HomeMy WebLinkAbout33130 / 84-02,
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DECEMBER 13, 1984
(CARRIED LOST
PURPOSE:
INITIATED BY:
LAID OVER
# 2 RESOLUTION
WITHDRAWN
APPROVE AMENDMENTS TO OSHKOSH CENTRE
GROUND LEASE AGREEMENT
CITY ADMINISTRATION
WHEREAS, the Common Council of the City of Oshkosh approved a
Ground Lease Agreement for the Downtown Centre Project on
November 17, 1983 and December 8, 1983, and
WHEREAS, in order to clarify and make more specific said
Ground Lease Agreement, certain modifications and amendments to the
Ground Lease Agreement should be made,
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the
City of Oshkosh that the Ground Lease �greement heretofore adopted
is approved as amended by the attachments to this resolution.
SUBMITTED BY
APPROVED rkL ��A�r.r; 6� I� ; ' �/i
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12/13/84
GROUND LEASE
THIS GROUt1D LEASE, made and entared into this day of
December, 1984, by and between the CZTY OF OSHROSH, WISCONSIN a
M�nicipal Corporation (hereinafter "LESSOR"), and OSHROSH CENTRE
HoTEL VENTURE, a joint venture comprised of OHV Associates, an
711inois Limited Partnership, and A-K Company,(hereinafter "OCHV")
a Wisconsin sole proprietorship (hereinafter "LESSEE").
� W I T N E S S E T H
IN CONSIDERATION of the mutual promises and covenants
c�ntained herein, the parties hereto agree as follows:
1. PREMISE5. LESSOR hereby leases to LESSEE and LESSEE
hereby rents from LESSOR, upon tha followi�g te[ms and conditions,
tne parcel of vacant land located or. the wes:. Side of the first
biock oE North Ma:n Street in tha 'ity of Oshkosh, County of
Winnebago, State of Wisconsin (hereinafter the "Demised
Premisas"), as set forth and descr'.bed in Exhibit "A' attached
:�.er�t� and made a pact hereof. '
2. TERM. The term of this Lease is seventy-six (76)
p�ears, beginning as o` the date of commancemene of constructio�i
o` :mprovements to the Demised Premises as hereinafter described,
cr beginning at the date of closing for Industrial Revenue Bonds
:ssu°d on behalf of the Oshkosh Hotel Centre Venture whichever is
ear'_�er.
3. RENT LESSEE shall pay to CESSOR without abatement
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deduction or offset, in legal currency of the United States, on
April 1, 1987 and on each and every successive April lst thereafter
to and including April 1, 2007, as annual rent for the calendar year
prior to payment, the following sums:
Aoril 1, 1987 - $50,000
April 1, 1988 - $50,�00
April 1, 1989 - $50,000
April 1, 1990 - $50,000
April 1, 1991 - $50,000
April 1, 1992 - $50,000
April 1, 1993 - $50,000
April 1, 1994 - $50,000
April 1, 1995 - $50,000
April 1, 1996 - $50,000
April 1, 1997 - $100,000
April 1, 1998 - $100,000
April 1, 1999 - $100,000
April 1, 2000 - 5100,000
April l, 2001 - $100,000
April 1, 2002 - $275,000
April 1, 2003 - $275,000
Apri1 1, 2004 - $275,000
April 1, 2005 - $275,000
April 1, 2006 - $275,000
April 1, 2007 - $275,000
Commencing on April 1, 2008 and each and every successive
Apri1 1st thereafter for the remaining term hereunder, LESSEE shall
pay to LESSOR an amount equal to real property taxes which would be
levied in any such year on the vacant land value based upon land
similarly zoned and similarly situated.
In addition, LESSEE shall pay LESSOR for the calendar year com-
mencing 1987 and for each calendar year thereafter for the term of
this agreement, an amount equal to the real property taxes which
would be assessed in any such year on a faull value assessment of
$8,000,000. LESSOR shall give credit to LESSEE for such payment
against the real property taxes paid by LESSEE in any such year. Pay-
ment hereunder shall be made by LESSEE at least ten (10) days before
the due date(s) for the payment of real property taxes for any given
year. It is understood by the parties that the payment hereunder may
be less than or may exceed the amount of real property taxes pa able
by LESSEE in any given year and LESSEE shall pay the greater o� the
two figures.
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4. IJARRANTY OF TITLE AND QUIET POSSESSION. LESSOR
::ov�narits *_hat LESSOR is seized of the Demised Premises in fee
simple and has full right to make this Lease and that LESSEE
shall have quiet and peaceable possession of the Demised Premises
ducing the term hereof.
S. ?AYMENT OF UTILITIES, TAXES AND ASSESSMENTS. LESSEE
shall pay all utility charges, real propecty taxes, ezcept as
limited under paragraph 3, general or special asseasments, and
other charges of every description levied or assessed against the
Demised Premises or the improvements located on the Demised
Premises, and all personal property taxes levied on or assessed
against LESSEE'S leasehold estate or LESSEE's personal property,
to the full extent of installments falling due during the Lease
term, whether chargeable against LESSOR or LESSES. LESSEE shall
mak� all such payments directly to the taxing authority at least
ten (10) days before delinquency and before any fine, interest or
penalty shall become due or be imposed by operaGioi! of-law foc
their non-payment. If, however, the law expressly permits the
payment of any and all of the above items in installments, LESSEE
may, at LESSEE's election, utilize the permitted installment
method, but shall pay each installment with any interest before
delinquency.
All payments of taxes or assessments or both except
permitted installment payments, shall be prorated for any part of
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a year at the commencement and termination of the Lease,"on the
basis of the most recent real estate tax assessment and real
asta�e tax cate.
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[.ESSEE may contest the legal validity or amount of any
taxes, assessments or charges for which L^nSSEE is tesponsible
under this LEASE, and may institute such proceedings as LESSEE
�onsiders necessary. If LESSEE contests such tax, assessment or
charge, LESSEE may withhold or defer payment or pay under protest
but shall protect LESSOR and the Demised Premises from any lien by
adequate surety bond or othec appropriate security.
i.ESSOR appoints LESSEE as LESSOR's attorney-in-fact for the
oucpose uf making all payments to any taxing autho[ities and for
the purpose of contesting any taxes, assessments or charqes,
conditioned on LESSEE's preventing any liens from be3ng levied on
the Demised Premises or on LESSOR provided, that the same shall
not entail any cost or expense to LES50R.
LESSEE shall furnish to LESSOR at least five (5) days before
the date when any tax assessments or charges would become
delinquent, receipts or other appropriate ev3dence establishing
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their payment.
6. USE. LESSEE shall use and permit the use of the
Denised Premises for the construction, equipping, development,
maintenance and operation of a first class hotel to be known as
the Radisson Oshkosh or such other hotel as may be mutually
agreed upon by LESSOR and LESSEE (hereinafter the'H�TEL'), such
agreement not to be unreasonably withheld by LESSOR, and
uses reasonably related to such use, all substantia22y �n
accordance with the plans and specifications as set forth and
described in Exhibit "B" attached hereto and made a part hereof.
Presently, it is not contemplated that any parking for the HOTEL
w�il be provided on the Demised Premises.
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7. NEW IMPROVEMENTS. LESSEE shall, at LESSEE's sole
expense, prepare plans and specifications for the HOTEL to be
erected on the Demised Pcemises. LESSEE shall not permit any
mechar.ic's, materialman's, contractor's, or subcontractor's lien
arising from any work of improvement, to be placed or filed
against the Demised Premises. LESSEE shall defend and indemnify
LESSOR against all liability and loss of any kind arising out of
work performed on the Demised Premises by LESSEE, together with
:easonably attorney's faes and the costs and expenses incurred by
LeS50R in negotiatinq, settling, defending or otherwise
protecting against such claims, provided, however, that LESSEE
nas not removed such claim(s) within thirty (30) days oE such
claim(s) placement or filing.
8. CONSTRUCTION, OPERATION� MAiNTENANCE AND REPAIRS.
Throughout the Lease term, LESSEF, shall, at LESSEE's sole cost
and expense, construct, operate and maintain the Demised
Premises, HOTEL, sidewalks, curbs, water, sewer and gas
connections, and all other fixtures, equipment and improvements
belonging to or connected with the Demised Premises in ficst
class, sanitacy condition and repair and in accocdance with all
applicable laws, rules, ordinances, orders and regulations of:
(a) Federal, state, county, municipal and other
governmental agencies and bodies having or claiming
jurisdiction and all their respective departments,
bureaus and officials.
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(b) The insurance underwriting board or insurance
inspection bureau having or claiming jurisdiction; and
(c) All insurance compenies insuring all or any part of the
Demised Premises or improvements or both.
LESSEE shall use its best efforts to have the operaCOr of the
HOTEL and ati sublessees comply with all of the above
laws,rules, ordinances, orders and regulations.
=zcept as provided below, LESSEE shall promptly and
d:iLgently repair and raplace as required to maintain or comply
�s .�b�ve, or co remedy all damage or destruction of all o[ any
2ar'_ of r_he improvements.
Nothing i� this provision defining the duty of maintenance
aha�l be construea as limiting any right given elsewhere in this
Lease to alter, modify, demolish, remove or replace any
improv_ment, or as limiting provisions relating to condemnation
or to damage or destruction during the final year o[ years of the
rerm. No impai�ment or limitation of use *esultirtg from any
event or work contemplated by this Paragraph shall entitle LESSEE
to any offset, abatement or reduction in rent noc to any
�ecmination oc extension of Che Lease term. LESSEE shall have
the right to remodel the i:iterior of the HOTEL to meet the needs
oc tenants, and to modernize the HOTEL.
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Notwithstanding any other provision of this Lease:
(a) In the event of major damage oc destruction, LESSEE
shall not be required to rebuild and/or reconstruct any
improvement if the cost of the propsed reconstructed oc
rebuilt improvement will exceed the value of the
improvement prior to the damage or destruction.
(b) In the �vent of damage or destruction during the last
five (5) years of the Lease term to an extent such that
restoration would ceyuire an expenditure of more than
�iie-thir�3 (1/3) of the value oE the building
immediately prior to the damage or dest[uction, LESSEE
may, upon thirty (30) days notice to LESSOR, terminate
this Lease, in which event, all insurance proceeds in
excess of any amount required to be paid to any
mortgagee shall belong solely to LESSEE.
9. OWNERSHIP OE IMPROVEMENTS. All improvements
const!ucted on the Demised �remises by LESSEE as permitted by
this Lease shall be owned by LESSEE until expiration of the Lease
term or sooner termination of this Lease. LESSEE shall not,
'��_owever, remove any improvements £rom the demised Premises nor
waste, destroy or modify any improvements on the Demised
Premises, except as permitted by this Lease. The parties
covenant Eor themselves and all persons claiming under them that
the improvements are real property.
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31' improvements on the Demised Premises at the expiration
nF ti�e Lease te[m or upon sooner termination of this Gease shall,
without compensation to LESSEE, then become GESSOR's property
�ree �nd clear of all claims except those suffered or permitted
b,� LESSOR to or against them by LESSEE or any third person, and
:.ESSEE shall deFend and indemnify LESSOR against all liability
and loss arising from such claims or from LESSOR's exercise of
the riyht conferred by this Paragraph.
Notwithstanding anything to the contra[y contained hetein,
:�t the expiration of the Lease term or sooner termination of this
L�ase, LESSEE may remove any furniture, fixtures, equipment and
personal prooerty furnished by or at its expense, provided that
such removal does not structurally injure the HOTEL or
necessitate fundamental changes thereto. LESSEE shall, at its
sole cost and expense, repair or cause to be cepaired any damage
resulting from such removal, normal wear and tear excepted.
10. MORTGAGE BY LESSEE. LESSEE may, provided that LESSEE
is not then in default hereunder, execute mortgages upon LESSEE's
leasehold interest in the Demised Premises and the improvements
upon the Demised Premises through an institutional lender, not in
excess of six million dollars ($6,000,000), an UDAG mortgage upon
the LESSEE's leasehold interest in the Demised Premises throuqh
LESSOR as security for the payment of notes, a third mortgage in
favor of A-K Company, Oshkosh, Wisconsin, such other mortgages as
are approved by LESSOR in writing and any renewal or extensions
thereof, to be executed by LESSEE, upon the following terms and
conditions:
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!a� Lessor shall not be obligated foc the payment of any
such loans or any part thereof.
(b) ThF notes and mortages shall provide that in the event
of any deEault as to the terms and provisions of each
or any notes and mortgages which would permit the
institutional lender and/or LESSOR and/or A-K Company
to accelerate the loan balance, the institutional
lender and/or LESSOR and/or A-K Company shall be
obligated to give LESSOR written notice of such default
and opporunity to cure such default for a period of
thirty (30) days following the receipt of such notice.
(c) LESSER covenants and a�rees that the proceeds of the
loans shall be used solely and exclusively to pay for
development and building costs, loan expenses and othe.-
related costs with respect to improvements to be made
upon the Demised Premises and a parking stcucture
adjacent to said Demised Premises, and for no other
purpose.
(d) The notes and mortgages may provide that this Lease and
the LESSOR's fee interest in the Demised Premises
shall be subject and subordinate to the lien of the
mortgages placed upon the Demised Premises and the
improvements upon the Demised Premises or any portion
thereof by LESSEE, its successors or assigns, and to
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replacements, renewals and extensions thereof except
that any such subordination to a mortgage of A-K Company
shall not exceed Three Million Dollars ($3,000,000.00).
The LESSOR shall, upon request, furnish LESSEE with
counsel's opinion stating that the existing law of the
State of Wisconsin does not prohibit the Lease and the
LESSOR's fee interest in the Demised Premises being
made subject and subordinate to the lien of the
mortgages, and that said subordination is in accordance
wtih the terms of this Lease. The LESSOR shall at any
time after demand execute a�d deliver any instruments,
-eleases or documents that may be reasonably required
for the purpose of subjecting and subordinating its
interest in the Lease and iCs fee interest in the
Demised Premises, as above provided, to the liens of
any suchmortgages.
11. ASSIGNMENT, SUflLETTING AND MANAG�MENT AGREEMENT.
LESSEE shall not assign or otherwise transfer LESSEE's interest
:n rhis Lease and the estate created Chereby,whether by operation
oF law, sale of stock transfer of assets, merger, consolidation
or otherwise, without Lessor's prior written consent, which
consent shall not be unreasonably withheld, provided, however,
that OCHV may assign its interest hereinto a limited partnership
oF which OCHV shall be a gerteral pactner.
LESSEE shall have the absolute right to sublet all or any
part �f the improvements, provided that each sublease shall
�ontain a pYOVision requiring aublessees to at:^rn to LESSOR.
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?rumptiy on LESSOR's demand, LESSEE shall furnish LESSOR with a
phutostatic copy of each sublease made of space :n the Demised
Premises.
LESSEE shall enter into a management agreement (hereinafter
the "Management Agreement") with Radisson Hotel Corporation or
such o`_her hot�l operator as are mutually agreed to by LESSOR and
_..��BE on or prior to the opening for business of the HOTEL to
np�,race it as a Radisson Hotel, or such other HOTEL mutually
a�:eed to by LESSOR and LESSEE; provided that LESSOR shall not
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unreasonably with�.�t their consent, LESSEE shall at all times during
the Lease term comply with the terms of the Management Agreement.
As additional security to LESSOR, subject to the mortgage or
mortgages as desccibed in Paragraph 10 hereof, LESSEE hereby
assigns t� LESSOR all of LESSEE's right, title and interest in
und t� the Management Agreement and any successor agreement
i�ereto, such assignment being conditional only and not
�pecarive, absoluKe or in effect unless and until a default has
��curred on the part of LESSEE under this Lease. LESSEE shall
noc without the prior written consent of LESSOR., which consent
shall no*_ be unraasonably withheld, modify or cancel the
Management Agreement or any successor thereto. In the event the
Management A9reement or any successor thereto is cancelled,
�SSSEE �hall promptly enter into a substantially similar
=:r�eme,: with some othar organizat:on of equal stature to
�ad ss<�n notel �orporarion. LESSEE shall supply LESSOR with
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.:opies oi all notices or other communications sent to or received
under the Management Agreement promptly upon their receipt or
�ransmitta�, as the case may be. LESSOR agtees *_o enter into such
subor3ination, non-disturbance and atto[nment agreements as
3adisson Eiotel Corporation may reasonably require.
� ZNSURANCE, INDEMNIF?CATION AND HOLD HARMLESS.
A. Fire and Extended Coveraqe. Throughout the Lease term,
LF.55Ec s sole cost and expense, LESSEE shall keep insured all
ir+prover�ents locatzd on or apurtenant to *he Demised Premises
>q�inst 'oss or damage by fire, and such other risks as aze now
�_ '�erzafter included in an extended coverage endorsement in
^ommon use foc first class hotels and related
concrercial structures, including vandalism and malicious mischief,
fo�' the benefit of LESSOR and LES5EE as their intetest may
aupcar. The amount uf insurance shall be sufficient to prevenC
�;*_her LES60R or LESSEE from being a co-insurer under the
provisions of the policies, but in no event shall the amount be
iess than eighty (80) percent ef the then actualrepla�nent cost
r che amount required by LESSEE's mortgagees, if any.
LESSOR shall, at LESSEE's cost and expense, cooperate Eully
:�ith �ESSEE to obtain the largest possible recovery, and all
polici"s of fire, extended coveraqe and otrier hazard insurance
required herein = sla�all provide that the proceeds shall be paid to
LESSEE. The proceeds, when paid to LESSEE, shall be.held in
crust *_o the use and purposes provided in this Lease.
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B, PUBLIC LIABILITY INSURANCE. LESSEE shall maintain in
etfec± tnroughout the Lease term personal injury liability
insurance covering the Demised Premises and its appurtanances and
±ne si�ewalks surrounding thereon in the amount of at least
s2,0u0,OD0.00 for injury to or death of any person and at least
�-' OJG .^,^�? 00 for any one accident or occurrence, and at least
s',000,�00.00 for properry damage, or any greatar amounts as may
t,� r=yuired by either LESSEE's mortgagees, if any, or LESSOR,
-ea��r,ably, from time to time, based on changed economic
conditions. LESSOR shall be named as an insured on LESSEE's
p�blic iiability policies as its interest may appear.
C. :nsurance Generally. LESSEE may procure and maintain
:nsuranc= not required by this Lease and all s.ich insuranee sha11
be for the mutual benefit of LESSOR and LESSEE. LESSEE shall
�srnish Lessor, with copies of all such policies promptly on
:eceipt of them or with certificates evidencing the insurance,
all at least thirty (30) days before the expiration thereof
(subsequent to their initial purchase). All policies shall waive
ail riqhts of the insurers to be subrogated to any rights of
:.ESSOR against LESSEE or LESSEE against LESSOR and shall contain
an agreement by the insurer that the policies shall not be
cancelled or modified without at least ten (10) days prior
written notice to LESSOR and any mortgagee to whom a loss
thereunder may be payable.
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�ESSEE shall keep in force such other insurance in such
a*rowzts as may from time to time be reasonably tequired by LESSOR
against such insurable hazards as at the time are commonly
insu:ed against in the case of first class hotels similarly
sicuat=d.
D. INDEMNIFICATION AND HOLD HARMLESS. LESSOR shall not be
liable, �nd LESSEE shall defend and indemnify LESSOR against
a11 liability and claims of liability, for damage or injury to
person or property on or about the Demised Premises from any
cause. LESSEE waives all claims against GESSOR for damage or
injury to person or property arising, or asserted to have arisan,
from any cause whatsoever.
3. CONDEMNATION. The following definitions apply in
construing provisions of this Lease relating to a taking of or
da�age to all o� any part of the Demised Premises or improvements
o: any intecest in them by eminenb domaln or invers•
cnndemnation:
(a) Taking means the taking or damaging, including
severance damage, by eminent domain or by inverse
condemnation or for any public or quasi-public use
under any statute. The transfer of title may be either
a transfer resulting from the recording of a final
order in condemnation or a voluntary transfer or
conveyance to the condemning agency or entity under
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threat of condemnation, in avoidance of an exercise of
eminent domain, or while condemnation proceedings are
pending. The taking shall be considered to take place
as of the date the Lessee's physical possession is
taken or intecfered with by the condemnor or the date
the condemnor becomes the legal owner of the interests
being condemned, whichever is earlier.
(b) Total taking means the taking of the fee title to all
the Demised Pcemises and the improvements on the
Demised Premises, which shall be considered to include
any offsite improvements affected by Lessee to serve
the Demised Premises or the improvements on the Demised
Premises.
(c) Substantial taking means the taking of so much of the
Demised Premises or improvements or both that one oc
both of the following conditions results:
(i) The remaining Demised Premises would not be
economically and feasibly usable by Lessee.
(ii) The portion of the Demised Premises not so taken
cannot be so repaired or reconstructed, taking
into consideration the amount of the award
available for repair or reconstruction, as to
constitute a complete, centable structure, capable
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of producinq a proportionately fair and reasonable
net annual income after payment of all operating
expenses, the annual cenr and all other charges
payable under this Lease, and after performance of
all covenants and conditions required of Lessee by
law and under this Lease.
(d) Partial taking means any taking which i5 not either a
total taking or substantial taking.
(e) Notice of intended taking means any notice or
notification on which a reasonably prudent. person would
rely and which that person would interpret as
expressing an existing intention of taking as
distinguished from a mece preliminary inquiry or
proposal. It includes but is not limited to the
service of a jurisdictional offer on a pacty to this
Lease. The notice is considered to have been received
when a party to this Lease receives from the condemning
agency or entity a notice of intent to taka, in
writing, containing a description or map of the taking
reasonably defining the ext?nt o` the taking.
(f) Award means compensation pa:d Eor the taking whether
pursuant to judgment or by agreement o� otherwise.
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The party receiving any notice of the kinds specified below
shall promptly give the other party notice of the receipt,
contents and date of the notice received:
1. Notice of intended taking;
2. Service of any legal process relating to
condemnation of the Demise3 Premises or improvements;
3. Notice in connection with any proceedings or
negotiarions with respect to such a condemnation; or
9. Notice of intent or willingness to make negotiate
a private purchase, sale or transfer in lieu of
condemnation.
A. Total oc Substantial Taking
On a total tak;ng, Lessor's obligation to pay rent shall
Cennin�te or, and Lessee's interest in the leasehold shall
_on*:nue until, the date of taking.
�° the taking is substantial under the definition appearing
,,bove, Lessee may, by notice to Lessor given with seventy-five
75� days after Lessee receives notice of intended taking, elect
to treat ^he taking a s�bstantial taking. If Lessee does not so
notify t.essor, the taking shall be deemed a partial taking. A
substantial taking shall be treated as a total taking if:
(1) �essee delivers possession to Lessor within thirty (30)
days after the date of the taking; and '
i2) Lessee is not in default under the Lease and has
complied with all Lease pcovisions.
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L�. these _onditions are not met, the taking shall be treated as a
partial taking.
Lessee may continue to occupy the Demised Premises and
_;..^,rovem�nts until the condemnor takes physical possession.
Howeve-. at any time following notice of intended total taking,
or : thin the time limit specified far delivering possession in
th_ �rovision on substantial taking, Lessee may elect to deliver
posses-:on of the Demised Premises to Lessor before the actual
ca'�ing The election shall be made by notice declaring the
e!�ction and convenan[ing to pay all rents required undet this
Lease 'o =he date of taking. Lessee's right to apportionment of
er compensation from the award shall then acerue as of the date
that Lessee qoes out of possession.
On a total taking, all sums, including damages and interest,
awarded Eor the £ee or the leasehold or both shall be divided
between the respective parties in the manner provided Dy laa at
:�e time of *_he taking. Any amount required to be paid to any
nortgagee of � mortgage encumbering the fee interest in the
property securing an obligation of Lessee shall be paid out of
�essee's share of the aware.
B. Partial Taking
On a partial taking, this Lease shall remain in full force
and effect, covering the remaining property.
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Promptly after a partial taking, at Lessee's expense and in
the manner specified in provisions of this Lease, relating to
maintenance, repairs and alterations, Lessee shall tepair, alter,
�odifl oc reconstruct the improvements (hereinafter referred to
as restoring) so as to make them into a complete architectural
nit and reasonably suitable for Lessee's continued occupancy for
t:,e :ses and ourposes for which the Demised Premises are leased.
Lessee is relieved of the duty to, but may, repair, alter,
mo�iEy .r reconsr_ruct the improvements if a part�al tekSng occurs
during the final five (5) years of rhe Lease term as described
below. The conditions for relief are:
i. The work of repair, alteration, modification or
reconstruction would require an expenditure of more
than one-third (1/31 of *_he ��alue of the building prior
to the taking, damage or destruction.
2. Within one hundred twenty (120) days after Leasae
resxieves notice of intended taking, Lessee gives Lessor
notice of election to c:aim the relief desctibed in this
provision are met, the award shall be apportioned as
for a total taking, applying the requirements of rhis
provision relating to Lessee's mbligations; provided
Lessee's right, title, and interest in the land,
improvements and leasehold estate shall continue until
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the taking is completed by deed, contact ot firral order
of condemnation, and provided Eurther, that the
estimated cost of such reQair, alteration, modification
or reconstruction shall be deducted from Lessee's share
of the award and paid to Lessor, subject to the rights
o£ any mortgagee.
On a partial taking, if this Lease is not terminated
pursuanr. to the relief provisions of the immediately p[eceding
subparagraph, all sums awarded, including damages and interest,
shall be divided between the parties in the manner then provided
by law, subject to the rights of any mortgagee.
on any taking of the temporary use of all or any part or
parts of the Demised Premises or improvements or both for a
per:od, or of any estate less than a fee, ending on or before the
expica�ion date of the Lease term, neither the Lease term nor the
rent shall be reduced or affected in any way and Lessee shall be
^�titled to any award for the use oc estate taken. If a result
�= che `.aking is to necessitate expenditures for changes,
repaics, alterations, modifications or reconstcuction of the
impro���ments to make them into a complete architectural unit and
economi�a�ly and reasonably suitable for Lessee's continued
occupancy for the uses and purposes foc which the Demised
Premises are leased, Lessee shall receive, hold and disburse the
award in trust for such work. At the completion of the work and
*he discharge of the Demised Premises and improvements from all
liens and claims, Lessee shall be entitled to any surplus and
sha11 be tiable for any deficit.
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?E any such taki�g is for a period extending beyond the
expiration date of the Lease term, the taking shall be treated
under the foregoing provision for total, substantial and pactial
takings.
i4. DEFAULT
Each of the following events shall be a default by Lessee
and a breach of this Lease:
(a) Abandonment or suerender of the Demised Premises or of
the leasehold estate, or failure or refusal to pay when
due any installment of rent or any other sum required
by this Lease to be paid by Lessee or failure or
refusal to perform as required or conditioned �r
any other covenant or condition of this Lease.
(b) The subjection of any right or interest of Lessee to
attachment, execution or other levy, or to seizure
under legal process, if not released within sixty t60)
-......�..„;�- , - _
�ays.
(c The appointment of a receiver who is not removed within
sixty (50) days after appointment to take possession of
the Demised Premises or improvements or of Lessee's
interest in the leasehold estate or of Lessee's
operations on the Demised Premises for any reason,
including but not limited to, assignment for benefit of
creditors or voluntary or involuntary bankruptcy
proceedings, but not including receivership:
ii) pursuant to administration of the estate of any
:eceased or incompetent individual member oE
�a�
- _- =?i¢s _ . . .
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Lessee;
(ii) pursuant to any mortgage pecmitted by provisions
of this Lease relating to consttuction of
improvements; or
(iii) instituted by Lessor, the event of default being
not the appointment of a receiver at Lessor's
instance but the event justifying the
receivership, if any.
(d) An assignment by Lessee for the benefi* of creditors or
the filing of a voluntary or involuntary petition by or
against Lessee under any law for the purpose of
adjudicating Lessee a bankrupt; or for extending time
for payment, adjustment, or satisfaction of Lessee's
liabilities; or for reorganization, liquidation,
dissolution, or arrartgement on account of or to prevent
bankruptcy or insolvency;, unless the assignment or
proceedings, and all conseguent orders, adjudications,
custodies and supervisions are dismissed, vacated, or
otherwise permanently stayed or terminated within sixty
�60) days after the assignment, filing or other irtitlal
event.
(e) Default oc delinquency in the payment of any loan
secuced by a mortgage permitted by this Lease to be
placed by Lessee against Lessor's title or the
leasehold or both.
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C
In the event that Lessee defaults in the payment of
rent, including any additional rental payable he[eunder, the
Lessee does not cure the default within thirty (30) days
after written demand for payment of such rent, or if Lessee
defaults in the prompt and full performance of any other
provisions of this Lease, including defaults as he[ein
deEined, and Lessee does not cure the default within sixty
(60) days after written demand by Lessor that tha default be
cured, or such further time as may be reasonably necessary
to cure such default, then and in any such event Lessor may,
iE Lessor so elects but not othe[wise, with or without
further notice or demand, subject, however, to rights of
prior mortgages, forthwith terminate this Lease and Lessee's
right to possession of the Demised Premises or, without
terminating this Lease, forthwith terminate Lessee's right
to possession of the Demised PLemises and in either case
�-t. ,- ... _ ,..
Lessor may re-enter the Demised Premises, and .repossess the
Demised Premises and may re-let the same after making such
repairs and doing such remodeling as is reasonably necessary
to re-let the Demised Premises. Lesso� shall, in the event
�E any such default, also give written notice of such
defa�ilt to Lessee's mortgages and Lessee's mortgages shall
have the same period of time granted Lessee to cure any such
default. Lessee is not released from liability for rent,
inciuding any additional rental payable hereunder, or
damages because Lessor repossesses the Bemised Premises or
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. is;�.. .
pursues any other remedy available to Lessoc. Lessor shall
ap�ly the money de[ived £rom re-letting to the rent due or
to become due on this Lease and to the cost of repairing,
remodeling, showing and advertising th� �i� ���-f�
the purpose �f re-letting and attocney's fees and other
expenses incurred by Lessor in connection with enforcing
this Lease, and Lessee shail remain liable for any
deficiency and aqrees to pay the same. In the event �f such
repossession, Lessor may, at the end of each calendar month
during the remaining term, deman3, be entitled to and sue
for, the monthly rent, together aith all expenses ipc�rred
in attempting to re-let if the Demised Premises are not re-
let and, if re-let, the deficiency resulting monthly fCOm
such re-letting. Lessor's right to bring action shall be
multiple and several. Action brought to recover the amount
due for any year shall not prejudice or bar Lessor from
_ ,�,wnr„�e•,_..,�.�
subsequent action to recover the amount due for any
subsequent year.
In the event that Lessor shall terminate this Lease, in
addition to any other remedy it may have, Lessor may recover
from Lessee all damages incurred by reason of such breach,
?ncluding the cost of recovering the Demised Premises, and
including the worth at the time of such termination of the
excess, if any, of the amount of rent and charges equivalent
to rent reserved in this Lease for the remainder of the
stated term over the then reasonable rental value of the
Demised Premises for the remainder of the stated term, all
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. _�.�::�:a.._..»_�, _
�� which amount shall be immeidately due and payable from
Lessee to Lessor, but not including funds paid against
mortgage balances.
Lessee shall pay all of Lessor's reasonable costs,
charge and expenses, including the fees of counsel, agents
and other retained by Lessor, incurred in enforcing any of
�essee's ohligations under this Lease or incutred by Lesso[
in any litiqar.ion, negotiation or transaction in which
Lessee causes Lessor, without Lessor's fault, to become
involved or concerned.
15. LESSOR'S RIGHT TO PERFORM LESSEE'S DUTIES AND
OBLIGATZONS. In the event Lessee fails to perfo[m any of its
duties or obligations under this:Lease, Lessor may (but is not
�bligated to) perform the same after giving thirty (30) days
not ce to Lessee. Any amounts reasonably expended by Lessor
:n so oerforming shall be treated as additional rent due from
Lessee with interest at the rate of the prime rate in effect plus
two percent (28) to be paid within fifteen (15) days of written
demand therefore. Prime rate shall be the prime rate then
,,:kt:rl
charged by the £�r Bank of New York.
15. ACCOUNTING. LESSEE shall keep its books of account in
accc,rdance with the Uniform Systems of P.ccounts for Hotels
3dopr_ed by The American Hotel associati�n of the United States
and Canada as set forth in the book entitled Uniform Systen of-
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,
Accounts for Hotels, as revised from time to time, and ahall
submit quarterly reports to LESSOR within forty-five (45) days
fn'_lowing each quarter. LESSEE shall make available to LESSOR
such of LESSEE's books of account as may be reasonably cequired
by LESSOR to verify the amounts due from time to time under
�arag�aph 3 above. LESSEE shall cause to have prepared at its
expense an annual statement of its accounts by a certified public
accounting firm and such statement shall be available for review
by LESSOR or its agent at the business office of the LESSEE
within ninety (90) days after the expiration of each Lease year.
17. LESSOR'S RIGHT OF INSPECTZON. LESSEE shall permit
LESSOR and its agency or representatives to enter the Demised
Preinises at all reasonable times for the purpose of inspectinq
�he same or making any necessary repairs thereto and perfocming
any w�rk therein that may be necessary by reason of LESSEE's
failure to make any such repairs or pecform any such vork,
,��, �
although LESSOR shall have no obligation to do any of the above.
LES:.OR sh-311 have the right to enter the Demised Premises at
eil reasonable times during usual business k�urs for the purpose
:: sho�a?ng the same to prospective purchasers or mortgages
�nrreoP, and at any time dnring usual business horus within
eighteen (18) months prior to the expication of the Lease term
f.�r the purpose of showing the same to prospective purchasers or
lessees.
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18. ESTOPPEL CERTIFICATES. The parties mutually agree that
at any time and focm time to time upon written request of the
other party and at the reasonable cost and expense of the party
zequesting the same, LESSOR or LESSEE, as the case may be, vill
execute, acknowledge and deliver to the othec party a certificate
evidencing whether:
(a) the Lease is in full force and effect;
(b) the Lease has been modified or amended in any respect
and submitting copies of such modifications or
amendments, if any; and
(c� there are any existing defaults thereunder te the
knowledge of the party executing the certificate and
specifying the nature of such defaults, it any.
19. EASEMENTS AND APPROVALS. LESSOR shall execute any and
�11 instruments that may reasonably be required in connection
with the granting of easements under, over and across the Demised
�remises for installation of water, gas, steam, electricity,
t•�'_ephone, sewerage and storm drainaqe to the various utility
companies, �vithout expense to LESSOR, provided that such
easements are necessary for the conduct of the business of the
HOTEL.
LESSOR shall cooperate with LESSEE, at no expense to LESSOR,
to obtain any governmental approvals relating to LESSEE's
intended development and use o£ the Demised Premiats and LBSSBB
may proceed in LESSOR's name, at LESSEE's sole cost and expense,
t� obtain such approvals.
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20. HOLDOVER. If LESSEE retains possession of the Demised
Premises or any part thereof after the expiration of the Lease
term, in addition to its other rights and remedies provided by
law, LESSOR may, in an election expressed in a written notice to
L�SSEE given within thirty (30) days of said holdinq over and not
otherwise, tceat such retention of possession as constituting a
cenewal of this Lease, and so b:nd LESSEE on a year-to-year basis
ro the same terms and conditions as expressed herein, and the
yearly rental provided in this Lease. The provisiona of this
Paragraph do not exclude LESSOR's right of re-entry o[ any other
right or remedy provided or allowed by law or this Lease.
21. SIGNS. LESSEE may, at its sole cost and expense, at
any t:me and from time to time, pl�ce or permit to be placed
signs and advertising matter in, on or about the Demised Premises
and Hotek, including its roof, and to remove them or permit them
to be removed, provided the same is done in full com l�ia�nce „�� ,
. . . . � "..c.r'.n .. . . ,.
all requirements of law pertaining thereto. LESSOR shall execute
any applications and consents that are required by governmental
authorities and no such applications or consent shall impose any
liability on LESSOR by virtue of the erection or maintenance of
anp of �aid signs or advertisements and LESSEE covenants and
ayrees to indemnify and save Lessor harmless from any damages or
injur:es that may be sustained by anyone by reason theceof.
��
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22 MISCELLANEOUS PROVISIONS.
A. Notice.
all notices permitted or required by this Lease must be
given in writing an shall be considered given forty-eight (48)
�.:urs after deposit in the United States mail in a sealed
�nvelope, postage and postal charges prepaid, certified mail,
-eturn ceceipt requested, addressed by name and address to the
par*yo ur person intended as follows:
Notice to Lessor�
City Manager
City of Oshkosh
215 Church Avenue
�shkosh, Wisconsin
Notice of Lessee:
54901
Oshkosh Centre Hotel Venture
2 N. Riverside Pla2a, Suite 600
Chicago, I1linois 60606
.
..... :,.:,;�: - _�:�` • a --..
Either party may, by notice given at any time or fxcmttitre
time, require subsequent notices to be given to another
ind:vidual person, or to a different address, or both.
B. Entire Agreement.
Th?s Lease contains the entire agreement between the
parties. No promise, representation, warranty or covenant rtot
in^iuded in this Lease has been or is re:ied on py either party.
.4ny changes, modifications, additions or amendmer.ts he[eto must
oe ir, .: w�iting signed by both parties h�rein.
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C. Severability. The invalidity or illegality of any
prov:sion of this Lease as to any circumstance or person shall
not affect the remainder of this Lease or the applicability of
the provision involved to other circumstances or persons to the
i111=st extent permitted by law.
D. Successors.
Subject to the provisions in this Lease on assignment and
subletting, each and all of the covenants and conditions of this
Lese shall be binding on and shall inure to the benefit of the
::zirs, successors, executors, administrators, assigns and
personal representatives of the respective parties.
E. Governing Law.
This Lease shall be governed by and construed in accordance
w�th the laws of �the State of Wisconsin.
F, Captions.
The captions of this �ease are for convenience of reference
only and in no way define, limit, or describe the scope or intent
oF this Lease or in any way affect this Lease.
G. Approval, Consnet or Judqment.
Any approval, consent or judgment oermitted or required to
be made under this Lease by LESSOR or LESSEE shall not be
unreasonably made, withheld or delayed.
H. Reinstatement and Waiver.
No waiver of any covenant or condition contained in this
Lease oc of any breach of any such covenant or condition shall
constitute a waiver of any subsequent breach of such covenant
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_ _ _ _ _ _ _ _ _ ,m_s.....�_.__ _ _ .
� �.
.,
or condition by either party, or justify or authorize the
nonobservance of any other occasion of the same or any otheC
covenant or condition hereof by either party. No receipt of
money by LESSOR from LESSEE after the termination of this Lease
or ?fter the service of any notice after the commencement of any
suit, or after final judqment for possession of the Demised
Premises shall reinstate, continue or extend the Lease term or
af£ect any such notice, demand oc suit.
23, EXPIRATION AND TERMStdATION.
At the expiration or earlier termination of the Lease term,
LESSEE shall surrender to LESSOR the possession of the Demised
Premises. All property that LESSEE is required to surrender shall
become LESSOR's at te[mination of this Lease. All property that
I.ESSEE is not required to surrender but that LESSEE does abandon
shall, at LESSOR's election, become LESSOR's prope[ty at
cecmination.
<*.�«a+q„«""^_
If LESSEE fails to Sur[ender the Demised Premises at the
expiration or soonec termination of this Lease, LESSEE shall
defend and indemnify LESSOR from all liability and expense
resulting from the delay or failure to su:render, including,
withou* limitation, claims made by any succeeding lessee founded
on or resulting from LESSEE's failure to surrender.
This Lease shall terminate without fu�ther r,otice at
=xpiration of the Lease term. Any holding cver by LESSEE after
cxpirat.on shall not constitute a renewal or extension or give
L�SSEE ar.y rights in or to the Demised Premzses �xcept as
;ci�erwi,e expressly provided in this Lease.
- 31 -
.
�. ,
2� NON-MERGE:�.
There shall be no merger of this Lease, or of the leasehold
estat= created by this Lease, with the fee estate in the Demised
Premises by �eason of the fact that this Lease, the leasehold
est:`= ^reated by this Lease, or any interest in this Lease or in
any such leasehold es�ate, may be held, directly or indizectly,
by or [or the account of any person who.shall own the fee estate
in the Demised Premises or any interest in such iee estate, and
no such me�ger shal: occur unless and unr.il all persons at the
�ime naving an interest in the fee estate in the Demised Premises
and all persons (including any leasehold mortgages) having an
nterest in this Lease, or in the leasehold estate created by
this Lease, shall join in a written instrument effecting such
mergec and shall duly record the same.
25. RECORDATION.
This lease shall not be recorded. Only an abstract or short
torm of this Lease shall be recorded. The parties shall execute
the short form or.abstract inform and substance as required by a
�itle insurance company insuring, LESSEE's leasehold estate or the
r.te.est of a mortgagee, and sufficient to give const�uctive
notice of the Lease to subsequent purchasers and mortgagees.
Executed in duplicate original on the day and year first
above set fotth.
CITY OF OSHKOSH
Attest:
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OSHKOSH CENTRE HOTEL VENTURE
Attest:
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