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HomeMy WebLinkAboutRDA/H&M Commercial, LLC I ;ri . / LEASE THIS AGREEMENT is entered into on the date identified below, between the Oshkosh Redevelopment Authority and the City of Oshkosh, a municipal corporation, located in Winnebago County, Wisconsin, with its principal offices located at 215 Church Avenue, Oshkosh, WI 54903 -1130 (collectively City or Lessor), and H & M Commercial, LLC, a Wisconsin Limited Liability Corporation with its principal offices at N69 W25986 Brighton Drive, Sussex, Wisconsin 53089, (H&M or Lessee), for the consideration and mutual covenants given and received by each party described in this document, and more particularly set forth as follows: LEASED PREMISES I in consideration of the agreements contained herein, Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the premises located at and commonly known as 1 East 8 Street, City of Oshkosh, Winnebago County, Wisconsin, and more particularly described as follows (Leased Premises): PARCEL 1 Lots 1 , 2 , 3 , 4 , 5 , 6 , 7 , 9 , 1 0 , 1 1 , 1 2 , 1 3 , 1 4 , 1 5 , 1 6 , 1 7 , 1 8 , 1 9 , 2 0 , 2 1 , 2 2 , 2 3 and 24, all in Block 13 in the plat of the ORIGINAL THIRD WARD, in the Third Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894, EXCEPTING therefrom that portion of said Lot 12 described as follows, viz: - Commencing at the Northeast corner of said Lot 12; thence south, along the East line of said Lot 12, 7.4 feet; thence northwesterly, in a straight line, to a point on the North line of said Lot 12 that is 5.5 feet west of the Northeast comer thereof; thence east, along the North line of said Lot 12, 5.5 feet, to the place of beginning. PARCEL 2 The South 172.6 feet of the West 1/2 of that portion of Indiana Street (now vacated) lying East of and adjacent to Block 13 and North of the extended South line thereof, in the plat of the ORIGINAL THIRD WARD, in the Third Ward, City of Oshkosh, Winnebago County, Wisconsin, per Leach's Map of 1894. TERM This lease shall commence on the 1st day of November, 2009, and shall expire on April 30, 2010. This Lease shall not automatically be renewed or extended, except as the parties may stipulate in writing. There shall be no period tenancy created by unwritten agreement or Section 704.25, Wisconsin Statutes, in the event Lessee holds over at the expiration of the lease. Both parties contemplate the potential of continuing the Lessor /Lessee relationship on a month - to-month basis after April 30, 2010, but such an arrangement can only be confirmed in writing, and neither party is obligated to enter into such an agreement. Lessee shall remove all of its personal property from the Leased Premises on or before the date that this Lease expires or is terminated. All property remaining on the premises after the expiration or termination of the lease shall be considered abandoned and shall become the property of the Lessor to dispose of at its discretion, without further notice or confirmation. 12/11/2009 1 Lessee shall be solely responsible for the removal and disposal from the Leased Property, or the cost of such removal and disposal, of any and all toxic or hazardous materials which require separate and specialized disposal upon the expiration or termination of this Lease and are on or in the leased premises as a result of the Lessee' occupancy of the property, whether before, during, or after the term of this particular lease. TERMINATION Either party may elect to terminate this Lease for cause prior to the expiration date, provided the other party is given written notice of the intent to terminate and the reason for termination, and is given at least 30 days to cure such cause. "Cause" includes but is not limited to the breach of any material term of this agreement, the Lessor's material interference with the Lessee's use of the property, and the Lessee committing waste of the leased premises. The fact that either party may inadvertently, or by choice, fail to raise issues of cause during the course of this lease shall not waive such issue at a later date. LEASE AND OTHER PAYMENTS } Lessee shall pay Lessor Twenty Two Thousand Eight Hundred and No /100 dollars ($22,800.00) for the lease of the premises, to be paid in six (6) monthly installments of Three Thousand Eight Hundred and No /100 dollars ($3,800.00). Payments are due starting November 1, 2009, and the 1 of each month thereafter. Payments shall be made on the due date to: City of Oshkosh, Attn: Finance Department, 215 Church Avenue, P.O. Box 1130, Oshkosh, Wisconsin 54903 -1130. In addition to the above lease payment, Lessee shall pay to Lessor the amount of Thirteen Thousand One Hundred Three and 09/100 dollars ($13,103.10), to be paid in six (6) monthly installments of Two Thousand One Hundred Eighty Three and 85/100 dollars ($2,183.85). These additional payments are due starting November 1, 2009, and the 1 of each month thereafter. Payments shall be made on the due date to: City of Oshkosh, Attn: Finance Department, 215 Church Avenue, P.O. Box 1130, Oshkosh, Wisconsin 54903 -1130. The purpose of these additional payments are to reimburse the Lessor for the prorated real property taxes paid by Lessor to the prior owner of the leased premises, Chamco, Inc. at the time Lessor acquired the property. UTILITIES Lessee shall be responsible for payment of all utilities when due. Utilities for which the Lessee is responsible include but are not limited to all water, heat, gas, electricity, air conditioning, garbage pick up, and any other utility service used by the Lessee. Lessee shall also be responsible for all utility assessments by the City of Oshkosh, including any utility division of the City, such as assessments for storm water. Lessee shall be responsible for all utility payment and assessments, regardless of whether the charge or assessment occurred before or during the commencement of this lease, provided the Lessee occupied the leased premises at the time of the charge or assessment. Lessee's failure to make utility payments and assessments 30 or more days from their due date will constitute a material breach of 12/11/2009 2 1 this agreement. Lessee shall pay in full all past due, outstanding, and current utility charges, whether or not placed on the tax rolls for the Leased Premises, including any penalties and interest, on or before April 30, 2010. Utility bills and assessments which are received by Lessee after April 30, 2010, but incurred during Lessee's possession of the Leased Premises, shall be paid upon receipt. USE OF PROPERTY Lessor understands that Lessee will sublease a portion of the Leased Premises to A.D. Incorporated of Milwaukee for a period during the course of its lease, and the sublessee shall use the Leased Premises to operate an industrial packaging and related services business. Lessor,agrees to this sublease but by such consent does not release Lessee from its obligations pursuant to this lease. The Lessee shall not substantially change the use of the property without the express written consent of the Lessor. No other party shall be allowed to use the Leased Premises. Other than the aforementioned sublease, the Lessee shall not transfer, assign, or sublease the Leased Premises. Lessee shall not use the premises for any unlawful or hazardous purpose, nor shall Lessee permit others to use the premises for such purposes. At all times, Lessee shall observe and comply with all rules, regulations, laws, and ordinances in effect or which may be enacted during the term of this lease. INSURANCE Lessee shall maintain all necessary liability insurance covering Lessee's acts and omissions; fire and general casualty on Lessee's personal property, and worker's compensation insurance. Lessee shall, prior to entering into this lease, provide Lessor with copies of certificates showing all required coverages are in effect, and Lessor shall be considered in breach of this lease as of the date of any lapse of any insurance coverage required herein. } In addition, Lessee agrees to protect and hold Lessor harmless against all actions, claims and demands of any kind or character whatsoever arising from Lessee's use of the premises, and shall indemnify the City all sums which it may be obliged or adjudged to pay therefor, for all liability that may arise, including attorney fees, within thirty (30) days of demand. The Lessor shall maintain fire and general casualty insurance upon the building structure. PROPERTY CONDITION The Lessee has previously been the tenant of the Leased Premises and in the course of such tenancy has examined and is aware of all aspects of its condition and fitness for the Lessee's intended use. Lessee accepts the Leased Premises in an "as -is" condition_ Lessor has not promised, and Lessee has not requested from Lessor, that any maintenance, alterations, or repairs be undertaken at any time before or during the term of this Lease. The Lessor makes no warranties or representations, either express or implied, regarding the present or future condition of the Leased Premises. Specifically, Lessor makes no warranties or representations regarding the condition of the Leased Premises prior to, at the 12/11/2009 3 { commencement of, or during the term of this lease. The Lessor also makes no representation or warranty regarding the fitness of the Leased Premises for any purpose. Given the Lessee's superior knowledge regarding the condition of the Leased Premises, and the probable demolition of the structures on the site after the Lessee vacates the Leased Premises, the Lessee releases and holds harmless the Lessor for any loss or damage to persons or property of the Lessee or its employees, invitees, or sublessee's occasioned by or resulting from defects in the condition of } the property, including but not limited to defects in the electric wiring, plumbing, gas, water, heating, sewer or other pipes, or radiator bursting, leaking, running, or stoppage or overflow of any boiler, tank, washstand, tub, toilet, or waste pipe in or upon the said premises, nor for any damage occasioned by water, snow, ice or anything being upon or coming through the roof, walls, or windows or doors or other lights, nor for damage arising from acts or neglect of other occupants of the building or of adjacent or contiguous property owners. PROPERTY MAINTENANCE Lessee shall maintain, repair, replace, and keep the Leased Premises in good repair at its own expense. This obligation shall include, but is not limited to, all plumbing, electrical, and HVAC fixtures and facilities, water and gas lines, glass, interior and exterior painting, foundation, roof, walls. The repair, replacement, and maintenance required by the Lessee shall include both structural and non - structural oomponents, fixtures, and the real property surrounding the structures on the Leased Premises. Lessee shall be responsible for maintenance such as refuse removal, snow removal, and yard care services on and around the leased premises, or for the costs for such work. Lessee's responsibilities shall also include sidewalks, driveway aprons, and other similar facilities on the leased premises, or within the street right of way and is otherwise required by Municipal Code or other rule, law, ordinance, or code. Lessor assumes no responsibility whatsoever in this regard. Lessee shall keep exterior of property in dean and presentable condition, promptly removing all trash, debris and other items not necessary to conduct business. Lessor shall not be required to maintain, alter, or repair any part of the Leased Premises, including the real property, surface, or structures thereon, before or during the lease term. Specifically, the Lessee accepts sole responsibility for and holds Lessor harmless for any maintenance, alterations, or repairs of the real property, and all surface and structural components of structures on the Leased Premises. Lessee also holds the Lessor harmless from all damages relating to the condition of the property for which Lessee has accepted sole responsibility, and will indemnify Lessor for all of its costs associated with damages to Lessee and third parties resulting from the property's condition. It is the parties' intent that the Lessee will occupy and maintain the Leased Premises in a condition which satisfies the Lessee's needs for use of the property. However, the Lessee shall be responsible for maintaining the Leased Premises in a condition that does not create a public or private nuisance, and does not violate any common law, or federal, state or local statute, administrative code, or ordinance. 12111/2009 4 Lessee shall hold the Lessor harmless for any enforcement actions, whether formal or informal, by any governmental agency related to the Lessee's use of the Leased Premises, and shall further indemnify Lessor for all costs, fees, penalties, charges, and interest related to such enforcement action and which the Lessor may otherwise be liable as the owner of the Leased Premises. { Notwithstanding responsibilities previously described or set forth, the Lessor may, at its sole option, choose to undertake maintenance, alterations, or repairs it considers necessary for any reason provided the Lessor's actions do not materially interfere with the Lessee's use of the property, and the Lessor provides reasonable written advance notice. LESSOR'S ACCESS TO PROPERTY Lessor shall be permitted to enter on the premises or any part thereof at reasonable hours for the purposes of examining or exhibiting same or making required or elective repairs or alterations pursuant to the terms of this agreement, or to review, undertake, or complete environmental testing work, or any other testing, study, analysis, or preparations relating to the condition of the Leased Premises or its potential use after the expiration or termination of this Lease. Lessor's testing, study, analysis, or preparations shall not materially interfere with the Lessee's use of the Leased Premises. Lessor shall give the Lessee written notice of its intentions to enter the property within an amount of time before such entry which is reasonable under the circumstances. PERSONAL GUARANTY In addition to the other material consideration identified in this agreement, The Lessor's execution of this lease agreement is contingent upon Howard Hoth signing !. a personal guaranty which shall be attached to and fully incorporated into this lease agreement. The continued execution of the personal guaranty is a material term of this lease. Any revocation, or attempted revocation of the personal guaranty will be considered a breach of this lease agreement. MISCELLANEOUS i .. Lessee shall not make any contract for construction, repair, or improvement on, in, of, or to the premises or any part thereof, or for any work to be done or materials to be furnished on or to the premises or any part thereof, without having first obtained prior written permission of Lessor. Lessee shall provide in any such contract that no lien of mechanics or materialmen shall be created or shall arise against the premises. Notwithstanding any other term of this agreement, neither the Lessor nor the Lessee intends to waive, alter, change, or modify any governmental immunity or limitation on liability which is located at Section 893.80, Wisconsin Statutes, or any other statute, law, or code which is applicable to the City of Oshkosh, and the municipal liability limitations therein are adopted by the parties to this lease. This lease and the terms and conditions herein are not intended to benefit any other person or entity other than the Lessor and Lessee. { 12!11/2009 5 This agreement shalt not be modified except upon mutual written agreement and shall not be assigned by Lessee except upon written permission of Lessor, whose consent shall not unreasonably be withheld. By this agreement, the parties do not intend to reinstitute rights and obligations already completed under any prior lease of the Lessee. This agreement shall be binding upon all parties hereto, as well as all heirs, assigns, and successors in interest. In the event a court of competent jurisdictions rules any term of this agreement void or otherwise unenforceable, all remaining terms of this agreement shall remain in fully force and effect. The venue for all disputes related to this agreement shall be Winnebago County Circuit Court or, in the event of any federal claims, the federal court division which include, innebago County within its jurisdiction. LESSE' H& O - - •AL,LLC AlliEd I t December ,' , 2009 oward Hoth, Managing Member December , 2009 (print name) (title) LESSOR: CITY OF OSHKOSH / REDEVELOPMENT AUTHORITY t- December 2009 D mbt •' ;1009 , Y.,10 Mark A. Rohloff, City Manager Tho a Be ter Y 9 And RDA Executive Director Chairman, RDA APPROVED BY: De - • er.20 2009 De • = be0 200 • int m• 4111 Pamela ; ` , a .4 afe-ilel `Ly • . Loren op City Cler City ttomey This Agreement was drafted by: David J. Praska Assistant City Attorney Oshkosh, WI 54903 -1130 12/11/2009 6 ! { UNLIMITED CONTINUING GUARANTY GUARANTY: For value received, and to induce the City of Oshkosh, a municipal corporation, located in Winnebago County, State of Wisconsin ( "CITY ") to lease property, extend credit, or to grant or continue other credit accommodations to H & M Commercial, LLC ( "DEBTOR'"), or DEBTOR'S successors or assigns, the undersigned ( "GUARANTOR ") jointly and severally guarantees payment of all the Obligations defined below. "Obligations:" a) Includes all payments, debts, and damages related to the lease of property commonly known as 1 East 8 Street, Oshkosh, Wisconsin; and, b) Includes but are not limited to rent, utilities, taxes, assessments, maintenance costs, structural costs, damages, as well as loans, drafts, overdrafts, checks, notes, and all other debts and liabilities of every kind and description such as interest, penalties, charges, relating to or arising out of the lease of property commonly known as 1 East 8 Street, Oshkosh; and, c) Are those incurred by the DEBTOR, and any assignee or successor in interest of DEBTOR; and, d) Are incurred before the signing of this agreement, contemporaneously, and in the future; and, e) Remain in effect regardless of the consent or endorsement given by the CITY to any assignment or transfer by the DEBTOR, and will only cease upon the CITY'S execution of a specific written release of this guaranty; and, f) Include any payment(s) made to CITY or another by or on behalf of the DEBTOR, its assigns or successors in interest, which are subsequently recovered from CITY by a trustee, receiver, creditor or other party pursuant to applicable federal and state law; and, g) Include all costs, expenses and attomey's fees incurred by CITY related to its enforcement or defense, and /or collection of amounts due, of the lease terms of the property at 1 East 8 Street; and, WAIVER: GUARANTOR expressly waives: (a) notice of the acceptance of this Guaranty, the creation of any present or future Obligation, default under any Obligation, proceedings to collect from any DEBTOR or anyone else; (b) all diligence of collection and presentment, demand notice and protest; (c) any right to disclosures from CITY regarding the financial condition of any DEBTOR, or any successor or assignee of DEBTOR of the Obligations or the enforceability of the Obligations; and, (d) all other legal and equitable surety defenses. CONSENT: GUARANTOR expressly consents to and waives notice of the following. CITY may from time to time before or after revocation of this Guaranty, without notice to GUARANTOR and without affecting the liability of GUARANTOR: (a) elect if or when to enforce any property lease liabilities or to proceed against any DEBTOR, or successor or assigns of DEBTOR; (b) renew or extend the time of payment; (c) determine the allocation and application of payments and credits and accept partial payments; and, (d) settle or compromise the amount due or owing from any DEBTOR, or successor or assign of DEBTOR, and which settlement or compromise shall not affect GUARANTOR's liability for the full amount of the unpaid obligations. This 11/18/2009 1 Guaranty will be interpreted and enforced according to Wisconsin law. Any legal proceeding relating to this Guaranty will occur in Winnebago County, Wisconsin, Circuit Court or, if applicable, the division of Federal Court which includes Winnebago County. A determination by a court of competent jurisdiction that any provision in this agreement is invalid shall not affect the remaining provisions in this agreement. PERSONS BOUND: This Guaranty benefits CITY, its successors and assigns, and binds GUARANTOR, and GUARANTOR's respective heirs, personal representatives, successors and assigns. This Guaranty shall continue in full force and effect notwithstanding change in any structure or status of DEBTOR, whether by merger, consolidation, reorganization or otherwise. This Guaranty survives the assignment or transfer by DEBTOR of any interest in the property at 1 East 8 Street, regardless of any approval or consent by CITY of such assignment or transfer. ENTIRE AGREEMENT: This Guaranty is intended by GUARANTOR and CITY as a final expression of this Guaranty and as a complete and exclusive statement of its terms, there being no conditions to the full effectiveness of this Guaranty. This Guaranty may not be supplemented or modified except in writing. REPRESENTATIONS: } GUARANTOR accepts and agrees with his obligation to monitor and separately seek the financial or business information GUARANTOR deems necessary from DEBTOR, or successor or assigns of DEBTOR, before and after signing this agreement, regarding the Obligations described in this agreement. GUARANTOR accepts and agrees that any change in circumstances of the lease or lease circumstances between CITY and DEBTOR, or the successors or assigns of DEBTOR, shall not affect this Guaranty, regardless of whether or not the change is considered material. REVOCATION: This is a continuing guaranty and shall remain in full force and effect until CITY physically receives written notice of its revocation signed by the GUARANTOR, or receives actual notice of the death of GUARANTOR. Upon revocation by written notice or actual notice of death, this Guaranty shall continue in full force and effect as to all Obligations incurred before actual receipt of the revocation. } [INTENTIONALLY BLANK] 11/18/2009 2