HomeMy WebLinkAboutOffer To Purchase/Dawes
OFFER TO PURCHASE
This OFFER TO PURCHASE (the "Agreement"), made and ente.red into the f}.. L day
of f0ov~ex , 2006, is by and between the REDEVELOPMENT AUTHORITY OF THE
CITY OF OSHKOSH, a separate body public, with its principal offices located at 215 Church
Ave., P.O. Box 1130, Oshkosh, WI 54903-1130, ("Authority") and DAWES OSHKOSH,
LLC, a Wisconsin limited liability company, 300 N. Main St., Suite 200, PO Box 800, Oshkosh,
WI 54901 ("Dawes").
1. Purchase. Dawes, or its assigns, subject to the terms and conditions set forth herein and subject
to the terms and conditions set forth in the Marion RoadlPearl Avenue Redevelopment Area
Phase II Development Guidelines dated November 2003 ("Guidelines"), hereby offers to
purchase from Authority that certain parcel of vacant real estate known as Parcel G of the
Marion RoadlPearl Avenue Redevelopment Area located in City of Oshkosh, Winnebago
County, the State of Wisconsin, containing approximately 2.96 acres (128,938 square feet),
fronting along relocated Pearl Avenue and Dawes Street, as outlined in yellow on the site plan
attached hereto as Exhibit "A" ("Property"), the full legal description of which shall be verified
prior to Closing. The Property shall include all improvements and fixtures located thereon,
together with rights pertaining thereto, including without limitation, each and every easement,
access right, privilege and appurtenance thereto. This Offer to Purchase ("Agreement") shall be
null and void unless an original hereof, signed and accepted by Authority, is returned to Dawes
at the address set forth below for notices on or before November 21,2006.
2. Purchase Price. The purchase price ("Purchase Price") to be paid by Dawes to Authority for
the Property shall be One Hundred Thousand Dollars ($100,000.00), payable as follows:
a. Earnest Money to be tendered in the manner set forth in Section 4 and Section 6;
and
b. Delivery of the balance of the Purchase Price to Authority from Dawes at Closing
in the form of a certified or cashier's check, or by electronic wire transfer, subject
to adjustment for credits and prorations as set forth in Agreement.
3. Environmental. The Authority will obtain a certificate of completion ("Certificate of
Completion") under the State of Wisconsin Department of Natural Resources ("WDNR")
V oluntary Party Liability Exemption Program ("Program") for the entire Property as long as
Dawes completes its responsibilities as set forth in this Section and this Agreement. In
addition Dawes shall be responsible for complying with, at its own expense, all conditions or
requirements set forth in the Certificate of Completion such as maintaining any engineered
cap
The Authority will work with the WDNR to have the WDNR issue a Certificate of
Completion under the Program for the Property once the environmental work has been
completed on the Property in accordance with the environmental remediation plan filed with
the WDNR under the Program. The environmental work performed by the Authority will
include the excavation and proper disposal of Contaminated Material (as hereinafter defined)
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in the area of the building footprint for the First Phase to the extent required by WDNR.
First Phase as used herein shall be the construction of improvements on the west side of the
site as set forth on the Site and Building Plan attached hereto as Exhibit B. Contaminated
Material as used herein shall mean: volatile organic chemicals, substances defined as
"hazardous substances" "toxic substances," or "hazardous wastes" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended prior to the
date of closing ("CERCLA"); Resource Conservation and Recovery Act of 1976, as amended
prior to the date of closing ("RCRA"); Hazardous Materials Transportation Act, as amended;
all other laws and ordinances governing similar matters as of the date of closing; and any
regulations adopted or promulgated pursuant to said laws as of the date of closing.
The environmental work performed by the Authority does not include the backfilling of the
excavation in the First Phase. The backfilling of the excavation in the First Phase shall be at
the cost of and responsibility of Dawes. The environmental work performed by the Authority
will also include the excavation and proper disposal of the Contaminated Material located in
the area of the building footprint for the proposed Second Phase of the Project to the extent
required by the WDNR. The Second Phase of the Project as used herein shall be the
construction of improvements on the east side of the Property as set forth on Exhibit B. The
environmental work performed by the Authority will include the backfill of the excavation to
grade in the proposed building footprint for the Second Phase.
The environmental work to be performed by the Authority shall not include the excavation or
removal of Contaminated Material located in any area on the Property other than the building
footprints described herein. The Authority will not, for example, remove Contaminated
Material from the proposed surface parking lot areas as set forth on Exhibit B. The proposed
surface parking lots are integral to the Authority obtaining the Certificate of Completion. The
parking lots will act as an engineered cap or barrier for purposes of obtaining the Certificate
of Completion. Dawes is responsible for installing and paving the parking lots for the First
and Second Phase no later than 400 days from the commencement of construction of the
building in the First Phase as shown on Exhibit B. Dawes shall be responsible for the cost of
installing and paving the parking lots. In the event Dawes excavates any soil in the area of
the surface parking lots as shown .on Exhibit B, Dawes shall be responsible for the cost of
such excavation and for properly disposing of the excavated soil from the parking lot in
accordance with all applicable laws, rules and regulations. In the event Dawes excavates any
soil from the parking lot areas, Dawes shall also comply with any requirements of the
Certificate of Completion as it relates to maintaining the surface parking lots as an
engineered cap or barrier or as it relates to excavating any soils from the surface parking
area.
Notwithstanding anything to the contrary set forth in this Section 3 or this Agreement, in no
event shall the costs to be incurred by the Authority under this Section 3 exceed $52,000 in
the aggregate plus any fee charged by the Authority's environmental consultant for work
performed by such consultant including any over site of the environmental work (the
"Remediation Limit"). The Authority and Dawes agree that the Authority's total liability
under Section 3 for the environmental work shall not exceed the Remediation Limit. Any
costs for environmental work that exceeds the Remediation Limit to obtain the Certificate of
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Completion shall be the responsibility of and the cost of Dawes. Such environmental work to
be completed by and at the cost of Dawes, shall be completed within 400 days from the
commencement of the construction of the building in the First Phase as shown on Exhibit B.
Except as disclosed to Dawes with respect to the Program and the obtaining of the Certificate
of Completion, the Authority has no knowledge of any environmental contamination or
violation of environmental law with respect to the Property. The Authority shall add Dawes
and upon request, Dawes's lenders as parties who are entitled to rely upon the Authority's
environmental test results, reports and other documentation. Until the sooner of the issuance
of the Certificate of Completion or Dawes fails to timely complete installation and paving of
the surface parking areas as set forth herein, and/or the completion of the environmental
work that exceeds $52,000 as set forth herein the Authority shall be responsible for the
environmental condition of the Property existing at the time of Closing~ Upon the issuance
of the Certificate of Completion by the WDNR or upon the failure of Dawes to timely install
and complete the paving of the surface parking areas in the First and Second Phase as set
forth in Exhibit B and/or timely complete the environmental work needed to obtain the
Certificate of Completion that exceeds $52,000 within 400 days from the commencement of
construction of the building in the First Phase, the Authority shall have no further liability,
responsibility or obligation for the environmental condition of the Property including without
limitation, any existing contamination on, under or above the Property existing as of the date
of Closing.
Dawes acknowledges and agrees that the Authority may not be required by WDNR to
remove any or all Contaminated Material from the Property in order to obtain a Certificate of
Completion and that closure may be accomplished through establishing site-specific
performance standards for applicable soil and groundwater remediation and/or imposition of
conditions or restrictions on or involving the Property by the WDNR including but not
limited to, the conditions currently referenced in chapter NR-726.05 Wis. Admin. Code and
Dawes agrees to and will comply with any such conditions and/or restrictions so imposed.
Dawes agrees to execute and record such documents as may be necessary to bring the
Property to the point where it is eligible for the issuance of a Certificate of Completion,
including, but not limited to, the execution of deed notifications or deed restrictions and/or
groundwater use restrictions in the form required by the WDNR. If the WDNR promulgates
by rule additional conditions or restrictions, for example an alternative method of restricting
groundwater use to replace the requirement of recording a groundwater use restriction in
order to obtain case closure and a Certificate of Completion then Dawes will agree to and
comply with such reasonable alternative conditions, restrictions or methodology. Dawes
agrees that after the issuance of the Certificate of Completion, it will comply at its sole cost
and expense with the terms of any deed notifications, deed restrictions, groundwater use
restrictions, maintenance of any engineered cap or barrier or any other conditions or
restrictions reasonably required to be imposed upon the Property by the WDNR in order to
obtain a Certificate of Completion. Dawes will not take any actions which will unreasonably
impair the Authority's efforts to obtain a Certificate of Completion.
Dawes agrees to provide the Authority with reasonable access to the Property for the purpose
of performing the environmental work to obtain the Certificate of Completion. To the extent
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requested by the Authority, Dawes agrees to execute an Access Agreement prepared by the
Authority.
4. Earnest Money. Within ten (10) business days of Dawes's receipt of Authority's acceptance of
Agreement Dawes shall deposit earnest money of Ten and 00/1 00 Dollars ($10.00) ("Earnest
Money") with Schmitt Title & Escrow Corporation, 210 N. Main Street, P.O. Box 541,
Oshkosh, WI 54901 ("Escrow Agent"). Escrow Agent shall hold Earnest Money in its trust
account. Authority and Dawes agree to execute the "Earnest Money Escrow Agreement"
attached hereto as Exhibit "c", If this transaction closes, all Earnest Money shall be credited
against the Purchase Price due hereunder, or in the event this transaction does not close, then all
Earnest Money shall be disbursed as provided in Section 17(b).
5. Contingencies. The respective contingencies set forth in the table below shall be deemed
automatically waived if Dawes does not provide to Authority written notice on or prior to the
expiration of the respective contingency waiver periods set forth in the table below, that the
corresponding contingencies set forth in said table have not been satisfied, and that this
Agreement shall be null and void and all Earnest Money returned to Dawes. If the contingency
waiver period shall expire on a Saturday, Sunday or legal holiday, then the contingency waiver
period shall be alJtomatically extended to the next succeeding business day.
Contingency Contingency
Waiver Period
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Assurance Letter. The Authority shall obtain on behalf of Dawes an
assurance letter from the WDNR approving the remediation work to be November 30,
performed at the Property and confirming that upon completion of the 2006
remediation work, including without limitation, the paving of the parking
lots, a Certificate of Completion will be issued by the WDNR.
November 30,
Buildin2 Permit. Dawes' receipt of all necessary building permits. 2006
6. Letter of Credit. Upon satisfaction or waiver of the contingency set forth in Section 5, Dawes
shall deposit in escrow, in the form of a letter of credit, additional Earnest Money equal to fifty
percent (50%) of the Purchase Price ("Letter of Credit"). The parties agree that Authority may
draw upon Letter of Credit only as set forth in Section 17(b). The parties agree that Letter of
Credit, or any portion remaining thereof, shall be released as set forth in Section 16 and Section
17(b ).
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7. Development. Dawes shall develop the Property substantially in accordance with its
development proposal dated February 6, 2004, which proposal has been approved by the
Authority and the City of Oshkosh Common Council and is incorporated herein by reference
("Project"), Detailed Project site plans (including landscape plan), elevations and building
plans (showing amenities stipulated by Authority) shall be submitted to the Department of
Community Development for approval no later than November 30, 2006, Construction of
improvements of the First Phase shall begin not later than December 1, 2006 and shall be
completed within four hundred (400) days after commencement of construction (subject to
events of Force Majeure hereinafter defined in paragraph 8). Improvements to be
constructed in First Phase are generally described as the western apartment building.
Construction of improvements (subject to events of Force Majeure) on the east side of the
site known as the Second Phase shall begin not later than (i) one hundred twenty (120) days
after seventy five percent (75%) tenant occupancy of the First Phase is achieved; and (ii)
Dawes' lender provides financing for such construction. Improvements to be constructed in
Second Phase are generally described as the eastern apartment building. Construction of
improvements of the Second Phase is estimated to be completed within three hundred (300)
days of Second Phase construction commencement.
8. Repurchase Option. In the event Dawes is unable to complete the Project pursuant to terms
of Agreement, excluding events of Force Majeure (hereinafter defined) Authority shall, upon
ninety (90) days prior written notice to both Dawes and Dawes' lender, have an exclusive
option to repurchase the Property for the Purchase Price paid at Closing plus all reasonable,
documented expenses incurred by Dawes, including but not limited to: fees, costs, expenses,
and charges incurred for architects, financing, construction, engineering, legal services,
permitting, and property management. Authority's exercise of the repurchase option requires
Dawes to provide to Authority all of Dawes' existing documents including, without
limitation, complete and partially complete plans, specifications, contracts and bids so that
the Authority, at its option, can complete the Project or resell the Property to another party
who, at its option, can complete the Project. Notwithstanding the foregoing, if, upon receipt
Authority's notice to repurchase, Dawes, or its lender commences completion of Project and
diligently prosecutes the work to completion, Authority shall not be permitted to repurchase
the Property. "Force Majeure" is defined as a delay, hindrance in, or prevention from, the
performance of any act required hereunder (except for the payment of a monetary sum to be
paid by either party to the other party) which is caused by strikes, inability to procure
materials, failure of power, restrictive governmental laws or regulations, riots, insurrection,
war, tornado, hurricane or other unforeseeable weather conditions of unusual severity, acts of
God, or other reasons of a like nature, which are not the fault of the party delayed in
performing work or doing acts required under the terms of this Agreement. This repurchase
option closing will occur within thirty (30) days after the expiration of the ninety (90) day
period provided Dawes has not completed the Project in the interim or is not (as provided
above) diligently prosecuting the work to complete the Project.
9. Approvals, Permits and Authority Review. Upon submission of all requisite plans and
applications, Authority shall promptly and expeditiously review such plans and applications
and provide Dawes with an approval or denial of such plans and applications. Authority
retains the right to review and approve all alterations to site and building plans. Authority
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approvals shall not be unreasonably withheld or delayed. Dawes will timely notify Authority
of all Project changes.
10. Contaminated Material. Authority acknowledges that during construction Dawes may need
to remove and dispose of Contaminated Material that is beyond the environmental work to be
performed by Authority as set forth in Section 3, Dawes may remove and properly dispose of
such Contaminated Material in a licensed disposal facility in accordance with all applicable
laws, rules and regulations at Dawes' sole expense.
11. Access and Cooperation. Dawes, its agents, employees, contractors and designees, at any
time after the date of Dawes' receipt of Authority's acceptance of this Agreement (the
"Acceptance Date"), shall have the right to enter upon the Property for the purpose of
inspecting and examining reports, records, plans and specifications relating to the Property
and performing geotechnical testing on the soils on the Property to determine their suitability
for building. In no event shall any environmental testing be performed on the Property.
Dawes' exercise of its right of entry shall in no event release the Authority from its
warranties and representations set forth herein. Authority and Dawes agree to cooperate with
each other in their attempts to satisfy the contingencies set forth herein. Dawes shall
indemnify and hold Authority harmless from and against any damages arising from Dawes'
inspection and testing of the Property. Vehicular access to the Property shall be temporarily
permitted from proposed "Public Street B" and Dawes Street and permanent vehicular access
to the Property shall be permitted from proposed "Public Street A" as set forth in Authority's
Request for Proposals dated November 13,2003 ("RFP").
12. Obligations of Authority. Authority, at Authority's sole expense, shall furnish and deliver to
Dawes, within thirty (30) days after Acceptance Date true, correct, and complete copies of
the following:
a. ALTA plat of survey of the Property (prepared in accordance with the class A
standards specified by ALTA and ACSM and in form and substance reasonably
satisfactory to Dawes) as a separate parcel prepared by a licensed civil engineer or
registered land surveyor certified to Dawes and such others as Dawes may
reasonably request including those who purchase, take a mortgage on, or insure
title to the Property. The survey shall be in such form and content as shall permit
the title company to eliminate all exceptions in the commitment and the policy
and title insurance issues pursuant thereto which relate to matters of survey.
b. An AL T A commitment for marketable title insurance on the Property issued by a
licensed title insurance company ("Title Company") committing said Title
Company to issue title insurance for the Property by an owner's standard AL T A
policy (1970 Form B) in the amount of the full Purchase Price, showing all liens,
encumbrances and other matters of record, together with legible copies of all
documents that appear as exceptions to title. Dawes shall have ten (10) business
days following delivery of such commitment and the AL T A survey required in
Section 12(a) to deliver to Authority written notice of objection to the condition
of title; provided that Dawes may not object (and shall accept as Permitted
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Exceptions [hereafter defined]) any liens, encumbrances, or matters disclosed
therein created by the act or default of Dawes and any easement of record with the
American Transmission. Company. If Dawes fails to deliver such notice within
such ten (10) day period, then Dawes shall be deemed to have approved of the
condition of title as shown by such commitment and survey. If Dawes properly
objects to any matter shown in such commitment or survey, Authority may: (i)
elect to cause the title company to insure over the matter objected to; or (ii) cure
the defect; or (iii) inform Dawes in writing that it has elected not to do (i) or (ii).
In the event Authority chooses (iii), Dawes shall have fifteen (15) days from
receipt of Authority's notice to waive its objection or terminate the Agreement.
Exceptions to title approved by Dawes hereunder include: real estate taxes not yet
due or payable; municipal ordinance; and zoning ordinances; and any easement of
record with the American Transmission Company shall be deemed "Permitted
Exceptions". At Closing, Authority shall deliver to Dawes, at Authority's sole
cost and expense, an owner's title insurance policy conforming to the
commitment and including the following endorsements: extended coverage, gap,
access, owners comprehensive, survey, tax parcel identification, subdivision and
zoning. All costs of providing such title commitment, and of issuing the owners
title policy pursuant to such commitment, shall be borne by Authority. If,
however, this transaction fails to close as a result of Dawes' breach or default
hereunder, Dawes shall pay to the title insurer any fee due for the title
commitment, or title policy. Dawes acknowledges that the Second Phase of their
proposed Project extends into the easement area for guy wires and transmission
line poles for the American Transmission Company and Dawes will cure such
defect.
c. All unrecorded easements, covenants, restrictions, and other encumbrances m
Authority's possession or under Authority's control affecting the Property.
d. The most up to date topographical and engineering studies, boundary surveys,
maps, plans and specifications, reports, and studies in Authority's possession or
under Authority's control relating to the Property.
e. All environmental reports and. all wetland surveys and studies in Authority's
possession or under Authority's control relating to the Property that have not
previously been provided to Dawes. Authority's obligation to timely deliver
environmental results, reports, or other documentation with respect to the
environmental status of the Property shall continue and survive Closing.
13. Operation of Property. From Acceptance Date to Closing, Authority shall:
a. Keep and preserve the Property and not deposit thereon any garbage, fill, waste
water, solid wastes, hazardous and toxic substances, pollutants, or environment-
threatening materials, or other refuse material without Dawes' prior written
consent. The Authority shall not be responsible for any acts or omissions of
Dawes.
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b, Not enter into any lease or other agreement with a party other than Dawes (or
Dawes' assignee) with respect to the Property which will extend in force beyond
Closing and purport to bind Dawes or the Property or will not be fully performed
by Authority prior to Closing without first obtaining the written approval from
Dawes.
c. Not initiate, petition for, or consent to the change in any zoning applicable to the
Property or in any other governmental law, ordinance, or regulation applicable to
the construction, use, occupation, or operation of the Property without the prior
written request or consent of Dawes,
14. Warranties and Representations.
a. Authority hereby represents to Dawes, which representations shall survIve
Closing, that, as of Acceptance Date and as of Closing:
1. Authority. Authority has authority to sell, transfer and convey the
Property to Dawes and that the persons signing below on behalf of
Authority personally warrant their authority to act as Authority's agents in,
sale, transfer and conveyance of the Property to Dawes. Upon Authority's
acceptance of this Agreement, it shall become a valid and binding
obligation of Authority, enforceable in accordance with its terms.
Authority is not a foreign person within the meaning of Section 1445 of
the Internal Revenue Code of 1954, as amended.
11. Warranties. In addition to other restrictions and requirements outlined in
Agreement, Dawes is purchasing the Property subject to Guidelines,
zoning code provisions, easements, and other restrictions of record.
Except as expressly provided in Agreement, Authority neither assumes nor
authorizes any person to assume for Authority any liability in connection
with the sale or use of the Property; to the best of the Authority's
knowledge there are no other agreements or warranties, either oral written,
collateral to, or affecting Agreement or the Property; and Authority
specifically excludes all other warranties of merchantability and fitness for
a particular purpose and neither makes nor adopts any warranty express or
implied. .
iii. Floodplain. No part of the Property is located in a flood plain or wetland
area.
IV, No Encroachments. To the best of Authority's knowledge, all buildings
and other improvements currently existing upon the Property are within
the Property's boundary lines, are within setback lines applicable to the
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Property, do not encroach on any area subject to easement(s) and there are
no encroachments upon the Property,
v. Litigation and Court Orders. The Authority is not involved in any existing
or any pending litigation, suit, action or proceeding before any court or
administrative agency affecting the Property. To the best of the
Authority's knowledge there are no existing, pending or threatened
governmental agency or court orders requiring repair, alteration, or
correction of any existing condition on the Property, except as expressly
stated herein.
VI. Condemnation. There are no existing, pending, or threatened
condemnation proceedings affecting any portion of the Property.
vii. Special Assessments, There are no existing, planned, or commenced
public improvements, except as outlined in Guidelines, which may result
in special assessments or otherwise materially affect the Property,
viii. No Commitment to Governmental Authority. Except for the limitations
set forth in the Agreement, Authority has made no commitment to any
governmental authority, utility body, neighborhood association or other
organization, group or individual relating to the Property that would
impose an obligation upon Dawes to install or maintain any
improvements of a public or private nature on or off of the Property, or
which would limit or adversely affect permitted uses of the Property.
IX. No Prior Rif;?;ht to Purchase. To the best of Authority's knowledge, no
person or entity has any option, right of first refusal or similar right to
purchase all or any portion of the Property.
x. No Adverse Possessors. To the Authority's knowledge there are no
parties in possession of any portion of the Property as tenants at sufferance
or trespassers, nor are there any leases for the Property in effect.
b. Dawes hereby represents and warrants to Authority, which warranty and
representation shall survive Closing, that Dawes has good right and authority to
purchase the Property under the terms hereof and that this Agreement is, upon
Dawes' execution, a valid and binding obligation of Dawes, enforceable in
accordance with its terms.
15. Survival of Representations and Warranties. Any warranty, representation, indemnification
or agreement herein contained shall survive the Closing, Each Party shall indemnify and
defend the other Party from and against any and all costs, expenses, liabilities and damages
including reasonable attorneys fees arising out of the breach of their respective warranty,
representation, indemnification or agreement.
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16. Closing. This transaction is to be closed at the office of Title Company issuing the
commitment described in Section 12(b), at 11 :00 a.m. on the first business day which is
fifteen (15) days after Authority's receipt of Dawes' written waiver or the automatic waiver
of the contingency set forth in Section 5 ("Closing"), or such other time or place as may be
agreed between Dawes and Authority. If Closing shall be a Saturday, Sunday or legal
holiday, then Closing shall be the next succeeding business day. For purposes of determining
all prorations, Closing shall be inclusive of said date.
a. Conveyance. Authority shall complete the following:
1. Deed. Prior to Closing: Draft, execute, acknowledge, and deliver to Title
Company a warranty. deed in recordable form conveying title to the
Property, as a separate legal parcel, subject only to Permitted Exceptions.
11. Affidavit. Prior to Closing: Draft, execute, acknowledge, and deliver to
Title Company an affidavit that Authority has not caused improvements
to the Property for six (6) months immediately preceding Closing; or, if
Authority has caused improvements to the Property within six (6)
months, Authority shall deliver releases or waivers of all construction
liens executed by general contractors, subcontractors, suppliers, or
materialmen. This Section shall not apply to improvements Dawes
undertakes prior to Closing and Dawes shall be solely responsible to
satisfy any Title Company objections relative to Dawes' improvements.
iii. Transfer Tax Return. Prior to Closing: Draft, execute, and deliver to Title
Company a Wisconsin Transfer Tax Return. No transfer tax will be due
because Authority is tax-exempt.
IV. Closing Statement. Prior to Closing: Draft, execute, and deliver to Dawes
a closing statement setting forth Purchase Price and all credits and
adjustments thereto.
v. Release of Letter of Credit. Prior to Closing: Notify Dawes' lender in
writing that Letter of Credit shall be released within twenty four (24)
hours after Closing.
VI. Delivery of Possession. At Closing: Deliver possession of the Property to
Dawes.
b. Dawes' Obligations. At the Closing: Dawes shall deliver to Authority funds equal to
the unpaid balance of the Purchase Price.
c. Closing Costs. In the event Title Company does not have receipt of the Purchase
Price in readily available funds by 2:00 p.m. Central Standard Time or Central
Daylight Time, as applicable, then for purposes of all prorations, the Closing shall
be the next business day. The parties shall pay closing costs set forth in this
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Section, however, in the event any charge or fee is not covered therein, the charge
or fee shall be paid according to local custom.
1. Authority's Costs. Authority shall pay: (1) Authority's attorneys' fees, all
recording taxes and tax collection fees, all recording fees on recordable
sale documents (if any); (2) the premium for an ALTA Owner's Policy of
Title Insurance, the "Gap" coverage and the additional premium for the
modification and deletion of standard exceptions; (3) all state, county, and
municipal transfer taxes, deed stamps, documentary stamp taxes, and
similar impositions (if any); (4) one-half of all escrow fees charged by
Escrow Agent; and (5) all costs associated with any other Authority
transaction indirectly related to the sale of the Property (e.g. loan pay-offs,
lien pay-offs, third party claims, etc.) and (6) the cost of the Survey.
11. Dawes' Costs. Dawes shall pay: (1) Dawes' attorneys' fees; (2) one-half
of all escrow fees; and (3) recording fees for recording the warranty deed
to Dawes.
d. Credits to Purchase Price.
1. Site Work. Purchase Price shall be reduced at Closing in an amount equal to
fifty thousand dollars ($50,000.00) that can be used on site work on the
Property, including without limitation, site preparation, landscaping,
ornamental fencing, standard sidewalks and removal of unsuitable soil or
Contaminated Material.
e. Taxes. Net general real estate taxes for the year of closing shall be prorated as of
the Closing Date, on the basis of the net general real estate taxes for the current
year, if known, otherwise on the net general real estate taxes for the preceding
year. Authority shall pay prior to Closing all real estate taxes, penalties, and
interest with respect to all years prior to the year of closing, including but not
limited to "recaptured" taxes. Authority and Dawes hereby acknowledge that the
Property is currently tax-exempt and Authority warrants that no outstanding taxes
from prior years exist.
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17. Termination of Agreement.
a. This Agreement and the transactions contemplated hereby may be terminated
prior to Closing:
1. By mutual consent of the parties; or
11. By written notice from Dawes to Authority if there has been a material
misrepresentation or breach by Authority in the representations,
warranties, agreements or covenants of Authority as set forth herein,
provided that Dawes' failure to terminate shall not constitute a waiver of
any such misrepresentation; or
iii. If any contingency provided for in Section 5 has not been satisfied, waived
or automatically waived as set forth in paragraph 5 of this Agreement; or
IV. By written notice from Authority to Dawes if there has been a material
breach by Dawes of its warranties as set forth herein;
b. If this Agreement has not been terminated as set forth in Section 17 (a) and Dawes
fails to complete the closing as provided in this Agreement, Authority, as its sole
and exclusive remedy, may retain Earnest Money and draw on Letter of Credit as
and for liquidated damages, Authority has agreed to this liquidated damage
provision because of the difficulty of ascertaining Authority's actual damages
given the uncertainties of the real estate market, the fact that Authority retains
ownership of the Property, fluctuating property values and differences of opinion
with respect to such matters. If any contingency specified in Section 5 has not
been satisfied, waived by Dawes or automatically waived as set forth in Section 5,
Dawes shall be entitled to the prompt return of all Earnest Money and Authority
shall release the Letter of Credit in the manner provided in Section 16(a)(v). If
Authority fails after ten (10) days prior written notice to complete the Closing as
provided in this Agreement or otherwise commits a material breach of this
Agreement, Dawes shall be entitled to the prompt return of all Earnest Money and
release of Letter of Credit, and any other remedies available under this
Agreement, at law, or in equity.
18. Street Special Assessment.
a. The Property (and the owner of the Property) shall not be assessed for any costs
or expenses in connection with the acquisition or construction of Dawes Street,
Public Street B or Public Street A as set forth in the RFP or in any modification of
the RFP.
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19 . Miscellaneous.
a. Successor and Assigns. All of the terms, covenants and conditions of this
Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns. The parties agree that neither shall assign
Agreement without prior written consent of the other party; except Dawes may
assign Agreement to its mortgage lender for collateral purposes without
Authority's written consent.
b. Captions and Headings. The headings, captions and section numbers appearing in
this Agreement are inserted only as a matter of convenience and in no way define,
limit, construe, or describe the scope or intent of such sections of this Agreement,
nor in any way affect this Agreement.
c. Governing Law. The validity, meaning, and effect of this Agreement shall be
determined in accordance with the laws of the State of Wisconsin,
d. Entire Agreement. This Agreement contains the entire agreement between the
parties relating to the transactions contemplated hereby and all prior or
contemporaneous agreements, oral or written are superseded hereby. This
Agreement may be amended or modified only by written instrument duly
executed by and delivered to both parties hereto.
e. Confidentiality. Dawes and Authority hereby agree and covenant that Authority
will maintain the confidentiality of this Agreement and its terms and conditions by
assuring that, except as required by law, the Agreement and its terms and
conditions will not be viewed by, or otherwise conveyed in any manner to, a third
party other than legal counselor an employee or agent of the Authority from
whom advice is required in connection with the sale of the Property and who also
agrees to maintain the confidentiality of Agreement and its terms and conditions
in accordance with the terms of Agreement.
f. Time is of the Essence. Dawes and Authority hereby agree that time is of the
essence with regard to the terms and conditions of this Agreement.
g. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
h. Severability of Provisions. In the event one or more provisions of Agreement
shall for any reason be held invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other provision hereof and
Agreement shall be construed as if the invalid, illegal, or unenforceable provision
had never been contained herein.
13
1. Binding. This Agreement and all covenants and easements herein shall run with
the Property and shall inure to the benefit of and be binding upon the parties, their
successors and assigns.
J. Litigation, In connection with any litigation arising out of this Agreement, the
prevailing party shall be entitled to recover all costs incurred, including
reasonable attorneys' fees. If the services of an attorney are required by any party
to enforce a judgment in connection with this Agreement, the judgment creditor
shall be entitled to reasonable attorney's fees, costs and other expenses, and such
fees, costs and expenses shall be recoverable as a separate item. This provision shall
be severable from all other provisions of this Agreement, shall survive any
judgment, and shall not be deemed merged into the judgment.
k. Indemnification. Except as set forth herein, Authority shall be liable for and
indemnify, defend, and hold harmless Dawes, its heirs, executors, successors,
shareholders, and assignees from and against any loss, cost, damage, liability or
expense (including attorney fees and other professional charges) suffered or
incurred by Dawes, its heirs, executors, successors, shareholders and assignees,
without limitation, for any of Authority's activities on the Property prior to
Closing. Further, Dawes shall be liable for and indemnify, defend, and hold
harmless Authority, its heirs, executors, successors, shareholders, and assignees
from and against any loss, cost, damage, liability, or expense (including attorney
fees and other professional charges) suffered or incurred by Authority, its heirs,
executors, successors, shareholders and assignees, without limitation, for any of
Dawes' activities on the Property prior to or after the Closing. It is the intention
of this Section that each party shall be solely responsible for liability arising from
its own activities under this Agreement, and that this Section be liberally
construed in favor of the party seeking indemnification.
l. Notices. Any notice or election herein required or permitted to be given or served
by any party hereto upon the other shall be in writing and delivered in person, by
a nationally recognized courier service such as Fed Ex or sent by United States
mail, postage prepaid, or by facsimile transmission to a party's representative set
forth below. Any such notice if mailed as provided herein shall be deemed to
have been mailed, rendered, given, or served on the date mailed and shall be
deemed received on the expiration of two (2) business days after mailing. Any
notice or communication delivered personally or by facsimile shall be deemed to
have been given or served upon the party on the date delivered. Facsimile
signatures shall be deemed originals in all respects. Notices shall be addressed as
follows:
14
Ifto Authority: REDEVELOPMENT AUTHORITY
OF THE CITY OF OSHKOSH
215 Church Avenue, P.O. Box 1130
Oshkosh, WI 54903-1130
Attn: Jackson Kinney
Facsimile (920) 236-5053
If to Dawes: DAWES OSHKOSH, LLC
c/o Alexander & Bishop Ltd.
300 N. Main Street, Suite 200
P.O. Box 800
Oshkosh, WI 54901
Attn: J. Peter Jungbacker
IN WITNESS WHEREOF, Dawes has caused this Agreement to be executed thisd-.l day
of Nov 2006.
DAWES OSHKOSH, LLC:
Acceptance
Accepted this B-L day of ~ V 006
REDEVELOPMENT AUTH RITY OF THE CITY OF OSHKOSH:
By: CLJlxQ~
Robert Pung
Title: Chairman
By:
Title:
15
EXHIBIT A
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EXHIBIT C
EARNEST MONEY ESCROW AGREEMENT
Escrow Number:
The undersigned Authority, Dawes and Escrowee hereby agree that Dawes shall deposit
with Escrowee the earnest money of Ten Dollars ($10.00) ("Funds") called for by the attached
Contract dated ,2006, as amended if amended ("Agreement") to be held by
Escrowee until the occurrence of one of the following:
I. Upon satisfaction or waiver of the Contingency set forth in Section 5 of the
Agreement, Dawes shall deposit in the form of a letter of credit additional Earnest Money equal
to 50% of the Purchase Price.
2. On closing of the sale of real estate as described in the Agreement, Escrowee shall
deliver the Funds to Authority as part of Dawes' purchase money.
3. On receipt of a notice from Dawes or Authority as described in Section 17(b) of
the Agreement instructing you to deliver the Funds. Escrowee shall hold the Funds for 30 days
without disbursement. If on the 30th day Escrowee shall not have received a notice from the
other party contradicting such instruction (a "Contradicting Instruction"), Escrowee shall
deliver the Funds to the requesting party. In such event, Escrowee shall have no further liability
hereunder. In the event Escrowee receives a Contradicting Instruction before having delivered
the Funds to the requesting party, Escrowee shall continue to hold the Funds until the happening
of one of the following:
a. Receipt by Escrowee of joint instructions from Dawes and Authority to
deliver the Funds to a named party; or
b. Delivery of the Funds by Escrowee, at Escrowee's sole discretion, and at
anytime after receipt of a Contradicting Instruction, to a court of competent
jurisdiction. Such delivery may be by interpleader or other writ or petition.
Dawes and Authority agree that, after the Funds are delivered to court under this
paragraph, Escrowee shall have no further liability hereunder and shall not be a
necessary or permitted party in any action brought regarding the Funds; or
c. Entry and receipt by Escrowee of an order of a court of competent
jurisdiction ordering Escrowee to deliver the Funds.
4. This agreement shall be subject to and controlled by the terms of the Offer to
Purchase, Whenever the Offer to Purchase shall refer to Broker in connection with earnest
money ("Broker") shall be read to mean the Escrowee.
1
5. Escrowee shall not be liable for any acts or omissions done in good faith. Dawes
and Authority hold Escrowee harmless for all out-of-pocket expenses incurred by Escrowee, as
to all reasonable actions taken in accordance with this agreement.
6. In the event either Dawes or Authority commences a legal proceeding to enforce any
of the terms of this agreement, the Prevailing Party in such action shall have the right to recover
reasonable attorneys' fees and costs from the other party, including attorney's fees on appeal, to be
fixed by the court in the same action. "Legal proceedings" includes appeals from a lower court
judgment as well as proceedings in the Federal Bankruptcy Court ("Bankruptcy Court"), whether
or not they are adversary proceedings or contested matters. The "Prevailing Party" (i) as used in
the context of proceedings in the Bankruptcy Court means the prevailing party in an adversary
proceeding or contested matter, or any other actions taken by the non-bankruptcy Party which are
reasonably necessary to protect its rights under this agreement, and (ii) as used in the context of
proceedings in any court other than the Bankruptcy Court means the party that prevails in obtaining
a remedy or relief which most nearly reflects the remedy or relief which the party sought; so that,
for example, the Prevailing Party may be a party which is ordered to pay $100.00 where the
obligation to pay $80.00 was undisputed and the claiming party alleged that it was entitled to
$1,000.00. If the services of an attorney are required by any party to enforce a judgment in
connection with this Agreement, the judgment creditor shall be entitled to reasonable attorney's
fees, costs and other expenses, and such fees, costs and expenses shall be recoverable as a separate
item. This provision shall be severable from all other provisions of this agreement, shall survive .
any judgment, and shall not be deemed merged into the judgment.
7. This agreement may be executed by the parties hereto in counterpart. When each
party has executed a copy of the release, the executed copies taken together shall have the same
force and effect as if executed in one document.
REDEVELOPMENT AUTHORITY
OF THE CITY OF OSHKOSH
DAWES OSHKOSH, LLC
Dawes Oshkosh, LLC, a Wisconsin limited
liability corporation
Signature
Print: Jackson R. Kinney, Executive Director
Signature
Print: Robert Pung, Chairman
Signature
Print: J. Peter Jungbacker, President
Address:
215 Church Avenue, P.O, Box 1130
Oshkosh, VVI 54903-1130
Address:
Alexander & Bishop Ltd
377 City Centre
P.O. Box 2348
Oshkosh, Wisconsin 54901
2
Phone
Dated:
Phone
Dated:
Escrowee
Schmitt Title & Escrow Corporation
By:
MWl133016JDOC
mwl133016_4
3