HomeMy WebLinkAboutLease Agreement/Marion Road Apartments LLC •
CITY OF OSHKOSH
LEGAL DEPARTMENT
215 CHURCH AVENUE, P.O. BOX 1130, OSHKOSH, WI 54903-1130
PHONE: (920) 236-5115 FAX (920)236-5106
LETTER OF TRANSMITTAL
To: Marion Road Apartments LLC Date: February 12, 2014
230 Ohio Street, Suite 200 Project: N/A
Oshkosh, WI 54902 From: Carol Marchant, Adm. Assistant
Re: Lease Agreement
Attn: Andrew Dumke Marion Road Apartments
Please find: ® Attached ❑ Under Separate Cover
El Copy of Letter ® Agreement ❑ Amendment ❑ Report ❑ Agenda
❑ Meeting Notes ❑ Photos ❑ Mylars ❑ Change Order ❑ Plans
❑ Specifications ❑ Estimates El Diskette El Zip Disk ❑ Other
Quantity Description
1 Copy of the Marion Road Apartments Lease Agreement
These are being transmitted as indicated below:
❑ For Approval ® For Your Use ❑ As Requested ❑ For Review& Comment
Remarks:
cc: City Clerk (original)
Community Development (copy)
City Attorney (copy)
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Lease Agreement Tx:4098627
1657712
Document Number Document Title
REGISTER`S OFFICE
WINNEBAGO COUNTY, WI
RECORDED ON
02/10/2014 09:10 AM
This LEASE AGREEMENT (the "Lease"), made and entered JULIE PAGEL
into this J9 day of December, 2013, is by and between the City of REGISTER OF DEEDS
Oshkosh, (CITY)a Wisconsin municipality,and the Redevelopment
Authority of the City of Oshkosh,(RDA),with their principal offices RECORDING ` 30,00
located at 215 Church Ave., P.O. Box 1130, Oshkosh, Wisconsin
54903-1130, (collectively "Lessor") and Marion Road Apartments,
LLC, (MRA) 230 Ohio Street, Suite 200, Oshkosh, Wisconsin 54902
("Lessee"): Recording Area
Name and Return Address
RECITALS City Attorney's Office
215 Church Ave. P.O. Box 1130
1. RDA owns real property within the Marion Road/Pearl Avenue ` Oshkosh,WI 54903-1130
Redevelopment Phase II Area(Project), in the City of Oshkosh, 0102220000
Winnebago County, Wisconsin. .-.•
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2. The Project includes real property to be redeveloped both North of Marion Road ("Project—North") and
South of Marion Road("Project—South"). The property included in this Lease(Leased Premises)is within
Project—South,and in particular is a part of Lot 2 of Certified Survey Map 6408,which was recorded with
the Winnebago County Register of Deeds as Document Number 1520619 on October 5, 2009. A copy of
CSM 6408 is attached as Exhibit A and fully incorporated into this Lease.
3. RDA has leased its real property within the Project area to the CITY for the purpose of facilitating its
redevelopment.
4. Lessor and Lessee have entered into a Development Agreement("Agreement")dated December 19,2013,
and recorded with the Winnebago County Register of Deeds as Document Number /456 7 9.2 on January
22 ,2014,for the purpose of constructing a residential development on the Leased Premises.A copy of
the Agreement is not attached hereto but Lessee acknowledges that it read and signed the Agreement,retains
a copy of the Agreement, is familiar with it and agrees to be bound by its terms as it may pertain to the
development of the Leased Premises. A copy of the development footprint is attached at Exhibit B and
incorporated herein.
5. Environmental remediation is required to be performed on the Leased Premises and certain funding sources
for this environmental remediation require that Lessor continue to retain ownership of the Leased Premises
until remediation is completed.
6. It is in both parties' interests that Lessee begin construction of its apartment building and related
improvements on the Leased Premises prior to the completion of the environmental remediation, and the
purpose of this Lease is to allow this commencement of construction.
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7. ' Lot 2 of CSM 6408 will be further divided through a new CSM after the completion of the construction
project as determined by the Lessor and the completion of the environmental remediation as determined by
the appropriate state or federal agency. The development subject to the Agreement and to this Lease will be
located within Lot 2 of CSM 6408. Lot 2 of CSM 6408 will again be divided prior to Lessor's conveyance
of the Leased Premises, with a draft of the potential future CSM attached hereto as Exhibit C. The actual
location (Leased Premises) of this development therefore can only be described by a metes and bounds
description which follows. It is expected that Lot 2 of the potential new CSM,Exhibit C,will be comprised
of the metes and bounds description of the Leased Premises.
Commencing at the Northwest corner of Lot 2 CSM 6408, being a point on the
South right-of-way of Marion Road; thence S65°46'22"E, 258.54 feet along the
North line of said Lot 2 and the South right-of-way Marion Road to the Point
of Beginning; thence continuing along the North line of said Lot 2 and the
South right-of-way of Marion Road S65°46'22"E, 237.01 feet to an angle point;
thence continuing along the North line of said Lot 2 and the South right-of-way
of Marion Road S65°54'10"E, 91.57 feet; thence S17°49'37"E, 97.21 feet;
thence S24°13'38"W, 188.89 feet to a point on the South line of said Lot 2;
thence along the South line of said Lot 2 N65°43'26"W, 275.83 feet to an
angle point; thence continuing along the South line of said Lot 2 N62°10'26"W,
118.09 feet; thence N24°13'36"E, 253.21 feet to the Point of Beginning.
Said parcel containing 99,872 square feet or 2.293 acres more or less.
8. The development of the Leased Premises described in the Agreement and in this Lease will be financed
through the Wisconsin Housing and Economic Development Authority(Lender). The Lender may request
and 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. However,the assignment of any Lessee interest in the Leased Premises
must be related to the development and pursuant to the terms of the Agreement, must be contingent with
such transfer becoming effective in the event of a default by Lessee, and must be more fully described in
separate documents reasonably agreeable to the Lessor. All assignments, transfers, conveyances of the
Leased Premises will be subject to continuing obligations under the Agreement.
AGREEMENT
9. All Recitals are incorporated into this Agreement.
10. 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, the property identified and described in this Lease (Leased Premises) on the terms and conditions
expressly set forth and referenced herein.
11. 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 a lease assignment, closes on its purchase of and
acquires full ownership interest in the Leased Premises; or, (c) the Agreement is terminated.
12. This Lease shall terminate without notice upon the insolvency of Lessee,upon Lessee's seeking bankruptcy
protection, or upon any Lessee creditor other than Lender obtaining any interest in Lessee or Lessee's
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property. Lessor may elect to terminate this lease based upon a material default of this Lease which remains
uncured after providing 30 days notice of such default.
13. Pursuant to the terms of the Agreement, Lessee is obligated to take certain remediation actions at the
direction of the Wisconsin Department of Natural Resources and others relating to existing hazardous
substances on the Leased Premises (Remediation). Lessee shall perform the Remediation pursuant to the
terms of the Agreement, the terms of any grants utilized for this purpose, and the terms required by the
Wisconsin Department of Natural Resources (WDNR). Lessee must take all necessary actions which will
result in a Certificate of Completion from the WDNR for the Leased Premises. Remediation of the site
cannot be completed until construction of the improvements on the Leased Premises is completed, and the
Leased Premises cannot be conveyed by Lessor until the Remediation is complete and all applicable grants
used for Remediation are closed out. 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 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.
14. There shall be no Lease payments due from Lessee to Lessor other than the payment identified in paragraph
number 10,above,except as may be required by this Lease or the Agreement during the term of this Lease.
15. The Lessee shall be allowed to construct and operate an apartment building and related improvements on the
Leased Premises as approved by Lessor pursuant to the terms of the Agreement and consistent with other
government rules and regulations. 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, shall be allowed, or
enforceable, against Lessor or in rem against the Leased Premises.
16. During the term of this Lease,the Lessor shall be allowed reasonable access to the Leased Premises for any
purpose related to any municipal or police power function, to meet its obligations under this Lease or the
Agreement with Marion Road Apartments, 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 allowed use of the
property.
17. During the term of this Lease, Lessee shall be deemed the owner of all improvements constructed on the
Leased Premises by Lessee, subject to any legal rights of third—parties. Lessor may take actions to gain
ownership of improvements upon the abandonment of the development and related interests by Lessee,
assignees, or others by providing known interested parties notice and a right to cure default or to affirm
interest in the Leased Premises.
18. 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.
19. 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.
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November 7, 2013
• 20. Lessee acknowledges that it assumes the responsibility of ensuring that its investments in or on the Leased
Premises are protected through separate agreements with its Lenders or other measures allowed by law.
21. Lessee shall have all necessary insurance with sufficient limits which will cover its employees,actions and
property on the Leased Premises. Lessee shall hold the Lessor harmless from any accident or incident
involving Lessee, its employees or agents, or any dispute with Marion Road Apartments, LLC or any 3rd
party resulting from any action of Lessee, its agents or assigns, occurring during the term of this Lease.
22. 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.
23. Lessee shall not allow any encumbrance to be filed on or against the Leased Premises,including mortgages,
easements, or similar restrictions.
24. All terms of the Agreement pertaining to 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 allowed by law.
25. 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. 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,
SIGNATURE PAGE TO FOLLOW
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November 7, 2013
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
LESSEE: LESSOR:
Marion Road Apartments, LLC City of Oshkosh
By
Andrew J. Dumke, Managing Member Mar A. Rohloff, City Marta er (b)--1n
B Y• ' •
Pamela R. Ubrig, City Clerk
Osh17Ieve nt Authority
Thomas Belter, Chair
//)1 � g
Allen Davis, Executive Director
This document drafted by:
David J.Praska
Assistant City Attorney
Oshkosh,Wisconsin 54903
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November 7, 2013