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HomeMy WebLinkAbout33129 / 84-01December 13, 1984 (CARRIED LOST LAID OVER PURPOSE: INITIATED BY: #1 RESOLUTION WITHDRAWN APPROVE PARKING AGREEMENT FOR OSHKOSH CENTRE CITY ADMINISTRATION � BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached Parking Agreement for the Oshkosh Centre Redevelopment Project is hereby approved and the proper City officials are hereby directed and authorized to execute the appropriate documents therefor. ISUB�ITTED HY APPRCVED ) 0 12/13/84 PARKING AGREEMENT This Parking Agreement made this day of December, 1984 by and betwen the City of Oshkosh, Wisconsin, a municipal corporation (hereinafter "city"), and the Oshkosh Centre Hotel Venture, a joint venture comprised of OHV Associates, an Zllinois limited partnership, and A-K Company, a Wisconsin sole proprietorshio {hereznafter "QCHV") WITNESSETH: WHEREAS, City has acquired from Park Plaza of Oshkosh, Inc. (he�einafter "Plaza") a fee simple interest to the air rights over a surface parking lot located in Oshkosh, Wisconsin (hereinafter "Air Rights") the legal description of which is attached hereto as Exhibit A, and then lease those Air Rights to OCHV; and WHEREAS, OCHV intends to construct a two-story parking structure with spaces to accomodate 157 automobiles in the space included within the Air Rights (hereinaftec "Parking Structure"); and WHEREAS, OCHV will construct a Hotel on land adjacent to the Parking Structure; and WHEREAS, City and OCHV wish to provide for the use of the Parking Structure by guests of the Hotel and for maintenance and operation of the Parking Structure, (� a NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledqed, the parties hereto agree as follows: 1. Leased Premises. City hereby agrees to lease to OCHV Air Rights for a term of 20 years from the Opening Date of the Hotel, as that term is defined in the Management Agreement between OCHV and the Radisson Hotel Corporation dated , 1984, a copy of which has been or will be provided to the City and which is incorporated herein by reference. OCHV agrees to pay to City an annual rental of one dollar per year, due and payable on the first business day of each year of the term of the lease. For the purposes of this Agreement, the Air Rights shall include any easements now owned or hereafter acquired by City for the purpose of placing the footings of the Parking Structure on the surface, land beneath the Parking Structure and for gaininq access to the Parking Structure over adjacent improvements. By this lease of Air Rights, OCHV assumes no contractual obligations which the City has to Plaza as a result of the City's acquisition of such Air Rights. 2. Construction of Parking Structure. OCHV aqrees to construct a two-story parking structure, with space for the parking of 157 automobiles, in accordance with the plans and specifications which have previously been provided to City and which are incorporated herein by reference. Said Parking Structure shall be constructed at a cost of approximately 5900,000.00, financed by a loan of $900,000 from City to OCHV at 11� simple interest for a term of 30 years, in accordance with �rban Development Action Grant No. B-83-AA-55-0022, as amended, and the loan documents between City and OCHV evidencing said loan. OCHV shall be responsible for designating parking spaces within the Packing Structure, includinq painting stripes to delineate spaces and providing bumpers, where appropriate. 3. Sublease of Parking Structure. Upon completion of construction of the Parking Structure, as certified by the architect for the project, OCHV shall sublease the Parking Structure (but not the Air Rights) back to the City for a term to begin on that date of said completion and expiring upon the expiration of the underlying lease of the Air Rights from City to OCHV. City shall pay an annual r�ntal of one dollar to OCHV during the term of the sublease, and during the remaining term of this Agreement, due and payable on the first business day of each year of the term of the lease. During the term of the sublease, and durinq the remaining term of this Agreement, City shall operate the Parking Structure in accordance with the Operation Plan set forth in Exhibit B to this agreement. The sublease is intended to be made on a net net basis, with City paying for all expenses associated with the possession, operation, and security of the Parking Structure, including without limitation, all insucance premiums, all real and personal property taxes, all utility expenses, and all expenses of maintenance, repair, or restoration of the Parking Structure or any fixture or easement appurtenant thereto, whether structural or nonstrucCural, and necessary security. 9. Purchase and Sale Agreement - Upon the expiration of the Iease and the sublease, OCHV agrees to sell the Parking Structure to the City, and the City agrees to purchase the same from OCHV, for a price of one dollar. Conveyance shall take place on the day following the expiration of the lease and sublease and shall be made in the form of a quit claim deed of all of OCHV's interest in the Air Rights and Parking Structure. 5. Term. The term of this Parking Agreement sha11 run for 76 years, beginning 6. Taxes. City shall pay all real estate and special assessment taxes and all other taxes of eny kind levied against the Parking Structure and the underlying Air Rights, if any, during the term of the Parking Structure sublease. 7. Mair.2tGII�IIC2. C:�}' Sriail �E ZBSr075i�i2� HL 105 SGle expense, for the operation and management of the Parking Structure consistent with the operation and management of the Hotel, and for maintenance, repair and restoration, if necessary, of the Parking Structure consistent with the maintenance, appearance, and architectural qualities of the Hotel. OCHV shall have no obligation with regard to the aforementioned matters after the construction of the Parking Structure is completed and the Parking Structure is subleased to the City. City, at its sole expense, shall comply with all local, state, and federal ordinances, laws, rules, and regulations with regard to operation and maintenance of the Parking Structure, including, without limitation, building codes. 8. Assignment of this Agreement. OCHV may, at any time, transfer its interest under this Agreement to any person or entity, successor, heir or asignee at its discretion, and shall have the same right. with respact to a partial transfer or sale. In such event, the transferee oL- the interest of OCHV or its assignee shall be required to abide by and perform all of the covenants and obligations of OCHV hereunder and transEeror shall thereby be relieved of further liability here�nder. City's interest under this Parking Agreement may be assigned, transferred, or conveyed subject to the terms of this Agreement, but in such event the transferee, assignee, or grantee of the City shall be required to enter into an agreement with OCHV or its assiqnee contracting to be governed by all relevant provisions of this Agreement and to perform all of the covenants and obligations of City hereunder. 9. Liens and Encumbrances. It is the intent of the parties that this agreement shall be prior and paramount to all liens and encumbrances, but OCHV agrees that it will subordinate its interest hereunder to any future mortgagee of the City or its successors or assigns provided that such mortgagee agrees to enter into a subordination-nondisturbance-attornment agreement whereby OCHV's rights hereunder will not be disturbed if OCHV is not in material breach of this Agreement and continues to materially perform hereunder. 10. Signs. The location and design of all signs to be placed on or adjacent to the Parking Structure, with regard to the Parkinq Structure, shall be subject to prior review and recommendation by OCHV's architect. All signs shall be repaired and maintained in such a condition as to keep them at all times in a neat and attractive condition, consistent with any signs displayed on or adjacent to the Hotel. 11. Insurance. City shall maintain throu9hout the term of this Agreement, at its sole cost and expense, fire and extended coverage insurance with respect to the Parking Structure, and comprehensive general liability insurance applicable to the Parking Structure in such amounts as are customary in the Parking Structure business, with OCHV named as an additional insured in such liability policy. Upon the written request of OCHV, City aqrees to provide OCHV with certificates of insurance showing policies from insurance companies licensed to do business in the State of Wisconsin, with coverages as indicated above, and showing that such policies are noncancellable except upon ten days prior notice in writing to City and OCHV. The policies required hereunder may be evidenced by blanket insurance policies covering other property owned by City. 12. Damage or Destruction of Parking Structure. If, at any time while this Agreement or any extension or renewal hereof is in effect, the Parking Structure or any part thereof shall be damaged or destroyed by fire or other casualty of any kind or nature, or razed, City, at its sole cost and expense and whether or not the insurance proceeds, if any, shall be sufficient for the purpose, shall proceed with reasonable diligence to repair, alter, restore, replace, or rebuild the Parking Strusture as nearly as possible to its value, condition, architectural character, and utility immediately prior to such damage or destruction, subject to such changes or alterations as City may elect to make, provided such changes or alternations do not diminish the amount and convenience of parking available hereunder to OCHV or the architectural character of the Parking Structure. Under no circumstances shall OCHV be required to contribute to the cost of such rebuilding or restoration or alteration. During the time, if any, that the premises may be unusable by OCHV due to such casualty or restoration, City shall endeavor to provide alternate parking spaces for the use of the Hotel's overnight guests. 13. Default. In the event that either party hereto shall default in the performance of any of the aqreements, conditions, covenants, or terms hereof, the other party may, after ten days written notice to such party, cure such default on the account of e 0 the other, and any amount paid or any expense or liability incurred by such party shall be added to or subtracted from the obligations of OCHV hereunder as appropriate. In the event that OCHV performs such obligations of City and the performance thereof costs more than the amount due or to become due hereunder in the following month, City shall immediately pay such additional amount to OCHV upon written demand therefor. In lieu of or in addition to curing such default, and in the event such default shall continue for a period fo 30 days after written notice thereof by the other party, the nondefaulting party shall be entitled to bring an action for specific performance hereof or for damages and shall have any and all other rights or relief which the nondefaulting party may be entitled to by law or pursuant to this Agreement. Further, if such default shall continue for a period of 30 days after written notice, the nondefaulting party may forthwith terminate this Agreement and all of the terms and conditions hereunder without further notice to the defaulting party, provided that such default is substantial and material to this Agreement. 14. Bankruptcy or Insolvency. In the event of the bankruptcy of City or its assigns or the assignment by City of all or substantially all of its assets for the benefit of creditors, this Agreement and all its covenants and conditions shall remain enfocceable and unimpaired except that OCHV may, at its sole option, terminate this Agreement upon five days written notice to City or its assigns. If, as a result of bankruptcy, City's interest in this Agreement is reposed in a trustee in bankruptcy or another third party, or in the event of an assignment for the benefit of creditors, this Agreement is assigned to a receiver or other trustee, such assignment shall, if allowed by law, have no effect upon this Agreement and in particular shall not effect the right of guests of the Hotel to continue to park in the Parking Structure as provided in this Agreement. 15. Binding Effect. The terms and conditions of this Agreement shall be binding upon and inure to the benefit of the pa[ties hereto, thei[ respective successors, transferees. grantees, assigns, heirs, and personal representatives (in the case of assigns, only to the extent assignment is permitted hereunder). 16. Entire A�creement. This writing constitutes the entire agreement between the parties hereto, with cegard to the subject matter of this Agreement, and it is intended that this Agreement integrates and incorporates all previous and concurrent negotiations and agreements between the parties, and may not be amended or altered or modified in any manner except in writing signed by both parties. 17. Recording. The parties hereCo agree that this Agreement, or a short form recordable agraement inform approved by attorneys for both parties, may be recorded, at the request of either party. 17A. AVAILABILTTY. 7he parking structure, which is the subjc�t matter of this lease, shall be available to hotel guests, 24 hours a day, seven days a week. 18. Applicable Law. This Agreement shall be governed by and interpreted under the las•s of the State of Wisconsin. 19. UDAG Agreement Prevails. Should any provision of this Agreement be inconsistent with provisions of Urban Development Action Grant No. B-83-AA-55-0022, the provisions of said Grant shall control. 20. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable or void or contcary to public policy or to law, such provisions shall be ineffective only to the extent of such invalidity or unenforceability, without invalidating the remainder of this Agreement or any portion theceof which is not specifically affected by the determination of such court. 21. Reference to UDAG Grant. The parties hereto acknowledge that this Agreement fulfills the obligation of said parties to enter into a parking structure agraement, as specified in Section IIZ of Exhibit E of Urban Development Action Grant No. B-83-AA-55-0022. IN WITNESS WHEREC.°, the parties hereto have executed the foregoing Agreement on the day and year first set forth above. (Affix Corporate Seal Here) CITY OF OSHKOSH, a municipal corporation By: ATTEST: City bianager , City Clerk tl OSHKOSH CENTRE HOTEL VENTURE, a joint venture (Affix Corporate Seal Here) By: ATTEST: STATE OF WISCONSIN) ) ss, COUNTY) Personally came before me this day of November, 1983, and , known to me to be the Mayor and City Clerk of the City of Oshkosh, Wisconsin, respectively, and acknowledged that they executed the foregoing instrument on behalf_ of said City and by its authority. Notary Public, , County, Wisconsin My commision: STATE OF WISCONSIN) ) ss. COUNTY ) Personally came before me this day of , 19 , , known to me to be the Oshkosh Centre Hotel Venture, respectively, and acknowledged that they executed the foregoing instrument on behalf of said corporation and by its authority. This Agreement drafted by: Notary Public, County, Wisconsin My commission: EXHIBIT A The leqal description of the Air Rights, as described in the Agreement, is as follows: EXKIBZT B PROCEDURES BY WHICH CITY SHALL OPERATE THE PARKING STRUCTURE Dnring the term of the Agreement to which this Exhibit is attached, including the term of the sublease of the premises from OCHV to the City, City shall operate the Parking Structure in accordance with the following terms: 1. Parking Meters. City, at its sole expense, shall install a parking meter at each of the 157 spaces in the Parkinq Structure, Said meters shall be adjusted to provide for parking rates eguivalent to not less than five times the hourly rate of parking which is generally available at other metered parking areas in the City of Oshkosh. 2.. Parking Passes. OCHV ar operators of the Hotel shall be entitled to purchase parking passes from the City for use by guests oi the Hotel. Such passes shall be dated and shall vary in color from day to day or shall involve a similar system for monitoring use. A Hotel guest shall be entitled to purchase such a parking pass from OCHV ar the operator of the Hotel and to display said pass so it is visible from the outside o£ the automobile. Such display of a parking pass shall entitle the guest to park in the Parking Structure on the day for which the pass is dated, without need to put money in the parking meter on that day. City agrees that its employees shall not issue a parking violation ticket to any automobile which is parking within a designated space and which properly displays a current parking pass. The initial price which OCHV or the operator of the Hotel must pay to the City for each parking pass (hereinafter the "Daily Pass Rate") shall be $.80 per day. OCHV or the operator of the Hotel may resell said passes to Hotel guests at higher rates and any difference shall be the sole property of OCHV or the operator of the Hotel. City shall make available to OCHV or the op2rator of the Hotel such quantity of parking passes as requested by OCHV or the operator of the Hotel. 3. Change of Operation. In the event that OCHV at its sole option, determines that a different system for operation of the Parking Structure would be more beneficial to operation of the Hotel, OCHV may designate a new system for operation of the Parking Structure and City agrees to implement such a system, provided that OCHV shall be required to pay for the expense of altering the Parking Structure to accomodate the new system and installing any new fixtures required by the system. The City shall not have any right to materially change the operation of the Parking Structure or to change the rate which it charges for metered parking or parking passes without the prior written consent of OCHV. 4. Payment For Parking Passes. On the first business day of each month during the operation of the Hotel, OCHV or the operator of the Hotel shall purchase from the City the number of parking passes which it anticipates will meet its needs for the ,� coming month. OCHV or the operator of the Hotel shall pay for said passes upon delivery. If additional passes are needed by the Hotel during that month, OCHV or the Hotel operator may request such additional passes and submit payment to the City and the City then shall provide said additional passes. If the parking passes purchased from the City at the beginning of the month exceed the needs of the Hotel for the month, then OCHV or the hotel operator may return unused passes to the City at the end of the month for a credit to be applied to the payment for passes for the following month. 5. Adjustments to DailY Pass Rates. The City may adjust the Daily Pass Rate at any time, upon at least sixty days wcitten notice to OCHV and the operator of the Hotel; PROVIDED, HOWEVER, that such rate shall not exceed the lesser of eight times the hourly rate of parking which is generally available at other metered parking areas in the City of Oshkosh or two percent of the average daily room rate of the Hotel. � � d r• m ct o �c � m c� � � F' (D N � �3 x� � � N � � � � �� �H �H �°z cy .. ad �c o m rv m y � rooa y m �o o � o �r�s m o 0 o m c cr]'N �ro m w � �s �x �s r• m � � � 9 �� C � fD N F� � O (D b � � ct N \ � c+ � m � u � �`s .'? .?, t�`1 ("�: