HomeMy WebLinkAboutRDA/RRiver Front Senior Apartments, LLC 01-0230-0000 j1 a f
1 1 Lease Agreement —''� `' C... REGISTER "S OFFICE
WINNEBAGCO COUNTY, WI
Document Number Document Title RECORDED ON
04 /26 /2010 11 :2 Af
JULIE FAGEL
REGISTER OF DEEDS
This LEASE AGREEMENT the "Lease"), made and RECORDING FEE °1.00
( ) TRANSFER FEE
entered into this 6C" - day of April, 2010, is by and between the
City of Oshkosh, a Wisconsin municipality, and the OF PAGES 6
Redevelopment Authority of the City of Oshkosh, with their
principal offices located at 215 Church Ave., P.O. Box 1130,
Oshkosh, Wisconsin 54903 -1130, (collectively "Lessor ") and
River Front Senior Apartments, LLC, 230 Ohio Street, Suite
200, Oshkosh, Wisconsin 54902 ( "Lessee "): Recordin Area (
Name and Return Address
City Attorney's Office
215 Church Ave. P.O. Box 1130
Oshkosh, WI 54903 -1130
WITNESSETH: 0102300000
Property Identification Number
WHEREAS, Lessor is the owner of certain real property identified as part of the Marion
Road /Pearl Avenue Redevelopment Phase II Area ( "Project "), in the City of Oshkosh, Winnebago
County, Wisconsin; and,
WHEREAS, the Project is comprised of areas to be developed both North of Marion Road
( "Project — North ") and South of Marion Road ( "Project — South "), with each Project area separately
described in Certified Survey Maps. The subject of this lease ( "Leased Premises ") is Lot 1 of Project —
South. A Certified Survey Map of Project — South, which identifies Lot 1, is attached as Exhibit A and
fully incorporated into this Lease; and,
WHEREAS, Lessor and Oshkosh River Development, LLC have entered into an Amended and
Restated Development Agreement ( "Agreement ") on October 31, 2008 for the purpose of developing
some or all of the Project. Further Amendments and restatements of this Agreement were dated April
29, 2009 and July 29, 2009. The Agreement, as Amended and Restated, was authorized by the
Common Council of the City of Oshkosh through Resolution 08 -411, adopted October 28, 2008,
Resolution 09 -92, adopted March 24, 2009, and Resolution 09 -277, adopted July 14, 2009. Copies of
the Agreement, as Amended and Restated, are not attached hereto but Lessee acknowledges that it
has copies of the referenced Agreement, is familiar with it and agrees to be bound by its terms as it
may pertain to the development of the Leased Premises; and
WHEREAS, Oshkosh River Development, LLC is the sole member of River Front Senior
Apartments MM, LLC, which is the manager of Lessee; and
WHEREAS, the Redevelopment Authority of the City of Oshkosh and the Common Council of the
City of Oshkosh through Resolutions, adopted April 13 and April 20, 2010, have amended the
Agreement which would result in the Lessee being considered a developer of the Leased Premises;
and
WHEREAS, certain environmental remediation is required to be performed on the Leased
Premises and the funding sources that are paying for the environmental remediation require that
Lessor continue to own the Leased Premises until such remediation is completed; and
WHEREAS, Lessee needs to commence construction of a 60 -unit apartment complex and related
improvements on the Leased Premises prior to the completion of the environmental remediation; and
WHEREAS, in order to allow Lessee to commence construction of such improvements Lessor and
Lessee have agreed to enter into this Lease; and
WHEREAS, improvements to the Leased Premises during the course of the lease will be financed
through the Wisconsin Housing and Economic Development Authority and West Pointe Bank
(collectively, Lenders). The Lenders may request, and upon submission of separate documents
reasonably agreeable to the Lessor but subject to obligations under the Agreement, as Amended and
Restated, and only in the event of a default by Lessee, may be granted an interest in this Lease up to
and including the right to purchase the Leased Premises from the Lessor in place of Lessee, but only to
extent the Lender's interest is related to construction of the improvements on the Leased Premises and
as otherwise pursuant to the terms of the Agreement, as Amended and Restated; and,
WHEREAS, it is in the interests of the Lessor and Lessee that the Lessee be allowed to lease the
Leased Premises according to the terms of this Lease and the Agreement as Amended and Restated..
NOW, THEREFORE, the parties agree as follows:
1. In exchange for one dollar ($1.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Lessor agrees to lease
to Lessee, and the Lessee agrees to accept such lease, on the terms and conditions
expressly set forth and referenced herein, the property identified and described as Lot
1 in Exhibit A attached hereto ( "Leased Premises ").
2. The term of this Lease shall commence on the date it is executed by all parties, and
shall end on the earlier of (a) the date that is fifty years after the date of
commencement of this Lease (b) the date in which Lessee, or a Project Lender as
may otherwise be allowed under an assignment, closes on its purchase of and
acquires full ownership interest in the Leased Premises or (c) the Agreement as
Amended and Restated is terminated. Pursuant to the terms of the Agreement,
Lessor is obligated to perform certain remediation of existing hazardous substances
on the Leased Premises (the "Remediation "). Lessor shall perform the Remediation
pursuant to the terms of the Agreement and, upon completion of the Remediation,
shall obtain a Certificate of Completion from the Wisconsin Department of Natural
Resources (the "WDNR ") for the Leased Premises. All parties understand that the
Remediation cannot be completed until construction of the improvements on the
Leased Premises are completed. All parties further understand that the Leased
Premises cannot be conveyed until the grants obtained for Remediation are closed
out by the Wisconsin Department of Commerce and the U.S. Environmental
Protection Agency. Lessee shall close on its purchase of the Leased Premises on the
earliest practical date after the later of the two following events: the issuance of the
Certificate of Completion; or, the closeout of the Remediation grants. It is expected
that the grants will be closed out by the Agencies within one hundred twenty (120)
days after the issuance of the Certificate of Completion. All parties agree that the
timely expiration of this lease, and conveyance of the Leased Premises, is in
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everyone's best interest and will work in good faith towards that end. Lessor shall
convey the Leased Premises to Lessee pursuant to this Lease and the Agreement as
Amended and Restated.
3. There shall be no Lease payments due from Lessee to Lessor other than the
payment identified in paragraph number 1, above, during the term of this Lease.
4. The Lessee shall be allowed to construct and operate a 60 -unit apartment complex
and related improvements as approved by Lessor pursuant to the terms of the
Agreement on the Leased Premises. No agreements by Lessee with others which
purport to allow the use of the Leased Premises in a manner contrary to this Lease,
or to the Agreement, as Amended and Restated, between Lessor and Oshkosh River
Development, LLC, or pursuant to any Assignment of Lease as approved by the
Lessor, shall be enforceable against Lessor or in rem against the Leased Premises.
5. During the term of this Lease, the Lessor shall be allowed reasonable access to the
Leased Premises for any purpose related to any municipal function, to meet its
obligations under this Lease or the Agreement with Oshkosh River Development,
LLC, or to function in its capacity as the owner of the Leased Premises. Lessor shall
make all reasonable efforts to not materially disrupt Lessee's use of the property.
Lessee acknowledges that the Remediation will be occurring at the same time that
Lessee is constructing its improvements on the Leased Premises, and Lessor and
Lessee shall cooperate with each other in good faith to coordinate their separate
activities on the Leased Premises.
6. During the term of this Lease, Lessee shall be deemed the sole owner of all
improvements constructed on the Leased Premises by Lessee.
7. The Lessee has had sufficient access to the Leased Premises and as a result is or
should reasonably be aware of all aspects related to its condition. The Lessor makes
no express or implied promises or warranties related to the condition of the Leased
Premises except those identified in the Agreement, as Amended and Restated.
8. The Lessee assumes full and complete responsibility for any development activities,
fixtures, or improvements to the Leased Premises prior to the date Lessee purchases
the Leased Premises pursuant to this Lease, or prior to the date in which a Lender
involved in financing construction of the improvements acquires the Leased Premises
pursuant to the terms of an assignment of lease or other document approved by the
Lessor.
9. Lessee acknowledges that it assumes the responsibility of ensuring that its
investments in or on the Leased Premises are protected through separate
agreements with Lessee's Lenders.
10. Lessee shall have all necessary insurance with sufficient limits which will cover its
employees, actions and property on the Leased Premises site. Lessee shall hold the
Lessor harmless from any accident or incident involving Lessee, its employees or
agents, or any dispute with Oshkosh River Development, LLC or any 3rd party
resulting from any action of Lessee occurring during the term of this Lease.
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11. The Lessee is responsible for paying all utilities, costs, expenses, and obligations of
any kind incurred during the term of this Lease. The Lessee is further required, at its
expense, to keep and maintain in good order, condition, and repair the Leased
Premises and all improvements constructed thereon.
12. All terms of the Agreement, as Amended and Restated, pertaining to the development
required, or allowed, on the Leased Premises are incorporated into this Lease,
including but not limited to representations and warranties. Lessor may pursue any
breach or default of this Lease or of the Agreement, as Amended and Restated, as
provided by the Agreement. However, both parties understand and agree that any
default or alleged default relating to a development parcel other than the Leased
Premises within the Project shall not constitute a default relating to this Lease and the
Leased Premises.
13. The parties to the Agreement, as Amended and Restated, are and remain the City of
Oshkosh and Oshkosh River Development, LLC. Lessee does not become a party to
the Agreement, as Amended and Restated, by virtue of this Lease. Nevertheless, the
Lessee's restrictions on the use of the Leased Premises during the terms of this
Lease are set forth in the Agreement, and are specifically incorporated into this
Lease. To that end:
a. All other terms, conditions, benefits, burdens, and agreements between these
parties relating to the Leased Premises shall remain in full force and effect,
without alteration, with the exception of any terms that prevent the Lessee from
constructing and operating the approved apartment complex prior to taking
ownership of the Leased Premises; and,
b. The information required in the following paragraphs of the Agreement, as
Amended and Restated, shall be provided to the Lessor on or before the date
this Lease is executed: 4(a), (b), (d), (e), (g), (i), (m), and (n); and,
c. The Lessee affirmatively states that Art Dumke and /or Andy Dumke shall at all
times during the term of this Lease have sole day -to -day management of any
development activities or improvements occurring on the Leased Premises to
the extent required by the Agreement, as Amended and Restated.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
LESSEE: LESSOR:
River Front Senior Apartments, LLC City of Oshkosh
By River Front Senior Apartments
MM, LLC, Manager Mark A. Rohloff, City Manager
By Oshkosh River Development, LLC, -
Sole Member
Attest: i ,' L_
By Pamela R. Ubrig, City C e k
(
Andr J. Dumke,
Managing Member
Oshkosh - -d- eelopment Authority
I
I
010hnas r r C Nit r,v
Print me Print Title
Al en Davis, xecutive Director
This document drafted by:
David J. Praska
Assistant City Attomey
Oshkosh, Wisconsin 54903
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