HomeMy WebLinkAboutParking Easement & Maintenance Agreement
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PARKING EASEMENT
AND
MAINTENANCE AGREEMENT
THIS PARKING EASEMENT AND MAINTENANCE AGREEMENT (hereinafter referred
to as the IlAgreemenf') is made by and among LANDMARK LIMITED PARTNERSHIP III
(hereinafter referred to as IlLandmarkll), U.S. OIL CO., INC. (hereinafter referred to as "U.S. Oil II),
lOU MING SANG and CHOW YUK CHUEN as tenants in common (hereinafter referred to as
IlGolden China"), and B & G REALTY, INC. and APPLETON THEATRES CORPORATION,
formerly known as OSHKOSH T~ TRES CORPORATION (hereinafter collectively referred to
as "Theatres") this") ( day of~ 1996.
WITNESSETH:
WHEREAS, Landmark, U.S. Oil, Golden China and Theatres own the real property
described below which collectively is known as Landmark Plaza, located in the southeast quadrant
of the intersection of South Koeller Street and Witzel Avenue in Oshkosh, Wisconsin, as depicted
on Exhibit A attached 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
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WHEREAS, Landmark, U.S. Oil, Golden China and Theatres and/oi'their
predecessors in title previously entered into numerous recorded documents setting forth their rights
and obligations with respect to the common 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 recorded 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")
legally described as follows:
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.," .
That part of the NWl/4 of the SWI/4 of Section 22, TI8N, RI6E, 6th Ward, City of
Oshkosh, Winnebago County, Wisconsm, which is bounded and described as follows:
Lot 2 in Certified Survey Map No. 1100.
Outlot 1 in Replat of Lots 13-21, First Addition to T.H.B. the
Homebuilders Subdivision. ALSO; Beginning at the NE corner of Lot
2 in Certified Survey Map No. 1100, thence Westerly 586.61 feet
more or less along the North line of said Lot to the SE comer of lands
described in Document No. 437752 (Oshkosh Theaters Corp.), thence
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 or less along the North line and extended
North line of lands described in Document No. 7521R9 (Oshkosh
Theaters Corp.) to a point on the 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), thence Easterly 177.78 feet more or less along the South
line oflands 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. 509115, thence Westerly 57.49 feet
more or less along the North line oflands described in Document No.
600697 to a point on the East line of South Koeller Street, thence
Northeasterly along the East line of Koeller 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 oflands 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 1 in Certified Survey Map No.
3225 (the U.S. Oil Property); and
WHEREAS, U.S. Oil is the owner of the property (the "U.S. Oil Property") legally
described as follows:
Lot 1 in Certified Survey Map No. 3225, in the NW1/4 of the SW1/4
of Section 22, TI8N, RI6E, City of Oshkosh, Winnebago County,
Wisconsin; and
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WHEREAS, Golden China is the owner of the property (the "Golden China
Property") legally described as follows: W
That part of the NWl/4 of the SW1I4 of Section 22, TI8N, RI6E, in
the 6th Ward, City of Oshkosh, Winnebago County, Wisconsin, per
Document No. 600697 which is bounded and described as follows:
Beginning at the Northwest comer of lands described as Parcel "111
Document No. 509115, thence South 00 degrees 31 minutes 20
seconds West along the Westerly line of lands described as Parcel "1"
Document No. 509115, a distance of 286.00 feet, thence North 89
degrees 13 minutes 40 seconds West along the Northerly line oflands
described as Parcel "2" Document No. 509115, a distance of 177.78
feet, thence Northeasterly 195.06 feet along the arc of a 666.20 foot
radius curve, being the Easterly right of way of South Koeller Street
and having a chord of North 14 degrees 16 minutes 38 seconds East
194.36 feet, thence North 37 degrees 56 minutes East along the
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 the point
of beginning; and
WHEREAS, Theatres is the owner of the property (the "Theatres Property II) legally
described as follows:
That part of the NWlf4 of the SW1/4 of Section 22, T18N, RI6E, in
the 6th Ward, City of Oshkosh, Winnebago County per Document
No. 437752, bounded and described as follows:
Commencing at the Wl/4 corner of said Section, thence South along
the West line of said Section 996.38 feet, 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 of U.S. Highway No. 41,
thence North 00 degrees 05 minutes 22 seconds East along the
aforesaid Easterly right of way line of U.S. Highway No. 41 a
distance of 215.02 feet, thence South 89 degrees 04 minutes 00
seconds East 255.52 feet, thence South 00 degrees 41 minutes 00
seconds West 215.00 feet, thence North 89 degrees 04 minutes 00
seconds West 253.29 feet to the place of beginning. Said parcel
contains 1.2556 acres of land. TOGETHER WITH:
That part of the NWl/4 of the SWl/4 of Section 22, TI8N, RI6E, in
the 6th Ward, City of Oshkosh, Winnebago County, Wisconsin,
which is bounded and described as follows:
Commencing at the Wl/4 corner of said Section, thence South 00
3
degrees 51 minutes 21 seconds West along the 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 line of South Koeller Street,
thence continuing South 89 degrees 17 minutes 19 seconds East along
the South line oflands described in Document No. 752189 aforesaid
180.89 feet to the SE corner 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
corner 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 seconds West along
the North line of said lands 75.00 feet to the point of beginning. Said
parcel 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 0031'20" West
(previously recorded as South 0041' 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 beginning; thence continuing South
0031'20" West (previously recorded as South 0041' West), along the
Westerly line of lands described as Parcel "1" in Document No.
509115, a distance of 100.00 feet; thence North 890 13' 40" West
(previously recorded as North 890 4' 0" West), along the Northerly
line oflands described in Document No. 437752, a distance of 180.89
feet; thence Northeasterly 21.13 feet along the arc ofa 11,409.16 foot
radius curve, being the Easterly right-of-way of South Koeller Street
and having a chord of North 0037' 49" East, 21.13 feet; thence North
00 41 r East, along the Easterly right-of-way of South Koeller Street,
a distance of 53.38 feet; thence Northeasterly 25.46 feet 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 1046' 41" East, 25.46
feet; thence South 890 13' 40" East (previously recorded as South 890
4' East), along the Southerly line of lands described as Parcel "2.", in
Document No. 509115, a distance of 180.14 feet, to the place of
beginning; and
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NOW THEREFORE, based upon the foregoing premises which are hereby ratified
and affirmed, and for good and valuable consideration, 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 follows:
1. Landmark, U.S. Oil, Golden China and Theatres is each granted a perpetual, non-
exclusive easement and right of way for purposes of foot and vehicular traffic, ingress and egress,
and parking to, from and on the Landmark Plaza Parking Facility as depicted on Exhibit A hereto
and consisting of 1,137 parking spaces on the Landmark Property (hereinafter the "Parking F acility")
for the use of each of the parties and the tenants, employees, customers and agents of each.
2. Notwithstanding the non-exclusive nature of the parking easements set forth in
paragraph 1 above, from 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 six parking spaces on the Theatres
Property for every 1,000 square feet of buildings on the Theatres Property are hereby deleted.
3. Landmark shall be responsible for the performance of, and initial payment for, all
repair and maintenance of the Parking Facility, including snow and ice removal, grounds keeping,
lighting, ordinary repairs, restriping, and payment of real 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
to exceed eight percent (8%) of the Common Costs. The portion of the Common Costs plus
management fee due from each of the Parties shall equal the product obtained by multiplying the
total Common Costs plus management fee by a fraction, the numerator of which is thetotal square
footage of the buildings located on the Party's Property and the denominator of which is the total
square footage of all buildings located on the Landmark property, the U.S. Oil Property, the Golden
China Property and the Theatres Property.
4. Each Party's portion of the Common Costs plus management fee shall be paid in
monthly installments, in advance, on or before the first day of each calendar month, in an amount
estimated by Landmark. Using the actual bills for all such Common Costs at the calendar year end,
and providing copies of those bills 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 actual amount due from the Party for
such year as shown in the statement, the Party shall 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 Party 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 from the Party to Landmark. From time to time, Landmark shall
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notify each of the Parties in writing of Landmark's estimate of the Party's monthly installments due
hereunder.
5. If Landmark fails to perform any of the maintenance and/or repair obligations set
forth in paragraph 3 above and fails to cure that non-performance within thirty (30) days after written
notice from any of the Parties to Landmark (however, no notice shall be required in an emergency)
the notifying Party shall have the right, but not the obligation, to perform the maintenance and/or
repair and to be reimbursed by Landmark from all Parties' paid Common Cost installments for the
reasonable cost of that performance, such reimbursement to occur within thirty (30) days after
Landmark's receipt of a statement therefor from the performing Party together with any
documentation substantiating the costs incurred.
6. Each of the Parties agrees to indemnify and hold the others harmless from and against
any and all liability for personal injury 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
performing 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 costs 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 shall equal the product obtained by multiplying the total of the Improvement Costs by a
fraction, the numerator of which 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 located 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 Plaza
have been recorded with the Winnebago County Register of Deeds Office (hereinafter referred to
as the "Recorded Documents") and agree that if there is an inconsistency(ies) or ambiguity(ies)
between the Recorded Documents and this Agreemen,t, the provisions of this Agreement shall
control:
Deed of Declaration contained in Instrument executed by Michael Montlack, Trustee, dated
August 12, 1970 and recorded in the office of the Register of Deeds on August 17, 1970 in
Volume 1281, page 271, as Document No. 398657.
Amendment to Deed of Declaration contained in Instrument executed by Roger E. Benjamin,
Trustee (successor to Michael Montlack, Trustee), S-M, Inc. and Welles Stores, Inc.
, Oshkosh, dated July 21, 1971 and recorded in the office of the Register of Deeds on August
3, 1971, in Volume 1316, page 594, as Document No. 411613.
Restatement of Deed of Declaration contained in Instrument, dated April 24, 1972 and
recorded in the office of the Register of Deeds on May 31, 1972 in Volume 1342, page 548,
as Document No. 421441.
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First Amendment to Restatement of Deed of Declaration contained in Instrument by and
between Landmark Limited Partnership III, wa Wisconsin limited partnership; Spicer
Enterprises, Inc., a Wisconsin corporation; Thomas S. Timmers; John Pfefferle, Harry J.
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 Benjamin, 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 No. 410187.
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, Inc., both of which are Wisconsin 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 between Oshkosh Theatres
Corporation, a \Visconsin corporation and Bank of the Commonwealth, a Michigan banking
corporation and Freeway Enterprises, a Wisconsin partnership, 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 forth 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 assumed all obligations
of the transferor hereunder.
B. The Parties, and their respective heirs, personal representatives, successors and
assigns, may enforce their rights under this Agreement in any manner provided by law or equity,
including without limitation, a suit for damages or injunctive relief. In the 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 part of the judgment, its reasonable attorney fees and
costs. '
C. This Agreement shall be governed and construed in accordance with the laws of the 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.
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E. The invalidity or unenforceability 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 impair any such right or power or be construed to be a waiver
thereof. A waiver by any such Party hereunder of any of the covenants, conditions or declarations
hereof to be performed by another shall not be construed to be a waiver of any succeeding default
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 land described as part of the Theatres Property, this
Agreement shall be rendered null 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 P ARTNERSIDP III
By~,.,hJ fJ~
Name: ROlf) tl-L D 1- lJ P (Je r0
Title: J~C!l r- T ^-Je...r-
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B~?""'-?- - '" -~---c~_
Name:J)/~/V'?'.t~ .:F (s,~.4?t/ ~h.
Title: -)''> /1';.2"7/1/ i=->? .
By: lTI Cl t-jC lLL llll .tr:LVI'L Y
Name: Ma iorie M. ~ounq
Title: General Counsel
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APPLETON THEATRES CORPORATION fJk/a OSHKOSH THEATRES CORPORATION
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By:
By:
Name:
Title:
B & G REALTY, INC.
By:
Name:
Title
B;:~ 5'Okrf(/iM-
Jo III ang
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ACKNOWLEDGMENTS
STATE OF WISCONSIN )
) ss
WINNEBAGO COUNTY )
_\) ,Personally came before me on this th~~\hctay of :~\: '-I ,199~~the above named_
~C\.\ (\ S\.~ x. "\' \l '( f'-J and \) ~:-::. Nt S F _~ ,~!) l\ ~ as \. C\. n N ~ y- and
, '" (K '" "\ ~~.' , respectively, of Landmark Limited Partnership III, to me known to be the
persons who executed the foregoing instrument and a _~ledged the same.
(''A . ----^f\(\ ~ ~QJv\j,-&
Notary Public, State ofWiscom:iQ C\ (\- ~
My Commission: \ \- \ '1- \. -l l .
c: \easement\parkgma.int
9
STATE OF WISCONSIN )
) ss
WINNEBAGO COUNTY )
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Personally came before me on this the 10th day of May .1996, the above
d Thomas A. d Marjorie M. p 'd t dG C 1 . I fU
name achrnidt an Young as resl en an en. ounse,respectIvey,o .S.
Oil Co., to me known to be the persons who executed the foregoing instrument and acknowledged the
same.
/) ct-
( ~. V~,~( 1'---1 Il. . 'C>Ch,
Notary Public, State 6fWisconsin
My Commission: 5; I /(r" (C,-,X'
STATE OF WISCONSIN )
) ss
MIL W AUKEE COUNTY )
Personally came before me on this the 27th day of March, 1996, the above named Thomas F.
Kissinger and Bruce J. Olson as Secretary 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.
~~~l~, s~e:itt~rlSi~n ~J, <""I'",v
My Commission: '/ ~ 4'9
STATE OF WISCONSIN )
) ss
MILWAUKEE COUNTY )
Personally came before me on this the 27th day of March, 1996, the above named 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. i
~:;:l~, s~)::;"~~i::kc nA ,,\ (,jOy
My Commission: 1 )0--:5) q (1
10
STATE OF WISCONSIN )
) ss
WTNNEBAGO COUNTY )
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Personally came before me on this the ~.j-day of ~ . ,1996, the above named
Jou Ming Sang and Chow Yuk Chuen to me known to e the persons who executed the foregoLi1g
instrument and acknowledged the same. _ ~~~ f ~
~vv.()lS' i3. S'c h tV F1' b
Notary Public, State of Wisconsin
My Commission: J/ - ~ - c;' 7
THIS INSTRUMENT DRAFTED BY:
Linda R. Treland
Marcus Theatres Corporation
250 East Wisconsin Avenue
Suite 1750
Milwaukee, Wisconsin 53202-4220
State Bar Member No. 1001106
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. PROPOSED DEVELOPEMENT
L-ANDMARK PLAZA
300 S. KOELLER ST.
OSHKOSH. WI 54901
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June 1, 1996
Golden China Restaurant
280 S. Koeller Rd.
Oshkosh, Wi 54901
Dear Sir:
It is agreed by Landmark Limited III that Golden China
Restaurant will not be billed for costs of the common
area maintenance in excess of the amount that has been
billed prior to this date.
a;:2~~-
Dennis E. Schwab
General Partner
Landmark Limited III
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June 1, 1996
Golden China Restaurant
280 S. Koeller Rd.
Oshkosh, Wi 54901
Dear Sir:
It is agreed by Landmark Limited III that Golden China
Restaurant will not be billed for costs of the common
area maintenance in excess of the amount that has been
billed prior to this date.
cV~~
Dennis E. Schwab
General Partner
Landmark Limited III