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HomeMy WebLinkAboutParking Easement/MNT Agreement - 09/13/2004 Sop.13. 1004 10:13AM 1\[0.0355 p. PMONt 414.276.1760 fAX 414.276.1764 f mail mo¡I@¡"fi,o,J",.Jfi,Ii.,.m -_m'_'__~,._-------------- FACSIMILE TRANSMITTAL Date: September 13, 2004 City of O$hkosh Fax: 920.236.5053 Aftn: Matt Tucker Pages: 13 (Including this sheet) To: From: Roger C. Phillips Cc: Re: Marcus Cinema Addition S&H Job No; 2790 Subject; 0 Urgent Parking Agreement ¡:g¡ For your Review 0 Please Reply Comments: Matt: Attached is the Par1ting Easement and Maintenance Agreement as per your request. Darryn 6urich was Jooking to see if he had a copy of this Agreement on file, if he doesn't find the one we gave him, please let him know I have sent this one to you. Thank you, Roger If all pages are not received In good order, please notify sender - Phone 414.276.1760 This t",nsmission is from Schroeder and Holt Architects ltd. and may contain information whiCh is confidential and proprietary. If you are not the addressee, any disclosure, copying or distribvtion or use of the contents of this message is expressly prohibited. If yov have received this transmission in error, please destroy it and notify us Immediately at 414-276-1760. Sop.IS. 2004 10:2S,AM No.O355 p. 2 PARKING EASEMENT ANn MAINTENANCE AGREEMENT THIS P ARKlNG EASEMENT AND MAINTENANCE AGREEMENT (hereinafter retèued to as the "Agreement") is made by and among LANDMARK LIMITED PAR'INERSHIP III (hereinafter referred to as "Landmark"), U.S. OIL CO., INC. (hereinafter referred to as "u.s. Oil"), IOU MlNG SANG and CHOW YUK CHUEN as tenants in common (hereinafter referred to as "Golden China"), and B & G REALTY, INC. and APPLETON THEATRES CORPORATION, formerly known as OSHKOSH THEATRES CORPORA nON (hereinafter coUectively referred to as "Theatres") this ~ day of - 1996. WITNESSETH: \VHEREAS, Landmark, U,S. Oil, Golden C\Una and Theatres own the rea! property described below which collectively is known as Landmark Plaza, located in the southeast quadrant of the intersection of South Koeller Street and Witzel Avenuc in Oshkosh, Wisconsin, as depicted on Exhibit A attachcd hereto and incorporated herein by reference; and WHEREAS, Landmark, U.S. Oil, Golden China and Theatres each operate at least one commercial establishment in Landmark Plaza necessitating parking for employees, customers and agents; and WHEREAS, Landmark, U.S. Oil, Golden China and Theatres and/or their predecessors in title previously entered into numerous recorded documents selling foro their rights and obligations with respect to the commou. areas, easements, rights-of-way, restrictions, maintenance and other matters concerning the Properties which are part of Landmark Plaza; and WHEREAS, Landmark, U.S. Oil, Golden China and Theatres desire by this Agreement, to clarify the affect of those numerous recordcd documents and to incorporate certain changes to their provisions governing parking and maintenance; and WHEREAS, Landmark is the owner of the property (the "Landmark Property") lcgally described as follows: SoP 13. 1004 10:24AM No.OS55 P. 3 That pan of the NWI/4 of the SWl/4 ofSec!ion22, T18N, R16E, 6th Ward, City of Oshkosh, Winnebago County, Wisconsin, which is bounded and described as follows: Lot 2 in Certified Survey Map No. 1100. Outlot 1 in Rcplat of Lots 13.21. Firs! Addition to T.H.B. the Homebuilders Subdivision. ALSO; Beginning at the NE comer of Lot 2 in Certified Survey Map No. ¡ 100, thence Westerly 586.61 feet more or less along the North line of said Lot to the Sf comer oflands described in Document No. 437752 (Oshkosh Theaters Corp.), theuce Northerly 315.0 feet more or less along the East line and extended East line of lands described in Document No. 437752, thence Westerly 255.14 feet more odess along the North line and extended North line of lands described in Document No. 752189 (Oshkosh Theaters Corp.) to a point on Ùle East line of South Koeller Street, thence Northerly 35.0 feet more or less along said line to the SW comer of lands described in Document No. 600697 (Golden China Restaurant), Ùlence Easterly 177.78 feet more or less along the South line ofJands described in Document No. 600697 to the SE comer of said lands, thence Northerly 286.0 feet more or less along the Easterly line oflands described in Document No. 600697 to the NW comer of lands described in Document No. 5091 15, thence Westerly 57.49 feet more or less along the North line of lands described in Docwnent No. 600697 !o a point on the East line of South Koeller Street, thence Northeasterly along the East line of Koel1er Street to its point of interseCtion with the South line of Witzel Avenue, thence Easterly 509.5 feet more or less along said South line to a point on the West line of lands described in Volume 517, Page 123 of Records (Anchor Bank), thence Southerly 156.5 feet more or less along said West line to the SW comer of said lands, thence Easterly 115.0 feet more or less along the South line of said lands to the NW comer of Outlot 1 in the Replat of Lots 13.21, First Addition to T.H.B. the Home Builders Subdivision, thence Southerly 807.23 feet more or less along the West line of said Outlot to the point of beginning. EXCEPTING THEREFROM Lot I in Certified Survey Map No. 3225 (the U.S. Oil Property); and WHEREAS, U.S. on is the owner of Ùle property (the "V.S, Oil Property") legally described as follows: Lot 1 in Certilied Survey Map No, 3225, in !be NWI/4 of the SWl/4 of Section 22, T18N, RI6E, Cüy of Oshkosh, Winnebago COUllty, Wisconsin; and 2 Sop.13. 1004 10:14AM No. 0355 p, 4 WHEREAS, Gulden Chllta is rhe owner of rhe property (the "Golden. China Property") legally described as follows: That panofrhe NWII4 of the SWl/4 of Section 22, T18N, RI6E, in the 6rh Ward, City of Oshkosh, Winnebago County, Wisconsin, per Document No. 600697 wrocn is bounded and described as follows: Beginning at !he Northwest comer of lands described as Parcel "I" Document No. 509115, thence South 00 degrees 31 m.i.cutes 20 seconds West along the Westerly line of lands described as Parcel "I" Document No. 509115, a distance of 286.00 feel thence North 89 degrees 13 minutes 40 seconds West along the Northerly line oflands described as P¡ucel"2" Document No. 509115, a distance of 177.78 feet, thence Northeasterly 195.06 feet along rhe arc of a 666.20 foot radius curve, being the Easterly right of way of South KoeIler Street and having a cnord of North 14 degrees 16 minutes 38 seconds East 194.36 feet, thence North 37 degrees 56 minutes East along rhe Easterly right of way of South Koeller Street a distance of 121.93 feet, thence South 89 degrees 04 minutes East 57.49 feet to tile point of beginning; and WHEREAS, Theatres is the owner of the property (the "Theatres Property") legally described as follows: That part of the NWlI4 of the SWI/4 of Section 22, Tl8N, R16E, in the 6t1l Ward, City of Oshkosh, Winnebago Coumy per Document No. 437752, bounded and described as follows; Commencing at the WlI4 comer of said Section, thence South along the West line of said Section 996.38 tèet, thence South 89 degrees 04 minutes 00 seconds East 212.60 feet to the place of beginning, said point being On the Easterly right of way line ofO.S. Highway No. 41, thence North 00 degrees OS minutes 22 seconds East along the aforesaid Easterly right of way line of U.S. Highway No. 41 a distance of 215.02 feet, tIlence South 89 degrees 04 minutes 00 seconds East 255.52 feet, thence South 00 degrees 41 minutes 00 second.> West 215.00 feet, thence Nonh. 89 degrees 04 minutes 00 seconds West 253.29 feet to the pLace of beginning. Said parcel contains 1.2556 acres ofland. TOGETHER WIIT!: That part of the NWII4 of tile SW!l4 of Section 22, TI8N, R16E, in the 6th Ward, City of Oshkosh, Winnebago County, WlSCOnsin, wroch is bounded and described as follows: Commencing at the WI/4 comer of said Section, thence South 00 3 Sop.IS. 2004 IO:25.A.M ~I 0 0355 degrees 51 minutes 21 seconds West along me West line of said 1/4 Section 782,04 feet, thence South 89 degrees 17 minutes 19 seconds East 210.65 feet to a point on the East lìne of South Koeller Street, thence continuing South 89 degrees 17 minutes 19 seconds East along the South line ofIands described in Document No. 752189 aforesaid 180.89 feet to the SE comer of said lands and the point of beginning of the parcel to be described, thence North 00 degrees 27 minutes 43 seconds East along the East line of said lands 100.00 feet to the NE comer of said lands, thence South 89 degrees 17 minutes 19 seconds East 75.00 feet, thence South 00 degrees 27 minutes 43 seconds West 100.00 feet to the NE comer of lands described in Document No. 437752, thence North 89 degrees 17 minutes 19 secO1¡ds West along the North line of said lands 75.00 feet to the point of beginning. Said porcel contains 7,500 square feet and is subject to all existing easements and restrictions of record. TOGETHER. WITH: A parcel ofland located in the Northwest 1/4 of the Southwest 1/40f Section 22, Township 18 North of Range 16 East, in the Sixth Ward, City of Oshkosh, Winnebago County, Wisconsin, bounded and described as follows: Commencing at the Northwest comer of lands described as Parcel "1", in Document No. 509115; thence South 0°31'20" West (previously recorded as South 0°41' West), along the Westerly line of lands described as Parcel "I" in Document No. 509115, a distance of 321.00 feet, to the point of beginlJÌng; rhence continuing South 0°31'20" West (previously recorded as South 0°41' West), along the Westerly line of lands described as Porcel "'I" in Document No. 509115, a distance of 100.00 feet; thence North 89° 13' 40" West (previously recorded as North 89° 4' 0" West), along the Northerly line of lands described in DocwnentNo. 437752, a distance of180.89 feet; thence Northeasterly 2L13 feet along the arc ora 1l,409.16 foot radius curve, being the Easterly right-of-way ofSourh Koeller Street and b;tving a chord of North 0° 37' 49" East, 21.13 feet; thence North 0° 41' East, along the Easrerly right-of-way of South Koeller Street, a distance of 53.38 feet; thence Northeasterly 25.46 rèet along the arc of 666.20 foot radius curve, being the Easterly right-of-way of South Koeller Street and having a chord of North 1° 46' 41" East, 25.46 feet; thence South 89° 13' 40" East (previously recorded as South g! O 4' East), along the Southerly line of lands described as Parcel "2", in Document No. 509 ¡ IS, a distance of 180.14 feet, to the place of beginning; and 4 P 5 Sep.IS. 1004 10:25AM No.0855 p. 6 NOW TIiEREFORE, based upon the foregoing premises which are hereby ratified and affumed, and for good and valuable colI$ideralion, the receipt and sufficiency of which is hereby acknowledged, Landmark, U.S. Oil, Golden China and Theatres (hereinafter sometimes referred to as the "Parties" or individually as the "Party") agree as fo!Jows: I. Landmark, U.S. Oil, Golden China and Theatres is each granted a perpetUal, non- exclusive easement and right of way for pwposes of foot and vehicular traffic, ingress and egress, and parking to, from and on the Landmark Plaza Parking F aciliry as depicted on Exhibit A hereto and consisting of 1,137 parking spaces on the Landmark Property (hereinafter the "Parking Facility") tor the use of each of the parries and the tenants, employees, customers and agents of each. 2. NotWithstanding the non-exclusive nature of the parking easements set forth in paragraph I above, ftom the total of the 1,137 parking spaces on the Parking Facility and the number of then existing parking spaces on the Theatres Property, 475 un-designated parking spaces are hereby perpetually granted to the Theatres Property so that, following the planned expansion of the theatre on the Theatres Property which has been approved by Landmark:, Theatres will have sufficient parking spaces to comply with all governmental and other requirements necessary to construct and operate its expanded theatre. All provisions in the Recorded Documents (as defined in paragraph 8 below) which require Theatres to maintain sLx parking spaces on the Theatres Property tor every 1,000 square tèet ofbuiJdings on the Theatres Property are hereby deleted. 3. Landmark shall be respònsible for the performance of; and initial payment for, all repair and maintenance of the Parking Facility, induding "'Ilowand ice removal, grounds keeping, lighting, ordinary repairs, restriping, and payment of rea! estate taxes and liability insurance (hereinafter the "Common Costs"). U.S. Oil, Golden China and Theatres agree to reimburse Landmark for their. portion of the Common Costs together with a management fee in an amount not 10 exceed eight percent (8%) of the Common Costs. The portion of the Common Costs plus management fee due fi-om each of the Parties shall equal the product obta.iD.ed by multiplying the total Common Costs plus management fee by a fraction, the numerator of which is the total square foomge of the buildings located on the Party's Property and the denominator of which is the total square tòotage of ail buildings located on the Landmark ProPer!)', the U.S. Oil Property, the Golden China Property and the Theatres Propcny. 4. Each Party's portion of the Common Costs plus management fee shall be paid in monthly insta!1ments, in advance, on Or before the first day of each calendar month, in an amount estimated by Landmark. Using the actUal biJIs for all such Common Costs at the calendar year end, and providing copies of those büIs to any Party upon request, Landmark shall submit to each of the Parties a. written statement of the actUal amount of that Party's portion and the amount then paid by the Party. If the total amount paid by the Party is less than the a.ct\Ja1 amount due «om the Party for such year as shown in the statement, the Party shaH pay Landmark the difference between the amount paid and the actual amount due, such deficiency to be paid within thirty (30) days after the rendition of the statement. If the total amount paid by the Farty for any calendar year exceeds the actual amount due from that. Party for such year, the excess shall be credited against the next installment of Common COSts due ftom the Party to Landmark. From time to time, Landmark shall 5 Sep.IS. 2004 10:26AM Nû-Ü855 p. 7 notifY each of the Parties in writÍllg of Landmark's estimate of the Party's montlùy installments due hereunder, 5. If Landmark fails to perfonn any of the maintenance and/or repair obligations set forth in paragraph 3 above and fails to cure that non-perfonnance within thirty (30) days after written notice from any of the Parries to Landmark (however, no notice shall be required in an. emergency) the noti:fY:ing Party shall have the right, but not the obligation, to perform the maintenance and/or repair and to be reimbursed by Landmark from all Parries' paid Common Cost installments for the reasonable cost of that perfonnance, such reimbursement to occur within thirty (30) days after Landmark's teceipt of a statement therefor ftom the pertormîng Party together with any documentation substantiating the Co.sts incurred, 6. Each of the Parries agrees to Ùldemnify and hold the othets hamliess nom and against any and all liability for personal Ùljury or death or property damage when such injury, death or damage shall result from, arise out of, or be attribUtable to any maintenance or repair undertaken pursuant to this Agreement unless caused by the gross negligence or willful misconduct of the Party perfomring such maintenance or repair. 7. The Parties acknowledge that Landmark is making certain improvements to the Parking Facility in calendar year 1996 and each Party agrees to pay its portion of the total cost of such improvements exclusive of the co~'tS to move the Stein's Garden Center area (hereinafter referred to as the "Improvement COSts"). The portion of such Improvement Costs for each of the Parties shaH equal the produCt obtained by multiplying the total of the Improvement Costs by a fraction, the numerator ofwbich is the total square footage of the buildings located on the Party's Property and the denominator of which is the total square footage of all buildings l<x:ated on the Landmark Property, the U.S. Oil Property, the Golden China Property and the Theatres Property, 8. The Parties acknowledge that the following documents affecting Landmark Pla2a have been recorded with the Winnebago County Register of Dèeds Office (hereinafter referred to as the "Recorcred Documents") and agree that if there is an inconsistellcy(ies) or ambiguity(ies) betWeen the Recorded Documents and this Agreement, the provisions of this Agreement shall control: Deed of Declaration contained in Instmment execUted by Michael Montlack, Trustee, dated August 12. 1970 and recorded in the office of the Register of Deeds on Au~t 17, 1970 in Volume 1281, page 271, as Document No. 398657. Amendment to Deed 0 fDeclaration con!aÙled in Instrument execUted by Roger E. Benjamin, Trustee (successor to Michael MontIack, Trustee), S-M, Inc. and Welles Stores, Ine, Oshkosh, dated July 21, 1971 and recorded in the office of the Register of Deeds on Auguot 3,1971, in Volume 1316, page 594, as Document No. 411613. Restatement of Deed of Declaration contained in Insttument, dated April 24, 1972 and recorded in the office of the Register of Deeds on May 31, 1972 Ùl Volume 1342, page 548, as Document No. 421441. 6 SoP.IS. 1004 IO:16AM No.O355 p. 3 First Amendment to Restatement çf Oeed of Declaration contained in Insrrwnent by and between Landmark Limited Partnership HI, a Wisconsín limited partnership; Spicer Enterprises, Inc., a Wisconsin corporation; Thomas S. Timmers; Jolm Pfefferle, Harry 1. Wendlandt and Thomas J. Janssen, dated October 17, 1986 and recorded in the office of the Register of Deeds on May 19, 1987, as Document No. 680392. Easement, granted by and between by 44 Drive-In Theatre, Inc., S-M, Inc. of Oshkosh and Roger BeI\jamin. Trustee by an instrument dated July 16,1971, recorded in the office of the Register of Deeds on July 29, 1971, in Volume 1313, page 117, as Document NoA10187. Agreement contained in Instrument execUted by and between The Marcus Corporation, a Delaware corporation on behalf of itself and all of its subsidiaries, including Oshkosh Theatres Corporation, a Wisconsin corporation and Spencer's Oshkosh Bowl, Inc. and Spencer's Kenosha Bowl, [nc., both of which are Wisconsín corporations, jointly and severally, dated September 7, 1978 and recorded in the office of the Register of Deeds on August 3, 1979, as Document No. 537740. Mutual Consent Agreement contained in Instrument by and berween Oshkosh Theatres Corporation, a Wisco1JSin corporation and Bank of the Commonwealth, a l\.ficlrigan banking corpotation and Freeway Enterprises, a Wisco1JSin parinership, dated November 2, 1983 and recorded in the office of the Register of Deeds on February 29, 1984. as Document No, 606390. 9. The Parties further agree as follows: A. All of the easements, benefits and burdens set fonh in this Agreement are intended to and shall be construed as covenants running with the land, binding upon, and inuring to the benefit and burden of and enforceable by the Parties hereto and their heirs, personal representatives, successors and assigns. Upon any Party's conveyance of all of its interest in its respective parcel, the transferring Party shall be relieved of any further liability under this Agreement arising on or after the date of said transfer and such transferee shall be deemed to have assum.ed all obligations of the transferor hereunder. B. The Parties, <md their respective heirs, personal representatives, successors and assigns, may enforce !heir rights under this Agreement in <my manner provided by law or equity, including without limitation, a suit for damages or injunctive relief. In !he event of any litigation or mediation to enforce the provisions of this Agreement, the prevailing party by final court or mediation order shall be entitled to recover, as paIt of the judgment, its reasonable attorney fees and COSts. C. This Agreement shall be governed and construed in accordattce with the laws of !he State of Wisconsin. D. No declaration or amendment shall be effective to add to, change, modify, waive or discharge this Agreement in whole or in part, unless such declaration is in writing and signed by all Parties bound hereby. 7 Sop.IS. 2004 IO:27A.M No.O355 P 9 E. The invalidity or unenforcea.bility of any provision of this Agreement shall not affect the validity or enforceability of any other provision. F. No delay or omission by any of the Parties obligated hereunder to exercise any right or power accruing upon any non-compliance or failure of performance by another Party under the provisions of this Agreement shall ÍInpair any such right or power or be construed to be a waiver thereof. A waiver by any such Party hereunder of any of the covenanlS, conditions or declazations hereof to be performed by another shall nor be constrUed to be a waiver of any succeeding defilult hereunder of any other covenant, condition or declaration herein contained. G. Nothing contained herein will be deemed to be a gift or dedication of any portion of the Parking Facility to the general public, or for the general public, or for any public purpose whatsoever. 10. The parties agree that in the event B & G Realty, Inc. does not acquire the approximately 7,500 square foot parcel of [and described as part of the Theatres Property, this Agreement shall be rendered nun and void in its entirety. IN WITNESS WHEREOF, Landmark, U.S. Oil, Golden China and Theatres have executed this Parking Easement and Maintenance Agreement so as to be effective on the date first above written. LANDMARK LIMITED PARTNERSHIP ill ~=~f$:~ ú~,ç By: \ -$-:U~-"'",","". Name: .) FA .hi &! Title: "Y, ,4,2 -r->' e.<;. J -A?~-..¿: . ;)<;'/'""",,-1:, . ~. u.s. On. CQ.,INC. By: ~.. ~ By:'Ì'1 i\\. )ù..L.. "'ml' """" -'. .~id< -.,:t.'~<i' M. y~ Title: President Title: General Counsel 8 Sop,IS, 2004 10:27AM No.O355 P 10 APPLETON THEA TRES CORl>ORATION fikJa OSlIKOSHTHEATRES CORPORATION ~ B~ Thomas F, Kissin B & G REALTY, INC. . '") ..- By, ~ ç'-7- 7ðu. Jou in ang '...J GOLDEN CHINA .' /'7( ~~ ~ .- / ,tYJ By' 'Chow Yule uen . ACKNOWLEDGMENTS STATE OF WISCONSIN ) ) 55 ) WINNEBAGO COUNTY .. ~persona.. Uy. came be~orc ~e on this ~. ~day of .'(\~ "'- t ,199,6, the above named- ',,\C\Iri. f\.\)n--d1;N and ' ','0.),\' F. \cl .~~ as\\.l""\",,~\,- and ('\ .."..."\.~ \... V .. r~pective1y, of Landmark Limited Partnership III, tò roe known to be the pèrsons who executed the foregoing instrument and acknowledged the same. ~ ~ ::-', C'\- /~Q i!...._~"~ Notary Public, State of Wisconsin b My Commission: \ \ - \~ ~ \. q c¡ c: \easement\parkgma. in! 9 Sop.13. 2004 10:27AM 110.0355 p. II STATE OF WISCONSIN ) ) 55 ) WINNEBAGOCOUNTY Personallycamebeforemeo!1~sthe 10th day of M-"y ,1996, the above named ~~f?!))~~,A. and M~~A~~' e M. as Pre5 i dentc and Cen. Coun seJrespectively, of U.S. Oil Co., to me known to be the persons who executed the foregoing instrument and acknowledged the same. '-', tc .' J . <--- ""^C.~ tì '~C", Notazy Public, State 0 Wisconsin My Commission: ~ftIcIÇJ;- STATE OF WISCONSIN ) ) ss ) MILWAUKEE COUNTY PersonalJy came before me on this the 27th day of March, 1996, the above named Thomas F. Kissinger and Bruce 1. Olson as SecretaI)' and President, respectively, of Appleton Theatres Corporation, formerly known as Oshkosh Theatres Corporation, to me known to be the persons who executed the foregoing instrument and acknowledged the same. bì~,,- ~1~~~ e,m',"'!, S"':íd:-/ NotaI)' Public, State of sconsih My Commission: ~ I ~ 5) '1'1 STATE OF WISCONSIN ) )ss ) MILWAUKEE COUNTY Personally came before me on this the 27th day of March, 1996, the above !lamed Thomas F. Kissinger and Bruce J. Olson as Secretary and Assistant Vice President, respectively, of B & G Realty, Inc., to me known to be the persons who executed the foregoing instrument and acknowledged the Same. . &4i."J,- /~Y\..~L.. f.,r,....,}.,~ <;"-IJ/"... ~~¿;::~~~~~te ~~~ :j'Çn;m 10 SoP 13. 2004 10:23AM STA IE OF WISCONSIN ) ) ss ) WINNEBAGQ COUNTY NüO355 p. 12 Personally came before me on this the-1~y of ~~. ,1996, the above named !ou Ming Sang and Chow Yuk Chuen to me knownitó,~ ~e peI,:,'~ e persons who executed the foregoing lIIStt'ument and acknowledged the same. ~ ¿ ~ ~E'lIl\Il S ¿ ÇÇ41Ai¿.J.. Notazy Public, State of Wisconsin My Commission: £/-G- ~ 7 THIS INSTRUMENT DRAFTED BY: Linda R. Treland Marçus Theatres COrporation 250 East Wisconsin Avenue Suite 1750 Milwaukee, Wisconsin 53202-4220 State Bar Member No. 1001106 II Sop,IS, 2004 10:13,AM PROPOSED DEVELOPE~ IT LANDMARK PLAZA 300 S, KOELLER ST. OSHKOSH, WI 54901 No0355 p, IS ...... ,....,. ...... SITE PLAN ~~~7';: ,...~ ¡ EXHIBfT A