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HomeMy WebLinkAboutTermination of Lease/RDA/90 Riverway 0102030000 111111111 1111 111 111 11 Onlgtr,,�, C+-l-.� derK- TERMINATION OF 8 0 0 4 5 4 6 egPy • Co nwrv, ��`/ Lease/Purchase Agreement Tx:4002724 copy- G+#�f MN. 1594524 312412 Document Number Document Title REGISTER'S OFFICE WINNEBAGO COUNTY, WI RECORDED ON This TERMINATION OF LEASE/PURCHASE 02/t4/2017 120,6 PM AGREEMENT (the "Termination Agreement"), is entered into by and between the City of Oshkosh, a Wisconsin ]ULIE PAGEL municipality, and the Redevelopment Authority of the City REGISTER OF DEEDS of Oshkosh, with their principal offices located at 215 Church RECORDING FEE 30.00 Ave., P.O. Box 1130, Oshkosh, Wisconsin 54903-1130, (collectively "Lessor") and 90 Riverway, LLC, 90 Riverway Drive, Oshkosh, Wisconsin 54901 ("Lessee"): Recording Area The Lessor and Lessee are parties to a Lease/Purchase Name and Re Address City turn Attorney's Office Agreement dated December 21, 2009 (Lease/Purchase 215 Church Ave. P.O. Box 1130 Agreement) regarding the property known as 90 Riverway Oshkosh, WI 54903-1130 Drive, Oshkosh, Wisconsin (Leased Premises). A copy of this Lease/Purchase Agreement is attached hereto as Exhibit A. 90102030000 Prnnertv Identification NIImher The Lease/Purchase Agreement began on December 21, 2009, and was scheduled to terminate on the date the Lessor conveyed the property to the property's developer, Oshkosh River Development, LLC, or upon notice of termination by the Lessee, whichever came first. The Lessor will now convey the Leased Premises to Oshkosh River Development, LLC, and the parties to the Lease/Purchase Agreement wish to terminate that agreement. The Lessor understands that Lessee may have a separate understanding and/or agreement related to the Leased Premises. However, Lessee acknowledges that the Lessor is not part of, or involved with, any agreement or understanding Lessee has with third parties, including Oshkosh River Development, LLC. THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. The parties agree that the Lease/Purchase Agreement shall terminate on February 8, 2012 (Termination Date), which is the date the Leased Premises are conveyed from Lessor to Oshkosh River Development, LLC. 2. Lessee shall quit the Leased Premises on or before the Termination Date and shall surrender and return the Leased Premises to the Lessor clean and in good condition and repair, reasonable wear and tear excepted. 3. Lessee shall have no claim of ownership or interest, either in whole or in part, in any part of the Leased Premises, including without limitation, the real property, structures, fixtures, personal property, or any improvement. 4. Lessor and Lessee mutually release, discharge, and waive any claims, known or unknown, against the other arising out of or connected to the Leased Premises and the Lease/Purchase Agreement, except that the Lessor shall not waive any claims for 1 5 indemnification, contribution or apportionment of claims or liability brought against Lessor by any Third Party resulting from Lessee's possession, use, and/or improvement of the Leased Premises, nor shall Lessor waive any claims for damages resulting from any latent or hidden defect or hazardous materials contamination caused by Lessee or resulting from Lessee's possession and use the Leased Premises. This release is binding upon each party's successors, assigns, officers, elected officials, employees, and agents. 5. This Termination Agreement shall be for the benefit of, and shall be binding upon, the parties hereto and their respective heirs, executors, administrators, and assigns. 6. There shall be no lease termination payment owed by either party to this Termination Agreement. 7. The Lessee affirms that at all times it was in compliance with the terms of the Lease/Purchase Agreement. 8. Both parties believe that all notice requirements related to the termination of the Lease/Purchase Agreement have been followed, and each party agrees to waive any claims based upon notice that is otherwise required in the Lease/Purchase Agreement that may be inconsistent with the terms of this Termination Agreement. 9. Lessee reaffirms all obligations made in the Lease/Purchase Agreement, including without limitation, its full and complete responsibility for any development activities, fixtures, or improvements to the Leased Premises through the date this Termination Agreement is executed. Lessee's obligations shall survive the termination of the Lease/Purchase Agreement. 10. Lessee shall not be entitled to and hereby waives payment, reimbursement, credit, or damages against Lessor for the value of any development activity, fixtures, improvement, or use to or of the Leased Premises upon the execution of this Termination Agreement. 11. Lessee shall hold the Lessor harmless from any accident or incident involving Lessee, its employees or agents, and from any dispute between Lessee and Oshkosh River Development, LLC or any 3rd party resulting from any action of Lessee related to or occurring during the term of this lease. 12. References to, or reaffirmations of, terms of the Lease/Purchase Agreement in this Termination Agreement are for emphasis only and not intended to minimize the importance of or to exclude any other term or obligation identified in the Lease/Purchase Agreement. [SIGNATURE PAGE FOLLOWS] 2 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. LESSEE: LESSOR: •0 Rive . , L C ' City of Oshkosh Matthe J. sore, Managing Member 9 g Mark A. Rohloff, City Manager r Pamela R. Ubrig, City\'Cile4" City of Oshkosh edevelopment Authority Thomas Belter, Chairman //Al Allen Davis, Executive Director Personally appeared before me this 8th day of February 2012 the above named Thomas Belter, Chairman, and Allen Davis, Executive Director, of the Redeveloptment Authority, and Mark A. Rohloff, City Manager and Pamela Ubrig, City Clerk, of the City of Oshkosh, to me known to be the persons who executed the foregoing agreement. c,ILQ Notary Pub t o - onsin Winnebago County My Commission Expires `. 'f This document drafted by: David J.Praska Assistant City Attorney Oshkosh,Wisconsin 54903 3 Lease/Purchase Agreement Document Number Document Title This LEASE/PURCHASE AGREEMENT(the"Agreement" or "Lease"), made and entered into this 21st day of December 2009, is by and between the City of Oshkosh, a Wisconsin municipality, and the 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 90Riverway, LLC, 2824 Montclair Place, Oshkosh, Wisconsin 54904 ("Lessee"): Recording Area Name and Return Address City Attorney's Office WITNESSETH: 215 Church Ave. P.O. Box 1130 Oshkosh,WI 54903-1130 WHEREAS, Lessor is the owner of certain real property identified as part of the Marion Road/Pearl Avenue Property Identification Number 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— North. A Certified Survey Map of Project— North, 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. All terms, liabilities, and obligations of the Agreement, as Amended and Restated, are incorporated by reference into this Lease. 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. To the extent that certain terms of the Agreement, as Amended and Restated, may pertain to the overall development of the Project, or to parcels other than the Leased Premises within the Project, Lessee affirmatively states that it has discussed and reached an agreement with Oshkosh River Development, LLC regarding the Project and its development requirements. Lessee also acknowledges and agrees that it is assuming joint and several liabilities and responsibilities for the development of the Leased Premises as required by the Agreement, as Amended and Restated; and, WHEREAS, the Agreement, as Amended and Restated, provided for the Oshkosh River Development, LLC, 230 Ohio Street, Oshkosh, Wisconsin 54902,to purchase and develop the property comprising the Project. The Agreement, as Amended and Restated, also included requirements related to environmental remediation on the property where the Project is to occur; and, Draft:November 2, 2009 1 • Exhibit WHEREAS, the environmental remediation being undertaken by the Lessor is not yet complete and the Oshkosh River Development, LLC wishes to have access, or to allow access by Lessee, to certain property within the Project area so that preliminary construction activities for the Project may commence on the Leased Premises prior to their purchase of this property; and, WHEREAS, Lessee acknowledges that Oshkosh River Development, LLC has entered into a separate agreement with it relating to the development of the Leased Premises in conformance with the Agreement, as Amended and Restated, and any other approved requirement for the Project by the Lessor; and, WHEREAS, upon issuance to the City of Oshkosh of a Certificate of Completion for environmental remediation from the State of Wisconsin Department of Natural Resources, Oshkosh River Development, LLC shall purchase all of Lessor's right, title and interest in and to the Leased Premises as described above including: (1)the land, and (2) any and all improvements thereon, whether made by Lessee before or after conveyance of the Property. The parties anticipate that upon the aforementioned sale and purchase, Lessee will purchase the Leased Premises from Oshkosh River Development, LLC pursuant to a separate agreement between those parties; and WHEREAS, it is in the interests of the Lessor, Lessee, and Oshkosh River Development, LLC„ that the Lessee be allowed to commence reasonable development tasks in advance of the date in which Lessee will purchase the Leased Premises according to the terms of the Agreement, as Amended and Revised. NOW, THEREFORE, the parties agree as follows: 1. In exchange for 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 date in which Oshkosh River Development, LLC closes on the property and acquires full ownership interest in the Leased Premises. Lessee acknowledges that it's separate agreement with Oshkosh River Development, LLC provides sufficient notice and assurance regarding the termination date of this agreement, and that no notice of termination is required to be given by Lessor. 3. Lessee may terminate this Lease with or without cause by giving sixty (60) days advanced written notice of such termination to Lessor. 4. There shall be no lease payments due from Lessee to Lessor during the term of this lease. 5. The Lessee shall be allowed to use the Leased Premises only to begin the development of the Project or to otherwise make improvements for other purposes related to the terms of this lease and as outlined in the Agreement, as Amended and Revised. No agreements by Lessee with others which purport to allow the use of the Draft: November 2, 2009 2 Exhibit ' � ,.r1 property in a manner contrary to Lessor's Agreement with Oshkosh River Development, LLC, or any other requirement approved by Lessor, shall be recognized or enforceable against Lessor or in rem against the Leased Premises. 6. During the term of this lease, the Lessor shall be allowed unrestricted 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 any 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. 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 Oshkosh River Development, LLC purchases this property. As a result of the assumption of risk and responsibility, Lessee shall not be entitled to and hereby waives payment, reimbursement, credit, or damages as against Lessor for the value of any development activity; fixture, or improvement to the property in the event Lessor terminates this lease for any reason, or in the event Oshkosh River Development, LLC does not purchase the property. The only exception to the previous term is in the event of willful and malicious actions on the part of the Lessor. Lessee's release and waiver of rights in this paragraph does not affect its rights to pursue claims against any party other than Lessor. 9. 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 3"d party resulting from any action of Lessee occurring during the term of this lease. 10. Any breach or default of this lease, or of the Agreement, as Amended and Restated, by either party shall be considered a breach of this lease. All such actions shall be addressed pursuant to the terms of the Lessor's Agreement, as Amended and Restated, with Oshkosh River Development, LLC. 11. All terms of the Agreement, as Amended and Restated, are incorporated into this Lease, including but not limited to representations and warranties. 12. The sole purpose of this Lease is to allow the Lessee to have access to the Leased Premises before Oshkosh River Development, LLC actually purchases it so that development consistent with the terms of the Agreement, as Amended and Restated, may be commenced. 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 commencing development prior to taking ownership of the property; and, Draft: November 2, 2009 3 Exhibit _1:::\,-1--oh/ . 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. LESSEE. LESSOR: 90Ri e /ay L ' City of Oshkosh atth-w Moore, Managing Member Mar A. Rohloff, City Manager _ _ .>.7rw f erk , 20, i 0 ,• i ti This document drafted by: David J.Praska Assistant City Attorney Oshkosh,Wisconsin 54903 ,APPROVD t _ �.. ,� ,, ,■ \ I CITY ATTORNEY �• OSH � KOSH,WISCONSIN Draft: November 2, 2009 4 Exhibit 'P C I / 4 4,, 'It lk4"4:-/ ,,NN,, / i 1 1 / 1 v,' , #,/ /� < e 1`,\,, fd4 / I,/ 1 . off/ `.%4,0 „ � •. !,ft'A �., f/' f /4,1 . ' / '_P KY. EiN.I,' 1 / a°/$ /4.145 ',,,,A,,:" Q xh I ,dir�/ -\: f Y /.J..C' ., ' ! 1 / . / 11R '1'Ja9�xg ,' rte. 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