any term of this Agreement.
8. Closing.
8.1 Time of Closing. The Closing shall take place in escrow with the Title Company on the date that is six (6) months after the Effective Date, unless otherwise agreed to by Purchaser and Seller (the “Closing
Lang 10.5.22 (v5)
HB: 4873-1308-8293.3
Date,” “Date of Closing,” or “Closing”). Purchaser’s right to purchase the Property shall terminate without further notice six (6) months after the Effective Date. In the event a Title Company or other entity reviewing the title to the
Property requires documentation memorializing the termination of this Agreement, both parties agree to execute all reasonably necessary documents to accomplish this goal. Purchaser’s obligations to repair damages caused by its investigation of the Property, along with its obligations to pay for any survey or land division, will survive the
termination or expiration of this Agreement.
8.2 Seller’s Deliveries at Closing.
8.2.1 Deed. Seller shall deliver to Purchaser a duly executed and acknowledged warranty deed conveying the Property to Purchaser, free and clear of all matters affecting
title, except for the Permitted Exceptions.
8.2.2 Title Policy. Seller shall, at Seller’s expense, cause the Title Company to issue the title policy pursuant to the Title Commitment as required hereunder.
8.2.3 Possession. Full possession of the Property shall be delivered to
Purchaser, free and clear of all personal property and debris.
8.2.4 Affidavit. Seller shall execute and deliver to Purchaser and Title Company an affidavit that evidences that Seller is exempt from the withholding requirements of Section 1445 of the Internal Revenue Code.
8.2.5 Title Documents. Seller shall execute and deliver to the Title Company such agreements, affidavits and statements concerning parties in possession of the Property or claims for mechanic’s or construction liens or broker’s liens, as may be required by Title Company in order
to issue the title policy.
8.2.6 Authority of Seller. Seller shall deliver to Purchaser and Title
Company a copy of any and all documents reasonably required by the Title Company authorizing and approving the sale of the Property by Seller and authorizing the person signing all documents for and on behalf of Seller.
8.2.7 Additional Documents. Seller shall execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, any and all conveyances, assignments and all other instruments and documents as may be consistent with the terms of this Agreement, and reasonably necessary in order to complete the transaction herein provided.
8.3 Purchaser’s Deliveries.
8.3.1 Purchase Price. Purchaser shall deliver the Purchase Price.
8.3.2 Additional Documents. Purchaser shall execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, any and all conveyances, assignments and all other instruments and documents as may be reasonably necessary in order to complete the transaction
Lang 10.5.22 (v5)
HB: 4873-1308-8293.3
herein provided and to carry out the intent and purposes of this Agreement.
9. Prorations and Adjustments.
9.1 Taxes/Assessments. N/A.
9.2 Closing Costs. Seller shall pay the premium for the title policy (including the GAP endorsement); the cost to prepare the closing documents; all real estate transfer taxes, stamps, and fees; sales taxes; and all recording costs. Purchaser and Seller shall each pay one half of any escrow closing charges. Each party shall pay for own attorneys’ fees.
9.3 Settlement Statement. At the Closing, Seller and Purchaser shall execute a closing
settlement statement to reflect the credits, prorations and adjustments contemplated by or provided for in this Agreement.
9.4 Post-Closing Adjustments. Purchaser and Seller shall undertake, following
Closing, to adjust between themselves, as of the Closing Date, any income or expenses of the Property that are the subject of proration but were not adjusted on the settlement statement. Seller shall pay promptly upon receipt any and all bills relating to the operation of the Property for periods prior to Closing.
Notwithstanding the forgoing, Purchaser shall pay promptly upon receipt any and all bills caused by, or related to, its activities on the Property related to its Investigation of the Property from the Effective Date through the Closing Date. Purchaser shall not allow any liens to be attached to the Property that are related
to any work or inspections performed on the Property related to its Inspection of the Property from the Effective Date through the Closing Date and shall remove any such lien that is attached to the Property.
10. Remedies.
10.1 Breach by Seller. Time is of the essence with respect to each and all of Seller’s
obligations hereunder. If Seller fails to comply with any of its obligations hereunder, Purchaser, as its sole and exclusive remedy, shall be entitled to treat this Agreement as terminated, and both parties shall be discharged from all duties and further performance hereunder except for Purchaser’s obligation to return
the Property to the same or similar condition as existed prior to its investigation and due diligence period.
10.2 Breach by Purchaser. Time is of the essence with respect to Purchaser’s obligations hereunder. If Purchaser fails to complete the purchase of the Property as herein provided by
reason of any default by Purchaser, Seller, as its sole and exclusive remedy, shall be entitled to treat this Agreement as terminated, and both parties shall be discharged from all duties and further performance hereunder.
11. General Provisions.
11.1 Brokers. Seller has no actual or implied agreement with a real estate broker or
salesperson. Under no circumstance shall Seller be obligated to pay any brokerage, commission, finder’s fee, or similar expense related to the Property. Each party represents and warrants to the other that there are no brokerage or finder’s fees or commission that are or may be due in connection with the transaction
Lang 10.5.22 (v5)
HB: 4873-1308-8293.3
contemplated by this Agreement. As required by law, Purchaser and Seller are each advised that one or more principals of the Purchaser entities are licensed real estate brokers and/or salespersons. Purchaser
affirms that no brokerage, finders fees, commissions, or other similar claims will be submitted, presented, billed, or invoiced to the Seller by the Purchaser, or the aforementioned principals that are licensed real estate brokers and/or salespersons and will provide waivers or affidavits from the referenced principals
upon request of the Seller or Title Company.
11.2 Further Assurances. Each of the parties hereto undertakes and agrees to execute and deliver such documents, writings and further assurances as may be required to carry out the intent and
purposes of this Agreement.
11.3 Entire Agreement. No change or modification of this Agreement shall be valid unless the same is in writing and signed by the parties hereto. No waiver of any of the provisions of this
Agreement shall be valid unless in writing and signed by the party against whom such waiver is sought to be enforced. This Agreement contains the entire agreement between the parties relating to the purchase and sale of the Property. All prior negotiations between the parties are merged into this Agreement; and there
are no promises, agreements, conditions, undertakings, warranties or representations, oral or written, express or implied, between the parties other than as herein set forth.
11.4 Survival. All of the parties’ representations, warranties, covenants and agreements hereunder, to the extent not fully performed or discharged by or through the Closing, shall not be deemed merged into any instrument delivered at Closing and shall survive Closing.
11.5 Dates. If any date set forth in this Agreement for the delivery of any document or the happening of any event (such as, for example, the expiration of the Inspection Period or the Closing Date) should, under the terms hereof, fall on a weekend or holiday, then such date shall be automatically extended to the next succeeding weekday that is not a holiday.
11.6 Governing Law / Venue. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Wisconsin. The venue for resolving any dispute related to this agreement shall be Winnebago County, Wisconsin.
11.7 Notices. All notices, demands or other communications required or permitted to be given hereunder shall be in writing, and any and all such items shall be deemed to have been duly delivered upon personal delivery; or as of the immediately following business day after deposit with Federal Express or a similar overnight carrier service, addressed as follows; or as of the day when delivered if by facsimile or electronic mail to the numbers and addresses set forth below.
If to Purchaser: c/o Peter Lang 615 S. Main Street Oshkosh, WI 54902
E-mail: peter@themorganpartners.com
With a copy to: Brad Dallet Husch Blackwell LLP
Lang 10.5.22 (v5)
HB: 4873-1308-8293.3
511 N. Broadway, Suite 1100 Milwaukee, WI 53202
E-mail: brad.dallet@huschblackwell.com
If to Seller: City of Oshkosh
Department of Community Development 215 Church Ave Oshkosh, WI 54902
Attn: Kelly Nieforth, Director E-mail: knieforth@ci.oshkosh.wi.us
Any address or telecopy number fixed pursuant to the foregoing may be changed by the addressee by notice given pursuant to this Paragraph.
11.8 Headings. All headings used in this Agreement are for purposes of convenience and reference only, and shall not be construed as modifying or affecting the terms hereof.
11.9 Assignment. Purchaser shall notassign this Agreement, in whole or in part, without
the consent of Seller. Seller shall not have any obligation to approve any assignment.
11.10 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and assigns.
11.11 Counterparts/Facsimile. This Agreement may be executed in any number of counterparts and by facsimile copy or “PDF” copy delivered by electronic mail, each of which shall be deemed to be an original instrument and all of which taken together shall constitute a single instrument. [SIGNATURE PAGE TO FOLLOW]
Lang 10.5.22 (v5)
HB: 4873-1308-8293.3
DATED as of the last date written below.
PURCHASER:
THE 6TH WARD LLC
By:
Print Name: Its:
SELLER:
THE CITY OF OSHKOSH By:
Print Name: Mark A. Rohloff Its: City Manager
By: Print Name: Jessi Balcom Its: City Clerk
Peter Lang
Authorized Member
10 HB: 4873-1308-8293.3