HomeMy WebLinkAbout33373 / 85-10•a ' _
May 16, 1985 //10 RESOLUTION
(CARRIED IOST LAID OVER WITHDRAWN )
PURPOSE: AMEND DEVELOPER A6REEMENT - OSHKOSH CENTRE PROJECT
INITIATED BY; CITY ADMINISTRATION
WHEREAS, the City of Oshkosh and the Oshkosh Center Hotel Venture
entered into a Developer Agreement entitled Oshkosh Center Hotel Development
Agreement on the 27th day of December, 1984, and
WHEREAS, subsequent to said agreement, in negotiations with HUD and
the Oshkosh Cent¢r Hotel Venture, parts of said agreement had to be changed
and/or modified,
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper City officials are hereby authorized and directed to
enter into the attached Oshkosh Center Hotel Amended and Restated Development
Agreement to provide for the construction of the Centre project, including
hotel, parking structure and convention center in the CiYy of Oshkosh.
SUBHITTED BY
APPROYED
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' RESOLUTION # 10
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OSHKOSH CENTRE HOTEL
AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT
("Agreement"), made this day of May, 1985, by and between
the CITY OF OSHKOSH, WISCONSI[J, a municipal corporation, whose
address is City Hall, 215 Church Avenue, Oshkosh, Wisconsin,
54901 (hereinafter referred to as the "City") and Oshkosh Centre
Hotel Venture (hereinafter ref=rred to as "OCHV"), a joint
venture comprised of OHV Associates, an Illinois limited
partnership, wiose address is 2 D:orth Ri:•�t�tde Plaza, Suite fi00,
Chicago, Illinois, 60606, and A-K Company,. a Wisconsin sole
proprietorship, whose address is 41 West Sth Avenue, Oshkosh,
Wisconsin, 54901.
W I T N E S S E T H:
WHEREAS, City is in the process of redeveloping the downtown
central business district acea of the City of Oshkosh by causing
the development of an approximate 182-room, first class hotel
located on the west side of the first block of North Main Street
in downtown Oshkosh, and by constructing in the same block a
parking garage sufficient to accomodate not less than 157 cars;
and
WHEREAS, in connection with the redevelopment of this area,
City has applied for and be�en granted an Urban Development Action
Grant ("UDAG") by the United States Department of Housing and
Urban Development ("HUD") in the amount of Nine Hundred Thousand
($900,000), to be utilized to assist with the financing of the
redevelopment as stated above, and the development of the said
Hotel, a hotel of approximately 182 rooms, to be managed by -
Radisson Hotel Corporation, (hereinafter "Radisson") or, to be
known as some other hotel and managed by some other hotel
cc,rporation as u�HV may from time to time decide; and
WHEREAS, in connection with the development of the said
Hotel, the City has acquired the various parcels of land
necessary for the'construction of said Hotel and a certain �
leasehold interest,for an adjacent parking qarage, cleared the
site as necessary,•and shall lease (Ground Lease) the parcel
shown as Hotel Site on Exhibit A, attached hereto and
incorporated herein by reference to OCHV, a joint venture. The
Ground Lease terms and conditions are as aqreed upon by said
parties and are further contained in Gxhibit B attached hereto
and incorporated herein by reference. Clearing the site means
to demolish all buildings to ground level and to remove debris.
It does not include r=moving sub-surface utility lines, footings,
foundations, etc.; and
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RE'SOLUTION # 10
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WHEREAS, City has agreed to loan Nine Hundred Thousand
Doilars ($900,000) of UDAG Funds to OCHV to be used for the
construction of a parking structure as more pacticularly
described herein, such loan to be secured by a second mortgaqe on
the Hotel and Parking Structure; and
WHEREAS, OCHV �aill develop and operate the Hotel under a
long-term hotel management contract with Radisson or some other
hotel management corporation as OCHV may from time to time
decide; and
WHEREAS, in connection with the construction of the Notel,
OCHV has agreed to construct a parking structure as moce
particularly described hereinafter; and �
WHEREAS, City and OCHV agreed upon certain other matters in
connection with the construction and operation of the Hotel, as s�
more particularly set forth in that certain Development Agreement
dated December 27, 1984 by and between the City and OCHV (the
"Development Agreement") ; and
WHEREAS, City and OCHV desire to amend and restate the - j
Development Agreement in its entirety, as more particularly set
forth herein;
NOW, THEREFORE, for qood and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
.
ARTICLE I
CLOSING
1.01 (a) OCHV shall procure and close equity financing Eor the
Hotel not later than April 1, 1985.
(b} At the r_losinq and prior to disbursement of any UDAG
funds, all of the following shall be accomplished with
necessary certificates, exhibits and attachments
establishing the existence of each:
(i) City and OCHV shail have executed this
Agreement;
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(ii) City shall deliver to OCHV the opinion of the City
Attorney of City that 1) the Site is properly
zoned for the construction and operation of the
Hotel and Parking Structure; 2) that there are no
local government land use, environmental, or other
restrictions, �elating to the Site which would
substantially inhibit or interfere with the
construction and/or operation of the Hotel and the
Parking Structure; 3) that all local government
approvals and reviews required by law to be
obtained for the development of the Rotel and
Farking Structure have been obtained; and 4) all
utilities are available to the site as required
hereunder. '
(iii) OCHV shall have committed or caused to be
committed to the project in a form acceptable to
HUD and City the principal amount of not less than
Six Million, One Hundred Sixty Thousand Five
Hundred Dollars ($6,160,500)
(iv) HUD shall have authorized a grant of Nine Hundred
Thousand Dollars ($900,000) of funds and approved
such legally binding commitments required by such
grant leading to issuance of letter of credit in
accordance with its procedures.
(v) OCHV shall ha've executed the UDAG Second Mortgage
with the City in the amount of Nine Hundred
Thousand Dollars ($900,000).
(vi) City shall have issued Industrial Development
Revenue eonds for the Hotel Pcoject in the amount
of Six Million Dollars ($6,000,000).
(vii) The Radisson Management Agreement shall have been
reviewed by City and executed by Radisson and
OCHV.
(viii) All state and city liquor, food service, hotel,
ente'rtainment and other licenses necessary for the
operation of the Hotel shall have been issued to
OCHV or where issuance is not permitted at the
date of Closing, subsequent issuance shall have
been assured by City to OCHV.
(ix) OCHV shall assure that all public utilities
will be available on a timely basis for the Site
development in the required capacities.
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RESOLVPION # 10
(x) City and OCHV shall have adopted a Parking Agreement
for the operation of the Parking Structure.
(xi) City shall vacate any cights of way and any City
owned utility easements on the Hotel Site which
are no longer required by the City.
(xii) The plans and specifications for the Hotel and
Parking Structure shall have been fully approved by
all parties and a building permit for the Hotel
and Parking Structure shall have been issued.
(xiii) City shall have obligated itself in conjunction
herewith to the construction of at least 38,000
square foot convention center as provided for in
Exhibit e of the UDAG Agreement, and shall begin
construction prior to December 31, 1984 and shall
complete construction of same and ready for operation
no later than October 1, 1986.
(xiv) City and Radisson shall have entered into a
Concession Agreement, which Agreement shall be
annexed hereto and made a part hereof as Exhibit _
D.
(xv) City shall provide OCHV with marketable and
unencumbered ALTA Title Insurance for OCHV's
ownership inte[est in the site.
ARTICLE II
HOTEL AND PARKZNG STRUCTURE DEVELOPMENT
2.01 OCHV shall design, construct, and operate, or cause to be
designed, constructed and operated, the Hotel and Parking
Structure, in accordance with the provisions of Exhibit C of
the UDAG Grant Agreement as amended. City shall operate the
Parking Structure in accordance with the provisions of this
Agreement and,the Parking Agreement.
2.02 Prior to closing, City shall acquire the various parcels of
land located on the west side of the first block of North
Main Street in downtown Oshkosh, Wisconsin, said parcels to
be acquired being shown and designated on Exhibit A
(attached hereto and incorporated herein by reference) for
the construction of tha Hotel. City shall acquire a
leasehold interest in the parcel as sho�vn and designated on
Exhibit C(attached hereto and incorporated herein by
reference) for the construction of the Parking Structure.
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RESOLUTION $ 10
At closing, City shall lease the parcel designated as Hotel
Site on Exhibit A to OCHV for the sum, and upon the terms
and conditions as agreed upon by the City and OCHV and more
particularly contained in Exhibit B(attached hereto and
incorporated herein by reference). Thirty days prior to
closing, City shall deliver a title insurance commitment to
OCHV in the amount of One Million Dollacs ($1,000,000)
showing title as called for in this Agreement. City shall be
responsible for clearing the Hotel Site to the extent
hereinbefore indicated. City shall undertake certain public
improvements, and design, r.onstruct and operate a Convention
Center of approximately 38,000 square feet in accordance
with the provisions of Exhibit e of the UDAG Grant Agreement
as amended.�
2.03 (a) OCHV shall commence the construction of the Hotel on or
before thirty (30) days after Closing.
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(b) OCHV shall diligently prosecute such construction on
the Hotel of approximately 182 rooms and Parking
Structure to accomodate not less than 157 cars, equip
and furnish the Hotel to complete construction of the
Hotel and Parking Structure, and to open the Hotel for
business on or before November 1, 1986. The plans and
specifications for the Hotel and Parking Structure
shall be reviewed by and approved (which approval shall
not be unreasonably withheld) by City prior to
commencement of construction. Neither party, by approvinq the plans
the other, assumes any liability with respect to said
plans.
3.01 UDAG Loan.
agrees to
secured by
Structure
which loan
upon terms
ARTICLE III
UDAG SECOND MORTGAGE, UTILITIES
LICENSES, OTHER AGREEMENTS
City hereby agrees to loan, and OCHV hereby
borrow Nine Hundred thousand Dollars ($900,000)
a second mortgage on the Hotel and Parking
subordinated to the First Mortgage on the Hotel,
shall be disbursed to fund the Parking Structure
and conditions consistent with the following:
(a) OCHV has certified to City that it has on hand or
irrevocably committed to the Hotel and Parking
Structure, sufficient funds to complete the activities
specified herein and has issued its guarantee of .
completion as provided in Section 3.01(j).
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(b) OCHV has furnished to City an ALTA policy r.ommitment for
insuring that City will be the holder of a legally
enforceable second mortgage lien on the Hotel Project as
provided for herein.
(c) OCHV has furnished to City Builders Risk and Fire
Insurance policies duly endorsed to indicate City and
the insured mortgagee, in amounts sutisfactory to City
'and HUD.
(d) Disbursement of the UDAG Loan shall be made on the
basis of $1.00 cf UDAG Loan funds for not less than
$2.80 of private funds expended for the Hotel and
Parking Structure by OCHV. -
(e) Draw requests shall be paid out of UDAG Funds by City
on the basis of vourhers submitted by OCHV and
certified to by a certifying official as shall be
acceptable to City. All submissions of cont�acts for
construction work shall be on AIA Forms 702 and 703 or
their equivalent.
(f) Interest only shall be charged on the UDAG Loan from
the date of the first disbursement of said funds, at
the rate of 11$ simple interest per annum on the
outstanding principal amount of the loan. Such
payments of interest only shall be paid semi-annually
on the initial principal, the first such payment being
made upon the date of the City's certification of
completion of Recipient Activities as defined in
paragraph 4.03 herein.
(g) OCHV shall have the right to prepay the entire UDAG
principal at any time without premium or penalty, and
in the event of s�ch prep�yment, no future payment of
principal or interest including contingent interest as
defined in the UDAG grant shall be due or owing to the
City.
(h) In addition to the above, during such time as the UDAG
loan shail remain outstanding, OCHV shall pay annually
to City as "contingent interest," fifteen percent (158')
of the Net Annual Cash Flow from operation of the Hotel
as defined below. "Net Annual Cash Flow" for any given
calendar yeac means Gross Operating Revenues for that
year reduced by:
(1) Reasonable operating expenses deductible for
federal income tax purposes, but not including
depreciation or capital improvement uses, from
Gross Operating Revenues.
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RESOLLfPION #10
' (2) Base management fee for Hotel Operator defined as
follows:
(a) the greater of 3.58 of gross operating income
(revenues) or a flat fee of $150,000; and
(b) a base asset management of $25,000 per year;
and
(c) 5$ of Available Cash, as defined in the ilotel
Management Agreement, in the event that
Available Cash in a fiscal year is between
$100,000 and $200,000, or 10$ of Availabl=
Cash in the event that•Available Cash in a
fiscal year is in excess of S200,000
provided, however, that the sum of a), b) and c)
above shall not exceed 4� of gross operating
revenues as required in Exhibit E, Paragraph
IV(7)(i) of the UDAG Agreement
(3) Real estate taxes and insurance
(4) Furniture, fixtures and equipment reserve which
shall not exceed 1.7$ of total revenues
(5) Debt service on first mortgage
,
(6) Debt service on second mortgage
(7) Incentive management fee defined as follows:
(a) 10� of Available Cash in each fiscal year (as
defined in the Hotel Management Agreement,
provided, however, that the Incentive
Management Fee shall be limited to 10� of
adjusted gross operating profit (which is
gross operating profit less charges for
_ insurance, real estate taxes, and a reserve
for replacement of furniture, fixtures, and
•equipment)
(8) $929,075 payment based on a calculation of fifteen
percent (158) of $u,160,500 of debt equity.
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RESOLUTION # 10
Hotel shall provide to City an annual
certification of certified public accountant of
Gross Operating Revenues and Net Annual Cash Flow
and the amount due City consistent with the terms
of this Agreement and the agreement between City
and HUD, referred to hereinafter. This statement
shall be provided, together with the payment of
City's share of the Net Annual Cash Flow, within
120 days of the close of each year during the term
of the loan.
Further, the parties agree that City may, at its
own expense, verify by re£erence to the records of
Radisson and OCHV (OCHV agrees to make this a part
of its contract with Raddison) the various revenue
and expense items affecting "Net Annual Cash Flow"
and "continge�t interest." Said payments for
contingent interest will terminate upon payment in
full of the Nine Hundred Thousand Dollar
($900,000) note and mortgage fn favor of the City.
(i) Upon any cessation of operations, sale, refinancing,
foreclosure oc other disposition of the Hotel Project
or upon the liquidation, dissolution, insolvency or
bankruptcy of OCHV, any outstanding balance and accrued
interest on the UDAG loan shall immediately become due
and payable to City. In addition, in the event there
remains a portion�of the UDAG Loan outstanding, upon
such action, the City shall receive 158 of any Excess
9roceeds. "Excess Proceeds" shall mean the sale price
or refinancing amount less the cost of providing such
sale or refinancing and the outstanding balance on the
first and second mortgage loan. Notwithstanding the
foregoing, in respect of a refinancing, the UDAG second
mortgage may continue, at the option of the City and
OCHV, only after UDAG close-out, if the annu�l debt
service on the new first mortgage is not greater than
the annual debt service on the original first mortgage.
City's riqht to receive said payment of Excess Proceeds
will terminake upon payment in full of the Nine Hundred
Thousand Dollars ($900,000) note and mortgage in favor
of the Ci•ty.
(j) OCHV doe. hereby guarantee to City and HUD completion of
the Hotel and repayment of the UDAG loan; provided,
however, that OCHV's liability under such guaranty is not
a personal liability on the pact of the individual
venturers of OCHV.
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3.02 Utilities. City shall make available, or cause to be made
available on a timely basis during the construction period
and prior to first operations, in accordance with City
policies and practices and at usual and customary costs to
customers, all City utilities, includinq electric, water,
storm and sanitary sewers adequate to service the Hotel and
Parking Structure and provide any alterations to existing
sanitary sewers necessary to ensure adequate capacities
required for the Hotel Site development,
3.03 Licenses, City shall assist OCHV to obtain on a timely
basis all state and city liquor licenses, food service
licenses, hotel entertainment and other licenses necessary
for the operation of the Hotel.
3.04 Hotel Management AgreemenC. OCHV agrees to include in the
Hotel Management Agreement provisions by which Radisson
shall agree, inter alia, to meet UDAG minority employment
requirements as set focth in Exhibit A to khe agreement
between Ht1D and City.
ARTICLE IV
UDAG AGREEMENT PROVISZONS
4.01 OCHV and City, to the extent permitted unde[ Wisconsin law,
shall each use its best efforts to create or cause to be �
created within 98 months of preliminary approval of the UDAG ?-"
Grant, 270 new permanent jobs, including jobs for low and
moderate income persons, JTPA-Eligible persons and successor
organizations, and minorities as contained more particularly
in Exhibit A of the UDAG Grant Agreement.
4.02 This Agreement shall not be amended in any material respect
during its tecm and after its approval and acceptance by the
Secretary without the prior written approval of the
Secretary. "Materiai" is defined as anything which cancels
or reduces any developmental, construction, job creating, or
financial oblit�ation of any of the parties hereto by
more than ten percent (10$), changes the site or character
of any development activity, or increases any time for
performance by a party by more than thirty (30) days.
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4.03 Upon instruction by HUD, all Program Income, as defined in
the UDAG Agreement, received by City prior to completion of
all Recipient Activities, as set forth in Exhibit B of the
UDAG Grant Agreement, shall be deposited in escrow under
arrangements approved by HUD, in order to provide funds to
assure completion of such Recipient Activities.
4.04 The parties hereto warrant to HUD that on or before Closing
each shall have obtained or has reasonable assurance that it
will obta3n all federal, state, and local governmental
approvals and reviews required by law to be obtained by it
for the Hotel and Parking Structure. Those approvals or
reviews which have not been obtained as of Closing shall be
set forth in the legal opinions of the City Attorney of City
and Counsel for OCHV to be delivered at Closing. Further,
the parties warrant that they shall comply with the
provisions of the Davis eacon Act, as amended.
4.05 The parties hereto acknowledge that HUD, in selecting the
City for the award of the UDAG Grant, relied in material
part upon the assured completion of the Hotel and Parking
Structure; and, provided that Closing is achieved, each
party hereto assures the other that it will complete, or
cause to be completed, the activities for which it is
responsible.
4.06 Each party hereto receiving UDAG Funds agrees that:
,
(a) It shall keep and maintain books, records, and other
documents relating directly to the receipt and
disbursement of such grant funds; and
(b) Any duly authorized representative of HUD or the
Comptroller General of the United States shall, at all
reasonable times, have access to and the right to
inspect, copy, audit, and examine all of its books,
records, and other documents relating to such funds
until the completion of all close-out procedures
respecting the UDAG Funds, and the final settlement and
conclusion of all issues arising out of the UDAG Funds.
9.07 OCHV and the City agree that any duly authorized
representative of HUD shall, at all reasonable times, have
access to any portion of the Hote.l until completion of all
close-out procedures respecting the UDAG Funds, and the
final settlement and conclusion of all issues arising out of
the UDAG Funds.
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4.08 Each party hereto receiving UDAG Eunds acknowledges and
agrees that no transfer of UDAG Funds by the City to it
shall be, or be deemed, an assignment of UDAG Funds, and
that it shall neither succeed to any rights, benefits, or
advantages of the City under the UDAG Agreement, nor attain
any rights, privileges, authorities or interest in or under
the UDAG Agreement,
4.09 Each of the parties hereto acknowledges that nothing
contained in the UDAG Agreement, or in this Agreement
between the parties, nor any act of HUD, City, or any of the
parties hereto, shall be deemed or construed by any of the
parties hereto to create any relationship of third-party
beneficiary, principal and aqent, limited or general
partnership, ot joint venture, or anyassociation or
relationship involving HUD.
4.10 Except for the obligations which it has undertaken pursuant
to this Agreement, City shall not be liable to any party
hereto, or to any other party, except HUD, for completion
of, or failure to complete any activities which are a part
of the UDAG Agreement, except thase specified in Exhibit 8
of the UDAG Agreement.
9.11 Except for approved eligible administrative and personnel
costs, no member, officer, or employee of the City, or its
designees, or agents, no r_onsultant, no member of the
governing body of the City or the locality in which the
program is situated, aRd no other public official of the
City or such locality or localities, who exercises or has
exercised any functions or responsibil3ties with respect to
the UDAG Grant Activities during his or her tenure, or who
is in a position to participate in a decisionmaking process
oc qain insider information with regard to the project,!shall
have any interest, direct or indirect, in any contract or
subcontract, or the proceeds thereof� for work to be
performed in connection with the UDAG Grant Activities or in
any activity, or benefit therefrom, which is part of the
UDAG Grant Activieies at any time during oc afte[ such
person's tenure. �This provision shall be in addition to the
requirements in Attachments O of OMB Circular A-102 and A-
110. (Howevery upon written request of the City, the
Secretary of HUD may agree in writing to waive a conflict
otherwise prohibited by this provision whenever there has
been full public disclosure of the conflict oE interest,
either to the City or the person affected by applying the
prohibition and that the granting of a waiver is in the
public interest. No such request for a waiver shall be made
by City which would, in any way, permit a violation of State
or local law or any charter provision of the City).
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�4.12 Each of the parties hereto agrees
project sign r_onsistent with the
and the City's sign ordinance.
that City may provide a
criteria established by HUD
ARTICLE V
GENERAL PROVISIONS
_ This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their successors, successors
in interest and assigns, provided however, that OCHV may
assign its interest herein to a limited partnership of which
OCHV shall be the general pa�tner and'provided further that
OCHV shall not assign or otherwise transfer OCHV's interest
in this Agreement and the estate breated thereby, whether by
ope�ation of law, sale of stock, transfer of assets, merger,
consolidation or otherwise, without City's prior written
consent, which �onsent shall not be unreasonably withheld.
5.02 All notices required or desired to be given hereunder shall
be sent by certified or registered mail, return receipt
requested, and if to the OCHV, to:
Oshkosh Centce Hotel Venture
2 N. Riverside Plaza
Suite 600
Chicago, Zlli'nois 60606
Attn: Richard Perlman, Ted Leyhe
and if to the City, to:
City Manager
City of Oshkosh
215 Chu[ch Avenue
Oshkosh, Wisconsin 59901
Each of the parties sliall have the right to change the
address to which notices to it are sent by written notice to
the others.
5.03 (a) This Agreement constitutes the entire understanding of
the parties with respect to the matters relating to the
development of the Hotel and Parking Structure and the
other matters provided for herein, and there are no
covenants, promises, agreements, conditions or
understandings either oral or written between them
other than are contained or referenced herein. No
alterations, amendment, change or addition to this
Agreement shall be binding upon any party unless
reduced to writing and signed by each party.
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(b) Notwithstanding anything herein to the contrary, the
parties hereto acknowledge the due execution of the
UDAG Agreement, and acknowledge that each party hereto
has a copy of the UDAG Agreement and is familiar with
its contents� and each agrees that any conflict between
the provisions, requirements, duties or obligations of
this Agreement, and the UDAG Agreement, shall be
resolved in favor of the UDAG Agreement.
Further, the parties agree, notwithstanding anything
herein to the contrary, that any provisions of the UDAG
Agreement requiring matters to be included in this
Agreement (see, for example, Article IX of the UDAG
Agreement entitled Third Party Coritract Requirements)
shall be deemed a part of this agreement whether or not
the same is set out herein.
5.04 One oc more waivers of any covenants or conditions of this
Agreement by any party shall not be construed as a waiver of
a subsequent breach of the same covenant or conditions or
subsequent waivers of other covenants or conditions, and the
consent or approval by any party to or of any act by another
party [equirinq such party's consent or approval shall not
be construed as consent or approval to or of any subsequent
similar act of another party. No breach of a covenant or
condition of this Agreement shall be deemed to have been
waived unless such waiver be in writing, signed by the party
to be charged.
.
5.05 This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin.
5.06 Notwithstandinq anything herein contained to the contrary,
it is understood and agreed that City and OCHV gave no
absolute obligations under the terms of this Agreement and
that the obligations of each with respect to the development
of the Hotel and Parking Structure are contingent ones,
unless and until all conditions of the UDAG Aqreement are
met by all parties hereto, HUD makes the funds available to
the City pursuant to the terms of the UDAG Agreement, and
closing is achieved. In the event such funds are not
available to the City pursuant to the UDAG contract and
Closing is not achieved prior to June 30, 1985, each party `
shall have the riqht at any time thereaftec and until such
funds are received by the City to terminate this Agreement
by written notice to the other parties hereto.
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RESOLUTION # 10
5.07 It is understood and agreed that only the parties hereto
shall have any rights or benefits under this Agreement and
the parties do not intend to create any rights or bene£its
in any third patties, including HUD, as third party
beneficiaries or otherwise, except to the extent
specifically provided herein.
5.08 (a) So long as OCHV shall not be in material default under
the 5econd Mortgage, or this Agreement, and HUD shall
not be in default on the UDAG Agreement, (i) the City
will use its best efforts to avoid any default under
the UDAG Agreement which might cause HUD to cease to
grant UDAG Funds to the City in accordance with the
terms of the UDAG Agreement; and (ii) the City shall
promptly take any and all action, within the limits of
its legal authority and deemed appropriate by it, in an
effort to assure the continuing and timely grant oE
UDAG Funds to it pursuant to the UDAG Agreement.
(b) So long as the City shall not be in material default
under this Agreement, OCHV warrants that it shall meet
all of its obligations under this Agreement.
5.09 The City and OCHV mutually understand and agree that it is
the intent of the City to issue Industrial Revenue Bonds
(IRB's) pursuant to Section 103(b) of Internal Revenue Code,
as amended, in an amoun,t of approximately Six Million
Dollars ($6,000,000) and that it is the opinion of bond
counsel that capital expenditures by the City on the Hotel
Site, the Convention Centet, and the Parking Stcucture are
deemed to be capital expenditures attributable to the Hotel
project; and the City and OCHV do mutually agree and
understand that there are certain limitations on the sum of
all capital exgenditures for the Hotel Site, Parking Garaqe
and Convention Center and that the consequer.ces of exceeding
such limitations will cause the IRB's to become subject to
federal income tax. The City hereby agrees that for the
period commencing on December 29, 1989, and for three years
thereafter, and for three years preceding December 29,
1984, that it �oay not have incurred or shall not incur
capital expend�itures in connection with Convention Center o�
Parking Garage, which exceed the total set forth below:
Pre-December 29, 1984
December 30, 1984 to
December 29, 1987
December 30, 1984 to
December 29, 1987 (Continqency)
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$ 1,366,186
$ 5,336,705
200,000
6,902,891 TOTAL
RESOLUTION # 10
The City heceby indemnifies OCHV against any and all
payments which OCHV may incuc pursuant to Section 5.4 of the
Mortgage Loan and Security Agreement of the Industrial
Revenue Bond Documents.
5.10 Each agreement, obligation, representation and undertaking
of the parties hereto contained in this Agreement shall
survive the Closing.
5.11 This Agreement shall supercede the Development Agreement �
dated December 27, 1984, and in the event of a conflict
between the terms of the two agreements, the terms of this
Agreement shall prevail.
ARTICLE VI
DEPINITIONS
"Closinq" means the date upon which the items set forth in
Section 1, 1.01(b) are accomplished and the first disbursement
funding for the Hotel is able to be made pursuant to the UDAG
Agreement.
"Agreement" means this agreement and any amendments thereto.
"Parking Agreement" means the agreement as amended from time -
to time, between OCHV and the City to provide parking in the
Parking Structure OCHV is required to construct pursuant to
the UDAG Agreement.
.
"Hotel" means an approximate 182-room project to be
developed on the Site and managed by the Radisson Hotel
Corporation or some other hotel management corporation as
mutually agreed to by the City and OCHV, as more fully described
in Exhibit C to the UDAG Agreement.
"4�ote1 Management Agreement" means the agreement between the
OCHV and the Hetel Manager to manage the hotel for a term of at
least 25 years.
"Hotel Manager" means Radisson, or any party substituted
therefor.
"HUD" means �he llnited States Department of Housing and
Urban Development, acting throu9h its authorized representative.
"MortqacZee(s)" means the City, the second mortgage lender.
"Parking Structure" means a parking garage containing not
less than 157 automobile pa�king spaces to be developed on the "
site as mutually aqreed to by OCHV and City, as more fully
described in Exhibit C of the UDAG Grant Agreement. '
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"Site" means those parcels located on the
block of North Main Street, as shown on Exhibit
hereto, in Oshkosh and upon which the Hotel and
to be constructed.
RESOLUTION # 10
west side of the first
A and Exhibit C
Parking Structure are
"Title Insurance Company" means a title insurance company
satisfactory to the parties hereto.
"UDAG Agreement" means the Grant Agreement (UDAG No. B-83-
AA-55-0022) executed by HUD on March 30, 1983 and by City on
December 27, 1984, and any amendments thereto.
"UDAG Giant" or "UDAG Loan" or "UDAG Grant Eunds" means the
Nine Hundred Thousand Dollar ( 900,000) amount granted to the
City of HUD pursuant to the UDAG Agreement.
"llDAG Mortgage" or "UDAG Loan" means the loan in the amount
of Nine Hundred Thousand Dollars ($900,000) to be made by the
City to the OCHV, whichloan is to be secured by a Second Mortgage on
the Hotel.
IN WITNESS WHEREOF, the pacties hereto have hereunder set
their hands and seals the day and year first above written.
ATTEST:
City Clerk
ATTEST:
Assistant Secretary
CITY OE OSHKOSH
� A Municipal Corporation
City Manager
OSHKOSH CENTRE HOTEL VENTURE
A Joint Venture
BY: OHV Associates, an Illinois
Limited Partnership, Managing
Venturer
BY: OHV, INC, an Illinois
Corpocation, General Partner
Richard Perlman, President
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RESOLUTION # 10 �
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EXHIBIT A
HOTEL SITE
Lot 3 of Certified Survey Map 1197 dated October 7, 1983 and
recorded in the Office of the Register of Deeds for Winnebago
County, Wisconsin on December 8, 1983 at 8:06 a.m, as Document
No. 602518.
Being a part of Lots 1 through 11 in MOORE'S SUBDIVISION, vacated
Marion Street, and a part of Lot 4, of Block 6, LEACH'S MAP, all
in the First Ward, City of Oshkosh, Winnebago County, Wisconsin.
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EXHIBIT B
GROUND LEASE
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RESOLUTION # 10
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RESOLUTION # 10
EXHIBIT �=
PARKITdG GARAGF. SITE
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 exist-
ing South line of Marion Street 194.46.feet; thence t+.00°-74'
-46"E. 15.71 feet, to the true point of beginning; then::e
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"�4. 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. 9^.20 feet; thence N.00°-24'-46"E. 84.89 feet,
to the truP yoint of beginning, excluding from said oarcel 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 area being part
of the driveway easement hereinafter described. Said parcel
contains 32,493.96 square feet of land.
Driveway Easement:
That part of the First Ward, City of Oshkosh,
Winnebago County, tJisconsin 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 S.89°-36'-07"E. 10.00 feet,
to a point on the Nest 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. 19.57
feet; thence N.89°-36'-07"W. 208.84 feet; thence N.00°-23'-53"E.
40.15 feet; thence 5.89°-36'-07"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. ,
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EXHIBIT D
CONCESSION AGREEMENT
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RESOLUTION # 10
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