HomeMy WebLinkAbout08-456NOVEMBER 25, 2008 08 -456 RESOLUTION
(CARRIED 7 -0 LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE ASSIGNMENT AGREEMENT / CITY CENTER
ASSOCIATES, LLC AND BANKERS' SERVICE CORPORATION /
PARK PLAZA PARKING STRUCTURE
INITIATED BY: CITY ADMINISTRATION
WHEREAS, there have been discussions between representatives of the City,
City Center Associates, LLC and Banker's Service Corporation regarding the
ownership, operation and maintenance of the parking structure adjacent to the Park
Plaza Hotel at 1 N. Main Street; and
WHEREAS, Bankers' Service Corporation is marketing the hotel property; and
WHEREAS, the Common Council previously approved a Memorandum of
Understanding with Banker's Service Corporation regarding the Assignment of the
City's interest in the Park Plaza Parking Ramp by Resolution 08 -222 on June 24, 2008
which would have resolved the issues between the City and Bankers' Service
Corporation; and
WHEREAS, an agreement has been reached between City Center, who owns
the property beneath the parking structure and Bankers' Service Corporation relative to
the parking structure; and
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the attached Assignment Agreement between the City of Oshkosh, City
Center Associates, LLC and Bankers' Service Corporation related to the Park Plaza
Parking Structure is hereby approved and the proper City officials are hereby authorized
and directed to execute the Assignment in substantially the same form as attached
hereto, any changes in the execution copy being deemed approved by their respective
signatures, and said City officials are authorized and directed to take those steps
necessary to implement the terms and conditions of the Agreement.
ASSIGNMENT AGREEMENT
This Assignment Agreement ( " Agreement "), dated as of , 2008 (the
" Effective Date "), is by and among the City of Oshkosh, Wisconsin, a municipal corporation,
( " City ") City Center Associates, LLC, a Wisconsin limited liability company ( " Assignee "), and
Bankers' Service Corporation, a Wisconsin corporation ( "BSC ").
WHEREAS, Park Plaza of Oshkosh, Inc. ( " Original Lessor ") and the City entered into a
Ground Lease dated August 26, 1985 (the " Ground Lease "), a memorandum of which was
recorded with the Winnebago County Register of Deeds on May 13, 1986 as Document No.
651593, pursuant to which Original Lessor leased to the City the property upon which the
Parking Structure was to be constructed (the " Propert y "), which Property is described on Exhibit
A attached hereto; and
WHEREAS, the City and Oshkosh Center Hotel Venture, a joint venture consisting of
OHV Associates, an Illinois limited partnership and A -K Company, a Wisconsin sole
proprietorship ( " OCHV ") had previously entered into an Agreement dated December 27, 1984,
(the " Parking Agreement "), a memorandum of which was recorded with the Winnebago County
Register of Deeds on December 28, 1984 as Document No. 623909, pursuant to which the City
would lease certain property to OCHV for purposes of constructing a parking structure (the
" Parking Structure ") adjacent to the hotel being developed by OCHV (the " Hotel "); and
WHEREAS, contemporaneously with the execution of the Ground Lease, the City and
OCHV amended the Parking Agreement to provided that (i) OCHV would sublease the Property
from the City, (ii) OCHV would construct the Parking Structure, and (iii) the City would operate
and maintain the Parking Structure; and
WHEREAS, OCHV's interest in the Hotel and the Parking Agreement, as amended, were
ultimately transferred to Heyde Hospitality, Inc., a Wisconsin corporation ( " Heyde "); and
WHEREAS, the Hotel was mortgaged to BSC by Heyde; and
WHEREAS, Heyde eventually declared bankruptcy and BSC foreclosed on Heyde's
interest in the Hotel; and
WHEREAS, Assignee, BSC and the City wish to confirm certain issues relating to the
ownership and maintenance of the Parking Structure in order to facilitate a sale of the Hotel; and
WHEREAS, the City wishes to transfer complete responsibility and control of the
Parking Structure to Assignee, and relinquish any right that the City may have under the Ground
Lease and the Parking Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Assignment of Ground Lease As of the Effective Date, City hereby assigns,
conveys, transfers and sets over unto Assignee all of the City's right, title and interest in, to and
under the Ground Lease.
2. Representations and Warranties The City hereby represents and warrants that it
has not assigned, conveyed, or transferred an interest under the Ground Lease to any third party
other than any rights assigned by operation of the Parking Agreement to BSC, as OCHV's
successor in interest under the Parking Agreement.
3. Acceptance and Assumption of Ground Lease Assignee hereby accepts such
assignment and does hereby assume all of the City's right, title and interest in and to the Ground
Lease arising from and after the Effective Date.
4. Indemnification The City hereby agrees to indemnify and hold harmless
Assignee from all claims, costs, liability, damage and expenses (including reasonable attorneys'
fees and litigation expenses) arising out of, or relating to, any default on the part of the City
under the Ground Lease prior to the date hereof. Assignee hereby agrees to indemnify and hold
harmless the City from all claims, costs, liability, damage and expense (including reasonable
attorneys' fees and litigation expenses) arising out of, or relating to, any default on the part of
Assignee under the Ground Lease arising from and after the date hereof.
5. Assigmnent of Parking Agreement Upon the Effective Date, the City will (i) pay
to Assignee the sum of Ninety -Six Thousand, Two Hundred Twenty Dollars ($96,220),
representing the cost of certain deferred maintenance identified in a study prepared by Carl
Walker, Inc. at BSC's request, and (ii) assign its right, title and interest in the Parking Agreement
to Assignee. From and after the Effective Date, Assignee shall be solely responsible for the
operation and maintenance of the Parking Structure. The City has provided Assignee with a
memorandum from its Inspection Services Division indicating that the items identified in the
Carl Walker study for vehicular /pedestrian fall protection and handrail configuration are not
currently required to be performed by the owner of the Parking Structure and would not be
required to be performed solely due to a subsequent transfer of the Parking Structure. Assignee
acknowledges that should it or a future transferee undertake significant improvements to the
Parking Structure, however, compliance with current codes may be required. BSC hereby
consents to the assignment by the City of its interest in the Parking Agreement.
From and after the Effective Date, Assignee and BSC will, for themselves and
their respective successors and assigns, release, waive and forever discharge the City from any
and all claims, losses, actions, causes of action, suits, demands or liabilities, including, but not
limited to, attorneys fees (collectively "Claims "), in law or equity, whether known or unknown,
which either Assignee or BSC have or may have against the City for or by reason of the Parking
Agreement, or any transaction, matter or cause otherwise relating to or arising out of the
operation of the Parking Structure.
From and after the Effective Date, the City will release, waive and forever
discharge Assignee and BSC from any and all Claims, in law or equity, whether known or
unknown, which the City has or may have against Assignee and/or BSC for or by reason of the
Parking Agreement, or any transaction, matter or cause relating to the operation of the Parking
Structure.
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6. Waiver of Interest To confirm that no additional interest remains under the
Ground Lease, BSC hereby waives any and all right that it may have under the Ground Lease or
any assignment in relation to the Parking Structure.
7. No Liens, Mortgages, or Encumbrances The City represents and warrants that no
liens, judgments, mortgages, or encumbrances have been placed on its interest in the Ground
Lease or the Parking Agreement, nor have any liens, judgments, mortgages or encumbrances
been placed upon any interest which the City may have in the Parking Structure, its fixtures and
improvements.
8. Transfer of City's Interest in Parking Structure To confirm that any interest
which the City may have in the Parking Structure has been transferred to Assignee, the City will
execute a Quit Claim Bill of Sale in the form attached hereto as Exhibit B and deliver same to
Assignee on the Effective Date.
9. Binding g_ffect This Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective successors and assigns.
10. Counterparts The parties agree that this Agreement may be executed by the
parties in one or more counterparts each of which shall be deemed an original, but all of which
together shall constitute one in the same instrument.
11. Governing Law and Venue This Agreement has been negotiated and executed in
the State of Wisconsin and shall be governed by and interpreted and construed in accordance
with the laws of the State of Wisconsin. In the event of any dispute, the venue for any litigation
shall be the Circuit Courts of Winnebago County, Wisconsin, which is the county of the
principal offices of the City and Assignee.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the City, Assignee and BSC have executed this Agreement as
of the date set forth above.
CITY:
CITY OF OSHKOSH, WISCONSIN
By:
City Manager
By:
City Clerk
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
Personally came before me this day of , 2008, the above -named
and , to me known to be
the City Manager and City of Clerk of the City of Oshkosh, Wisconsin and the persons who
executed the foregoing document and acknowledged the same.
x�
Notary Public, State of
My commission:
ASSIGNEE:
By:
Its:
CITY CENTER ASSOCIATES, LLC
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE]
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STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
Personally came before me this day of , 2008, the above -named
, to me known to be the of City
Center Associates, LLC and the person who executed the foregoing document and acknowledged
the same.
Notary Public, State of
My commission:
BSC:
By:
Its:
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
BANKERS' SERVICE CORPORATION
Personally came before me this day of , 2008, the above -named
, to me known to be the of Bankers'
Service Corporation and the person who executed the foregoing document and acknowledged the
same.
Notary Public, State of
My commission:
2469579_ 6
Exhibit A
Property
That part of the First Ward, City of Oshkosh, Winnebago County, Wisconsin which is bounded
and described as follows: Commencing at the Northeast Corner of Lot 1 in Moore's
Subdivision; thence N.89 25' -39 "W. along the existing South line of Marion Street 194.48 feet;
thence N.00 24'46 "E. 15.71 feet, to the true point of beginning; thence N.89 °- 36' -07 "W.
239.75 feet; thence 5.00 °- 23 " -53 "W. 64.50 feet; thence N.89 °- 36' -07 "W. 18.00 feet; thence
5.00 23' -53 "W. 10.50 feet; thence 5.71 °- 10' -01 "E. 18.97 feet; thence 5.00 °- 23' -53 "W. 14.04
feet to a point on a concrete bulkhead; thence 5.70 °- 30' -58 "E. along said concrete bulkhead line
242.84 feet; thence N.06 °- 54' -46 "E. 90.20 feet; thence N.00 °- 24' -46 "E. 84.84 feet, to the true
point of beginning, excluding from said parcel that part of the northerly 14.57 feet of said parcel
lying between the surface of the ground and a horizontal plane at elevation 766.0 feet above
Mean Sea Level, such excluded are being part of the driveway easement hereinafter described.
Said parcel contains 32,493.96 square feet of land.
and a driveway easement, described as follows:
That part of the First Ward, City of Oshkosh, Winnebago County, Wisconsin which is bounded
and described as follows: Commencing at the Northeast Corner of Lot 1 in Moore's
Subdivision; thence N89 °- 25' -39 "W. along the existing South line of Marion Street 194.48 feet;
thence N.00 °- 24' -46 "E. 55.86 feet, to the true point of beginning; thence 5.89 °- 36' -07 "E. 10.00
feet, to a point on the West line of Commerce Street; thence N.00 °- 24' -46 "E. 17.12 feet, along
the West line of Commerce Street; thence N.89 °- 36' -07 "W. 249.77 feet; thence 5.00 °- 23' -53 "W.
71.84 feet; thence 5.89 °- 36' -07 "E. 239.75 feet; thence N.00 °- 24' -46 "E. 14.57 feet; thence
N.89 36' -07 "W. 208.84 feet; thence N.00 °- 23' -53 "E. 40.15 feet; thence 5.89 ° - 36'007 "E.
208.85 feet to the true point of beginning, such easement being limited to that part of said parcel
between the ground level and a horizontal plane at elevation 766.0 feet above Mean Sea Level.
Said parcel contains 9,010.18 square feet of land.
[Note: Unsigned amendments to the documents indicate that this legal may have changed
at some point - can City confirm that there is a fully- executed 1987 amendment to the
Ground Lease replacing the legal for the driveway ?]
Exhibit B
Form of Bill of Sale
QUIT CLAIM BILL OF SALE
THE CITY OF OSHKOSH, WISCONSIN, a municipal corporation ( " Seller "), hereby
quit claims to CITY CENTER ASSOCIATES, LLC, a Wisconsin limited liability company,
(` Buyer "), for good and valuable consideration, any interest of Seller in the parking structure
and all improvements (the "Property "), and not the underlying land, described and located on
the real property described on the attached EXHIBIT A attached hereto. The Property is
hereby sold and transferred to Buyer in its "AS IS, WHERE IS" condition, and Seller makes no
warranties or representations as to the condition of, or title to, the Property.
Dated as of the day of , 2008.
CITY OF OSHKOSH, WISCONSIN
By:
City Manager
By:
City Clerk
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
Personally came before me this day of , 2008, the above -named
and , the City Manager and City Clerk of
the City of Oshkosh, Wisconsin and to me known to be the persons who executed the foregoing
instrument and acknowledged the same on behalf of the City.
Notary Public, Winnebago County, WI
My commission:
This instrument was drafted by:
Michael J. Lokensgard
Godfrey & Kahn, S.C.
100 W. Lawrence Street
Appleton, WI 54911
EXHIBIT A
That part of the First Ward, City of Oshkosh, Winnebago County, Wisconsin which is bounded
and described as follows: Commencing at the Northeast Corner of Lot 1 in Moore's
Subdivision; thence N.89 °- 25' -39 "W. along the existing South line of Marion Street 194.48 feet;
thence N.00 °- 24'46 "E. 15.71 feet, to the true point of beginning; thence N.89 °- 36' -07 "W.
239.75 feet; thence 5.00 °- 23 " -53 "W. 64.50 feet; thence N.89 °- 36' -07 "W. 18.00 feet; thence
5.00 23' -53 "W. 10.50 feet; thence 5.71 °- 10' -01 "E. 18.97 feet; thence 5.00 °- 23' -53 "W. 14.04
feet to a point on a concrete bulkhead; thence 5.70 °- 30' -58 "E. along said concrete bulkhead line
242.84 feet; thence N.06 °- 54' -46 "E. 90.20 feet; thence N.00 24' -46 "E. 84.84 feet, to the true
point of beginning, excluding from said parcel that part of the northerly 14.57 feet of said parcel
lying between the surface of the ground and a horizontal plane at elevation 766.0 feet above
Mean Sea Level, such excluded are being part of the driveway easement hereinafter described.
Said parcel contains 32,493.96 square feet of land.
and a driveway easement, described as follows:
That part of the First Ward, City of Oshkosh, Winnebago County, Wisconsin which is bounded
and described as follows: Commencing at the Northeast Corner of Lot 1 in Moore's
Subdivision; thence N89 °- 25' -39 "W. along the existing South line of Marion Street 194.48 feet;
thence N.00 °- 24' -46 "E. 55.86 feet, to the true point of beginning; thence 5.89 °- 36' -07 "E. 10.00
feet, to a point on the West line of Commerce Street; thence N.00 °- 24' -46 "E. 17.12 feet, along
the West line of Commerce Street; thence N.89 °- 36' -07 "W. 249.77 feet; thence 5.00 °- 23' -53 "W.
71.84 feet; thence 5.89 °- 36' -07 "E. 239.75 feet; thence N.00 °- 24' -46 "E. 14.57 feet; thence
N.89 36' -07 "W. 208.84 feet; thence N.00 23' -53 "E. 40.15 feet; thence 5.89 ° - 36'007 "E.
208.85 feet to the true point of beginning, such easement being limited to that part of said parcel
between the ground level and a horizontal plane at elevation 766.0 feet above Mean Sea Level.
Said parcel contains 9,010.18 square feet of land.
CITY HALL
215 Church Avenue
P.O. Box 1130
Oshkosh, 9 0 3 - 1 1 3 0
54 City of Oshkosh
903 -1130
MEMORANDUM
O.IHKO- H
Date: November 21, 2008
To: Honorable Mayor & City Council
From: Mark A. Rohloff, City Manager f�� -5--
Subject: PARK PLAZA HOTEL PARKING STRUCTURE
When the Park Plaza Hotel parking structure was constructed in the 1980's, the financing for
construction was done through many creative methods in order for the city to qualify for federal
funding. This arrangement was subsequently revised to meet demand as the Park Plaza and adjoining
City Center changed ownership over the years. The land beneath the Park Plaza parking structure is
owned by City Center, LLC. The actual owner of the parking structure is in question, but belongs to
either the Park Plaza or the city. The city maintains that the Park Plaza owns the structure, and through
payments made by the Park Plaza to the city, the city agrees to maintain the structure. The Park Plaza
and City Center, LLC believe that the city owns the structure.
As the Park Plaza has fallen on difficult financial times, it went into foreclosure and was turned over to
Bankers Bank of Madison. Bankers Bank has been interested in selling the hotel, but has not been able
to find a buyer. According to the bank, one of the problems had to do with the complicated trail of
agreements that came from the construction of the parking structure. Bankers Bank sought the city's
assistance in clearing up the title to the structure. In June, 2008, the Council authorized staff to enter
into an agreement with Bankers Bank to transfer any property rights it may have in the Park Plaza
parking structure to Bankers Bank. In doing so, the city would pay the Park Plaza/Bankers Bank
$96,000 for deferred maintenance on the parking structure. City Center, LLC disagreed with the
agreement, citing a clause in the land lease that alleged City Center has a right to approve any
ownership transfer. Over the past several months, I have been working with all parties to address this
issue. It now appears that City Center is willing to accept the same agreement that would transfer
ownership rights in the parking structure to them, finally placing the parking structure and underlying
land under unified ownership. At the same time, City Center would enter into an agreement with
Bankers Bank to lease the entire parking structure on the same financial terms that the Park Plaza had
with the city. Bankers Bank needs to have this transaction completed as soon as possible in order for
them to market the hotel to prospective buyers. The City Attorney has reviewed the attached
agreement with the City Center, LLC attorney. Staff believes that if both parties are agreeable to this
arrangement, we are agreeable to this transaction. As a result of this agreement, Bankers Bank's claim
against the city would be moot, as the ownership issue would be resolved to its satisfaction.
If Council would not support this transfer, staff would continue with the transaction with Bankers Bank
that was previously approved. However, with all parties in agreement to the new transaction that
would simplify the ownership issue for all, this option does not appear to be necessary.
s.„