HomeMy WebLinkAboutEscrow and Disbursing Agreement/Schmitt Title-1118 S Main St 2017 ESCROW & DISBURSING AGREEMENT
TO: SCHMITT TITLE, LLC, Escrow Agent:
Pursuant to a Settlement Agreement and Unlimited Mutual Release ("the Agreement")
dated December 16, 2015 by and between the City of Oshkosh, Wisconsin(the"City), FirstMerit
Bank, N.A., Oshkosh Industries, Inc., Oshkosh Furniture, LLC and Martin Cowie (the "Other
Parties'), the City will deposit $307,633,00 representing the amount of identified expenses (the
"Expense Funds") that the City is currently contractually responsible to pay for remediation
expenses and other costs stated in said Agreement and known to exist in order to allow for the
orderly public development of the real estate located at 1118 South Main Street, Oshkosh,
Wisconsin (the "Property") described in the Agreement. The Agreement is attached hereto as
Exhibit A.
The City will deposit the Expense Funds into an escrow account held in the name of the
City, for the current benefit of the City to pay for existing, identified expenses to be paid to
benefit the Property by eliminating the declared blighted state of the Property,pursuant to the
Agreement and bringing the property to a commercially acceptable developable state for the
benefit of the City.
The Agreement pertains to Property commonly known as 1118 South Main Street,
Oshkosh, Wisconsin.
It is expected the Wisconsin Economic Development Corporation (the "WEDC") will
approve two (2) January 29, 2016 City of Oshkosh Grant applications for the project (the
"Project"), described in Exhibit A. A WEDC program offers grants to municipalities to
reimburse authorized expenses to pay for, as in this instance, the City's contractual. share of the
major demolition expenses on the Property for the Project. Upon WEDC grant approval, the
Other Parties must fund Five Hundred and Forty-Two Thousand Six Hundred Thirty-Four
Dollars and No 00/100 Dollars ($542,634.00) into escrow. Upon WEDC grant approval the City
must prefund Three Hundred Seven Thousand Six Hundred Thirty-Three and 00/100 Dollars
($307,633.00) into escrow. The City will be reimbursed from WEDC grant funds after
authorized Project costs are approved by WEDC. The cost'of the demolition contracts funded
by the contractual obligations of the parties to the Agreement is Eight Hundred Fifty Thousand
Two Hundred Sixty Seven and No 00/100 Dollars (up to $850,267.00) (Exhibit A).
As to this ESCROW & DISBURSING AGREEMENT the in addition to its
December 16, 2015 contractual obligation stated in the Agreement to pay City, share of the major
demolition expenses on the Property, assumed all current, necessary and reasonable expenses
applicable to the Property that are beyond the amounts being funded by the Agreement in order
to remove the remaining blighting conditions upon the Property, after removal of the structures,
by completing demolition and removal of foundations and slabs from the property, remediate
environmental concerns and put the property into a developable state. The identified necessary
1
and reasonable expenses applicable to the Property include, but are not limited to, removal of
concrete slabs, Utility Abandonment, Well Capping, Foundation Removal, Land surveying and
land division costs, Closing Costs, Reimbursement of Unpaid Real Estate Taxes, Reimbursement
of Unpaid Charges/Special Assessments. Such expense will exceed the$307,633.00.
During the time the Expense Funds are deposited in an escrow account involving this
ESCROW & DISBURSING AGREEMENT, you are authorized and directed to transfer the
funds, in their entirety, either to a separate escrow account of the City and the Other Parties,
directly to vendors upon presentation of approved invoices from the City, or to the City upon
presentation by the City of proof the WEDC grants were denied or unacceptable in amount
eligible to the City. Any transfer of Expense Funds at the request of the City will be at the sole
discretion of the City. You are not authorized to pay, transfer, or disburse the Expense Funds to
any other person, entity, or account, except as specifically described in this ESCROW &
DISBURSING AGREEMENT.
The terms of this ESCROW & DISBURSING AGREEMENT shall apply to the Expense
Funds deposited in an escrow account involving the City.
You are authorized and directed to disburse the Expense Funds deposited hereunder
pursuant to statements of amounts due as approved by the City in accordance with the terms of
this ESCROW & DISBURSING AGREEMENT. 'All disbursements of Expense Funds are to be
made in accordance with the terms and conditions hereinafter set forth.
1. The amount of the $307,633.00 of the Expense Funds will be spent on approved
costs associated with remediating of the Property as shown in the two contracts attached to the
Agreement. In the unlikely event that there are any funds not disbursed by Escrow Agent from
the $307,633.00 funded herein by the City for the contractually approved remediation activities,
the excess funds will be returned to the City and used by the City to pay for the additional
identified expenses incurred to bring the Property to a developmental stage.
2. All expenditures and requests to utilize the Expense Funds must be approved in
writing prior to payment or release by the Escrow Agent. The City will respond to any request
for approval of a payment within 5 business days. Approvals shall be at the City's discretion.
3. All disbursements will be made by the Escrow Agent as directed in the applicable
request for payment. The Escrow Agent shall obtain lien waivers from all contractors paid from
the Expense Funds and provide copies the City.
4. Only "signatories to this Agreement shall have the right to look to the Escrow
Agent for any disbursement, and there shall be no disbursements pursuant to a third party
beneficiary or other legal theory, and the Escrow Agent owes no duty to any such third party to
make any disbursement.
2
5. The functions and duties assumed by Escrow Agent include only those described in
this Agreement, and the Escrow Agent is not obligated to act except in accordance with the terms
and conditions of this Agreement. Escrow Agent does not insure that the Project will be
completed, nor does it insure that the Project, when completed, will be in accordance with plans
and specification, nor that sufficient funds will be available for completion.
7. All charges for Escrow Agent's services hereunder are to the responsibility of the
City.
8. General Conditions:
(a) At any time prior to the disbursement of any funds by the Escrow Agent,
the Escrow Agent reserves the right to decline the commencement of any disbursements
of funds, whereupon Escrow Agent shall return to the City any documents in its
possession relating to such requests for payment from the Expense Funds and the return
all Expense Funds received by it. Commencement of disbursement makes this ESCROW
& DISBURSING AGREEMENT effective as to all funds received and disbursed on the
Project.
(b) Escrow Agent has no liability for loss caused by an error in the
certification furnished it hereunder as to work in place.
(c) Escrow Agent shall not be responsible for any Ioss of documents or funds
while such documents or funds are not in the Escrow Agent's custody. Documents or
funds deposited in the United States mail shall not be construed as being in custody of
Escrow Agent.
(d) In the event that a default is declared by the City as to any requested
payment, Escrow Agent shall immediately discontinue further disbursements under this
ESCROW & DISBURSING AGREEMENT upon receiving such notice of default from
the City.
(e) The City acknowledges and agrees that no interest will accrue for the
benefit of it on any funds held in escrow by the Escrow Agent pursuant to this ESCROW
& DISBURSING AGREEMENT. In addition to the-fees and charges payable to the
Escrow Agent for services provided pursuant to this ESCROW & DISBURSING
AGREEMENT, the Escrow Agent may receive ancillary benefits such as interest from
the use of the funds held in escrow.
(g) Escrow Agent will not be responsible for any inspections prior to
disbursement of funds.
IN WITNESS WHEREOF, the parties have executed this ESCROW&DISBURSING
AGREEMENT as of the day of , 2016.
3
5. The functions and duties assumed by Escrow Agent include only those described in
this Agreement, and the Escrow Agent is not obligated to act except in accordance with the terms
and conditions of this Agreement. Escrow Agent does not insure that the Project will be
completed, nor does it insure that the Project, when completed, will be in accordance with plans
and specification, nor that sufficient funds will be available for completion.
7. All charges for Escrow Agent's services hereunder are to the responsibility of the
City.
S. General Conditions:
(a) At any time prior to the disbursement of any funds by the Escrow Agent,
the Escrow Agent reserves the right to decline the commencement of any disbursements
of funds, whereupon Escrow Agent shall return to the City any documents in its
possession relating to such requests for payment from the Expense Funds and the return
all Expense Funds received by it. Commencement of disbursement makes this ESCROW
& DISBURSING AGREEMENT effective as to all funds received and disbursed on the
Project.
(b) Escrow Agent has no liability for loss caused by an error in the
certification furnished it hereunder as to work in place.
(c) Escrow Agent shall not be responsible for any loss of documents or funds
while such documents or funds are not in the Escrow Agent's custody. Documents or
funds deposited in the United States mail shall not be construed as being in custody of
Escrow Agent.
(d) In the event that a default is declared by the City as to any requested
payment, Escrow Agent shall immediately discontinue further disbursements under this.
ESCROW & DISBURSING AGREEMENT upon receiving such notice of default from
the City.
(e) The City acknowledges and agrees that no interest will accrue ,for the
benefit of it on any funds held in escrow by the Escrow Agent pursuant to this ESCROW
& DISBURSING AGREEMENT. In addition to the fees and charges payable to the
Escrow Agent for services provided pursuant .to this ESCROW & DISBURSING
AGREEMENT, the Escrow Agent may receive ancillary benefits such as interest from
the use of the funds held in escrow.
(g) Escrow Agent will not be responsible for any inspections prior to
disbursement of funds.
3
IN WITNESS WHEREOF, the parties hame e ecuted this ESCROW&DISBURSING
AGREEMENT as of the day of .: % , 2016.
CITY:
CITY OF OSHKOSH, WISCONSIN
00
By:
Mak A. Rohuoff, City Manager
F
Pamela R, Ubrig, City Cleric
By:
Trena Larson, rinancie Director
Approve as to form:
B
T A. Lore
nkQ,Ci A omey
ESCROW AGENT:
SCHMITT TITLE, LLC
By:
A4h 1CitTlJ-- S p
4
SETTLEMENT AGREEMENT AND UNLIMITED MUTUAL RELEASE
This SETTLEMENT AGREEMENT AND MUTUAL RELEASE (the
"Agreement") is entered into as of December 16, 2015 (the "Effective Date") among FirstMerit
Bank N.A., successor-by-merger to Citizens Bank,N.A. ("FirstMerit"), the City of Oshkosh (the
"City"), Oshkosh Industries, Inc. ("Oshkosh Industries"), Oshkosh Furniture, LLC ("Oshkosh
Furniture") and Martin Cowie ("Cowie").
WHEREAS, in and around 2007 and 2008, Citizens Bank,N.A. ("Citizens")
made certain loans to Oshkosh Industries, d/b/a The BuckStaff Company, and Oshkosh Furniture
("the Loans");
WHEREAS, the Loans were secured, inter alia,by a real estate mortgage (the
"Mortgage").on certain real property located at 1118 South Main Street, Oshkosh, Wisconsin,
Tax Key No. 903-0427 (the "Premises");
WHEREAS, the Loans were further secured by certain personal guarantees of
Cowie (the "Personal Guarantees");
WHEREAS, on or about February 14, 2011, Citizens commenced an action
against Oshkosh Industries, Oshkosh Furniture, Cowie and the United States Small Business
Administration seeking, among other things, foreclosure of the Mortgage on the Premises and
enforcement of the Personal Guarantees, Case No, 11-CV-260 (Winnebago County) (the
"Winnebago Action");
WHEREAS, on or about June 6, 2011, the Court entered an Order for Judgment
and Judgment in the Winnebago Action that, among other things, ordered foreclosure of the
Premises and entered judgment against Oshkosh Industries, Oshkosh Furniture, and Cowie (the
"Foreclosure Judgment");
WHEREAS, on or about October 4, 2011, pursuant to the Foreclosure Judgment,
the Winnebago County Sheriff conducted a sheriff's sale of the Premises at which Citizens was
the high bidder;
WHEREAS, on or about December 19, 2011, the Court in the Winnebago Action
entered an Order Confirming Sheriff"s Sales, Amending Judgment, Determining"Fair Value",
Establishing Amount of Indebtedness and Deficiency Judgment, which (a) acknowledged that
Citizens "has not applied for confirmation of the premises located at 1118 South Main Street,
Oshkosh, at this time"; and (b) established the deficiency judgment against Cowie in the amount
of$1,637,256.48 (the"Deficiency Judgment");
WHEREAS, neither Citizens nor FirstMerit ever confirmed the Sheriff's sale with
respect to the Premises or ever obtained title to the Premises;
WHEREAS, on or about March 15, 2013, the City filed an action against Citizens
in Winnebago County and, on or about April 24, 2013,the City filed an Amended Complaint
against FirstMerit, alleging that the Premises present a fire and safety hazard and constitute a
4834-8584-6050.5 L�xh i b It
public nuisance (the "Alleged Nuisance") and that Citizens had exercised dominion, possession
and control of the Premises, rendering FirstMerit liable to abate any nuisance and for additional
fines, penalties and costs under State law and the City's municipal code, Case No. 13-CV-350,
which allegations FirstMerit denied and denies;
WHEREAS, or about May 24, 2013, FirstMerit removed that action to federal
court, Ci of Oshkosh v. FirstMerit Bank N.A., Case No. 1:13-CV-580 (the "Action")
WHEREAS, on or about August 30, 2013, FirstMerit filed a Third-Party
Complaint against Oshkosh Industries, Oshkosh Furniture, and Cowie in the Action, seeping
indemnity and contribution with respect to any liability of FirstMerit to the City with respect to
the Premises;
WHEREAS,the Wisconsin Department of Natural Resources ("WDNR") and the
United States Environmental Protection Agency ("USEPA") have asserted or threatened to assert
claims against FirstMerit for past and future expenses, penalties, fines or other remedies incurred
or to be incurred in connection with alleged past, existing or future environmental conditions on,
associated with or related to the Premises (the "Claimed Environmental Conditions");
WHEREAS, it is the express and mutual intent of the parties that in consideration
of the contribution to be made by FirstMerit for demolition of the structures on the Premises
(with the exception of the footings, foundation and slab), FirstMerit shall have no further
responsibility, liability or obligation of any kind, whether now or in the future, with respect to
the Premises or the Claimed Environmental Conditions;
NOW, THEREFORE, in consideration of the agreements, promises, releases and
mutual covenants set forth in this Settlement Agreement and Mutual Release, the value and
receipt of which are hereby acknowledged by each of the parties, it is agreed as follows:
1. DIVISION AND CONVEYANCE OF PREMISES. In order to facilitate the
City's request for the Grant Funds,the Premises shall be divided into two parcels through use of
a certified survey map. Such division shall occur as soon as practicable after the Effective Date,
and Oshkosh Industries, Oshkosh Furniture and Cowie shall not impede or impair, and shall
provide reasonable access and cooperation to facilitate, division of the Premises. At Closing,
Oshkosh Industries, Oshkosh Furniture and Cowie shall convey or cause to be conveyed to the
City by warranty deed all right,title and interest in the Premises that any of them may hold for
the purpose of conveying fee title in the Premises to the City and the Premises shall be free and
clear of any non-property tax liens. The City shall be solely responsible for and pay (i) any
transfer tax with respect to such conveyances; (ii) all costs of title examination and title
insurance; and.(iii) all recording fees with respect to such conveyances. FirstMerit shall, at
Closing, convey to the City by quit claim deed and without warranty, all right, title and interest
in the Premises it may possess, if any; row vided, however, that FirstMerit denies that it now
holds or ever held title to the Premises and all parties acknowledge that such conveyance is made
at the City's request solely for the comfort and convenience of the City and shall not admit,
concede or otherwise evidence that FirstMerit held title to the Premises at any time.
2
4834-8584-6050.5
2. PARTIAL DEMOLITION OF PREMISES.
(a) Escrow Account and Escrow Agreement. Within thirty (30) days of the
Effective Date, the parties shall establish an escrow account (the "Escrow Account") at Bay Title
& Abstract, Inc., LLC (the "Escrow Agent") for the purpose of managing disbursements of funds
contributed by the Parties, as set forth herein,to accomplish partial demolition of the Premises.
The terms and conditions of the Escrow Account and duties of the Escrow Agent shall be set
forth in an escrow agreement to be promptly negotiated and executed by the parties (the "Escrow
Agreement"). The Escrow Agreement shall provide that the Escrow Agent shall make payments
from the Escrow Account only to the Demolition Contractors for the Demolition Services and for
fees payable to the Escrow Agent as provided in the Escrow Agreement, and not to any other
person or entity without the express written approval of all parties to the Escrow Agreement.
(b) Grant Funds; Payment to Escrow Account by City. Not later than
thirty (30) days after the Effective Date, the City shall apply for grants in an amount up to
THREE HUNDRED THOUSAND AND NO 001100 DOLLARS ($300,000.00) from the
Wisconsin Economic Development Corporation (the "Grant Funds"). Within ten (10) days of
receiving notification that the City's request for the Grant Funds has been approved, the City
shall prefund the Escrow Account in an amount equal to the amount of the Grant Funds. Upon
the receipt of invoices and other reasonable documentation demonstrating disbursements from
the Escrow Account to the Demolition Contractors for the Demolition Services, the City shall
seek reimbursement from the Wisconsin Economic Development Corporation through the Grant
Funds, and all reimbursements or payments from the Grant Funds shall be retained by and be the
sole property of the City. Furthermore, within ten (10) days of receiving notification that the
City's request for the Grant Funds has been approved,the City shall pay such additional sum as,
when added to the amount of the approved Grant Funds, shall equal not less than THREE
HUNDRED SEVEN THOUSAND SIX HUNDRED THIRTY-THREE AND 001100 DOLLARS
($307,633.00) to the Escrow Account in cash or immediately available funds.
(c) Payments to Escrow Account by FirstMerit and Cowie. Within ten
(10) days of receiving notification that the City's request for the Grant Funds has been approved
(i) FirstMerit shall pay the sum of FIVE HUNDRED AND THIRTY-TWO THOUSAND SIX
HUNDRED THIRTY-FOUR AND NO 001100 DOLLARS ($532,634.00) to the Escrow
Account in cash or immediately available funds; and (ii) Cowie shall cause the sum of TEN
THOUSAND AND NO 001100 DOLLARS ($10,000.00) to be paid to the Escrow Account in
cash or immediately available funds. Under no circumstances, and regardless of whether or not
the payments made by all Parties to the Escrow Account and the Grant Funds are sufficient to
complete the Demolition Services, shall FirstMerit be obligated to make any additional
contribution or payment of any kind to any person, including the Demolition Contractors,with
respect to the Demolition Services.
(d) Selection of Demolition Contractor. Oshkosh Furniture, or its designee,
shall enter into an agreement with Statewide Razing Inc. that is substantially in the form of
Exhibit A hereto and an agreement with Advanced Asbestos Removal, Inc. (with Statewide
Razing Inc., the "Demolition Contractors") that is substantially in the form of Exhibit B hereto
(Exhibits A and B, together, the"Demolition Contracts") pursuant to which the Demolition
Contractors shall perform the Demolition Services.
3
4834-8584-6050.5
(e) Demolition Services; Administration and Oversight of Demolition
Contracts. Cowie shall oversee and administer the partial demolition, removal and clean-up of
the structures and fixtures on the Premises and associated asbestos abatement (the"Demolition
Services") by the Demolition Contractors pursuant to the Demolition Contracts. Cowie shall
keep the City informed of the execution of the Demolition Contracts and provide, or cause the
Escrow Agent to provide, monthly updates.and progress payment invoices from the Demolition
Contractors reasonably sufficient for the City to seek reimbursement from the Grant Funds. The
Demolition Services shall not include demolition, removal or clean-up of the footings,
foundation or slab with respect to any structure on the Premises (the "Demolition Exclusions").
Any party (other than FirstMerit) may demolish, remove or clean-up the Demolition Exclusions
at any time, but any such demolition, removal or clean-up shall be at such party's sole expense,
and such party shall bear all responsibility and liability in connection with such actions,
including but not limited to, responsibility and liability for any environmental conditions or
issues created by or discovered through the actions of such party, its agents or contractors with
respect to the Demolition Exclusions. Other than the consideration expressly provided for in this
Agreement, neither Cowie, Oshkosh Industries, Oshkosh Furniture nor any other person shall
receive any compensation for any services rendered in connection with oversight and
administration of the Demolition Contracts. When performing the services required in this
Paragraph, Cowie shall be acting in his capacity as manager of Oshkosh Furniture.
(f) Payment for Demolition Services. Subject to the terms and conditions of
the Escrow Agreement and the Demolition Contracts, the Escrow Agent shall be directed to
make payments to the Demolition Contractors from the Escrow Account on behalf of and for the
benefit of Oshkosh Furniture in connection with the Demolition Services. To the extent that any
funds remain in the Escrow Account after full and final payment to the Demolition Contractors
for the Demolition Services and payment of any contractually-required fee to the Escrow Agent,
such excess funds shall be distributed to FirstMerit and the City as follows: (i) 64%to
FirstMerit and (ii) 36%to the City.
(g) Waiver of Permitting Fees or Other Charges by City. The City shall
waive or be solely responsible for payment of all permitting fees, inspection fees or any other
fees, charges or payments that the City may assess with respect to the Demolition Services under
applicable law.
(h) Responsibility for Real Estate Taxes; Liens The City shall take the
Premises subject to any and all real estate taxes and special assessments and no others (the
"Property Taxes and Assessments"). None of FirstMerit, Oshkosh Industries, Oshkosh Furniture
or Cowie shall have any liability or responsibility, or obligation to any taxing authority or the
City, with respect to the Property Taxes and Assessments. Notwithstanding the foregoing,
Oshkosh Industries, Oshkosh Furniture and Cowie (i) represent and warrant to the City that there
are no state or federal tax liens recorded against the Premises; and (ii) shall.remain responsible
for any such liens and the underlying tax obligations, if any. .
(i) Acknowledgment by City, Oshkosh Industries, Oshkosh Furniture
and Cowie. The City, Oshkosh Industries, Oshkosh Furniture and Cowie hereby expressly
acknowledge that (i) neither Citizens nor FirstMerit held fee title to the Premises at any time; (ii)
FirstMerit shall have no right, title or interest of any kind or nature in the Premises as of and after
4
4834-8584-6050.5
Effective Date; (iii) the actions and transactions required of FirstMerit pursuant to this
Agreement do not and shall not constitute or be claimed to constitute the exercise of possession,
dominion or control by FirstMerit with respect to the Premises on or after the Effective Date; and
(iv) the actions and transactions of the Demolition Contractors in connection with the Premises
do not and shall not constitute or be claimed to constitute the exercise of possession, dominion or
control by FirstMerit with respect to the Premises.
(j} Closing. The closing of the conveyance of the Premises to the City shall
take place at such place and time as the parties shall agree, but shall occur not later than
September 30, 2016 (the "Closing").
3. NO FURTHER NUISANCE CLAIM BY CITY, OSHKOSH INDUSTRIES,
OSHKOSH FURNITURE OR COWIE. The City, Oshkosh Industries, Oshkosh Furniture and
Cowie expressly acknowledge and agree that, other than its obligation to make payment to the
Escrow Account in the amount provided in Paragraph 2(c), FirstMerit shall have no further
responsibility, liability or obligation with respect to the Premises, the Demolition Contracts, the
Demolition Services, or the Demolition Exclusions and no further responsibility, Iiability or
obligation to abate, remediate or otherwise address any existing or future conditions in'
connection with the Premises or the Demolition Exclusions, including, but not limited to, any
condition alleged to constitute a nuisance. The City, Oshkosh Industries, Oshkosh Furniture and
Cowie further covenant that they will not assert any nuisance or other claim against FirstMerit
with respect to the Premises,the Demolition Contracts, the Demolition Services or the
Demolition Exclusions.
4. MUTUAL RELEASES.
(a) By FirstMerit. For good and valuable consideration,the sufficiency of
which is hereby acknowledged, FirstMerit for itself and its representatives, subsidiaries, affiliates,
successors, assigns and anyone else claiming under or through FirstMerit (the"FirstMerit
Releasors") hereby release and discharge the City, Oshkosh Industries, Oshkosh Furniture,
Cowie and their affiliates, parents, subsidiaries,heirs, and all of their respective officers, directors,
shareholders, agents,representatives, insurers, attorneys, members, predecessors, successors and
assigns (the"FirstMerit Releasees") of and from any and all debts,demands,actions, causes of
action, suits, damages, claims, grievances, charges and liabilities whatsoever of every name and
nature,whether based on tort, contract or other legal or equitable theories of recovery, and whether
known or unknown,asserted or unasserted,that the FirstMerit Releasors now have or ever had
against the FirstMerit Releasees arising, in whole or in part, from any and all matters,
transactions, acts, omissions or events occurring from the beginning of time up to and through
the Effective Date relating in any way to the Premises, including, but not limited to, all claims,
counterclaims or third-party claims that were asserted or could have been asserted in the
Winnebago Action or the Action and any and all claims relating to the Loans, the Mortgage, the
Alleged Nuisance,the Claimed Environmental Conditions, or the Property Taxes and
Assessments; pided, however, that nothing herein shall be construed to release the FirstMerit
roy
Releasees from (i) any representation, warranty, liability, duty or obligation expressly arising
under this Agreement or the Escrow Agreement; or (ii) the Deficiency Judgment (the treatment
of which is addressed exclusively in Paragraph 7). The FirstMerit Releasors hereby consciously
accept the risk that the scope of this release may include future damages, injuries, claims,
5
4834-8584-6054.5
obligations and liabilities that are presently unknown, unforeseen or not yet in existence and
consciously intend to release same. The FirstMerit Releasors hereby covenant not to sue the
FirstMerit Releasees, or any of them, with respect to any claim released pursuant to this
Paragraph 4(a). In the event that the FirstMerit Releasors breach such covenant, the FirstMerit
Releasees shall be entitled to recover all costs and expenses, including attorneys' fees, incurred
in connection with the defense of such claims.
(b) By Oshkosh Furniture, Oshkosh Industries and Cowie. For good and
valuable consideration,the sufficiency of which is hereby acknowledged, Oshkosh Industries,
Oshkosh Furniture and Cowie for themselves and their representatives, subsidiaries, affiliates,
heirs, successors, assigns and anyone else claiming under or through them (the"Cowie
Releasors") hereby release and discharge the City, FirstMerit and their affiliates, parents,
subsidiaries,heirs, and all of their respective officers, directors,shareholders, agents,
representatives, insurers,attorneys, members,predecessors,successors and assigns (the"Cowie
Releasees") of and from any and all debts, demands, actions, causes of action, suits, damages,
claims, grievances, charges and liabilities whatsoever of every name and nature, whether based on
tont, contract or other legal or equitable theories of recovery, and whether known or unknown,
asserted or unasserted,that the Cowie Releasors now have or ever had against the Cowie Releasees
arising, in whole or in part, from any and all matters, transactions, acts, omissions or events
occurring from the beginning of time up to and through the Effective Date relating in any way to
the Premises, including, but not limited to, all claims, counterclaims or third-party claims that
were asserted or could have been asserted in the Winnebago Action or the Action and any and all
claims relating to the Loans, the Mortgage, the Alleged Nuisance, the Claimed Environmental
Conditions, the Property Taxes and Assessments, or the Deficiency Judgment; ror� 'ided,
however, that nothing herein shall be construed to release the Cowie Releasees from any
representation, warranty, liability, duty or obligation expressly arising under this Agreement or
the Escrow Agreement. The Cowie Releasors hereby consciously accept the risk that the scope
of this release may include future damages, injuries, claims, obligations and liabilities that are
presently unknown, unforeseen or not yet in existence and consciously intend to release same.
The Cowie Releasors hereby covenant not to sue the Cowie Releasees, or any of them, with
respect to any claim released pursuant to this Paragraph 4(b). In the event that the Cowie
Releasors breach such covenant, the Cowie Releasees shall be entitled to recover all costs and
expenses, including attorneys' fees, incurred in connection with the defense of such claims.
(e) By City. For good and valuable consideration,the sufficiency of which is
hereby acknowledged, the City for itself and its representatives, subsidiaries, affiliates,
successors, assigns and anyone else claiming under or through the City (the"City Releasors")
hereby release and discharge FirstMerit, Oshkosh Industries, Oshkosh Furniture, Cowie and their
affiliates,parents, subsidiaries, heirs, and all of their respective officers, directors, shareholders,
agents,representatives, insurers, attorneys, members, predecessors, successors and assigns (the
"City Releasees") of and fi-orn any and all debts, demands, actions, causes of action, suits, damages,
claims, grievances,charges and liabilities whatsoever of every name and nature,whether based on
toi-t,contract or other legal or equitable theories of recovery, and whether known or unknown,
asserted or unasserted,that the City Releasors now have or ever had against the City Releasees
arising, in whole or in part, from any and all matters,transactions, acts, omissions or events
occurring from the beginning of time up to and through the Effective Date relating in any way to
the Premises, including, but not limited to, all claims, counterclaims or third-party claims that
6
4834-8584-6050.5
were asserted or could have been asserted in the Winnebago Action or the Action and any and all
claims relating to the Loans, the Mortgage, the Alleged Nuisance, the Claimed Environmental
Conditions, the Property Taxes and Assessments, or the Deficiency Judgment; provided,
however, that nothing herein shall be construed to release the City Releasees from any
representation, warranty, liability, duty or obligation expressly arising under this Agreement or
the Escrow Agreement. The City Releasors hereby consciously accept the risk that the scope of
this release may include future damages, injuries, claims, obligations and liabilities that are
presently unknown, unforeseen or not yet in existence and consciously intend to release same.
The City Releasors hereby covenant not to sue the City Releasees, or any of them, with respect
to any claim released pursuant to this Paragraph 4(c). In the event that the City Releasors breach
such covenant, the City Releasees shall be entitled to recover all costs and expenses, including
attorneys' fees, incurred in connection with the defense of such claims.
5. DISMISSAL OF ACTION. Within two (2) business days of Effective Date, the
parties shall file a joint, stipulated motion requesting dismissal of the Action without prejudice
and with each party bearing its own costs. Upon receipt by the City of notification that its
request for the Grant funds has been approved,the Action shall be deemed to have been
dismissed with prejudice without notice or action by any Party or the Court.
6. ASSUMPTION OF LIABILITIES AND INDEMNIFICATION OF
FIRSTMERIT BY CITY.
(a) Assumption. The City hereby assumes any and all liability and responsibility
of FirstMerit, if any, arising from or relating to (a) the Claimed Environmental Conditions; (b)
the existence or release of Hazardous Materials, known or unknown, on, under or migrating to or
from the Premises or violations of Environmental Laws arising out of conditions existing or
originating on the Premises prior to or as of the Closing, including, but not limited to any claims
asserted by the WDNR or the USEPA with respect to the Premises; (c) any and all claims
(including claims of nuisance) with respect to the Premises; (d) any and all claims arising from
or relating to the Demolition Exclusions; and (e) the Property Taxes and Assessments .
(collectively, the "Assumed Liabilities"). As used herein,the term (x) "Hazardous Materials"
means any hazardous or toxic substance, material or waste, including, but not limited to, those
substances, materials and'wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302) and amendments thereto, and such substances, materials
and wastes that are or become regulated under any applicable local, state or federal law,
including, but not limited to, petroleum and petroleum byproducts, asbestos and asbestos
containing materials and lead and lead based paint; and (y) "Environmental Laws" means all
applicable federal, state and local laws, regulations and ordinances pertaining to air and water
quality, Hazardous Materials (as herein defined), waste disposal, air emissions and other
environmental matters.
(b) Indemnification. The City shall indemnify and hold harmless FirstMerit
from and against any and all claims,judgments, damages, penalties, fines, costs, liabilities or
losses (including, without limitation, reasonable attorneys' fees, consultant fees and expert fees)
arising from or relating to the Assumed Liabilities.
7
4834-8584-6050.5
(c) City Authority. City hereby represents and warrants that (i) it has the
power and authority to enter into this Agreement, including, without limitation, the
indemnification obligation contained in this Paragraph 6; (ii) this Agreement and the
indemnification obligation contained in this Paragraph 6 have been considered, authorized and
approved by the Common Council of City; and (iii) the City's indemnification obligation in this
Paragraph 6 is fully enforceable against the City in accordance with its terms. City
acknowledges that FirstMerit has entered into this Agreement and agreed to make the payments
required hereunder in reliance on this representation and warranty with respect to the authority of
the City and the enforceability of the indemnification obligations in this Paragraph 6,
7. ASSIGNMENT OF DEFICIENCY JUDGMENT. Within ten (10) days after
Closing, FirstMerit shall assign the Deficiency Judgment to a designee as directed by Cowie in
writing.
S. OBLIGATIONS SUBJECT TO CONDITION SUBSEQUENT. In the event
that the City (i) receives notice that its request for the Grant Funds has been denied or(ii) has not
received notice that its request for the Grant Funds has been approved within ninety (90) days of
the Effective Date, all rights and obligations of the Parties under this Agreement shall become
null and void and this Agreement shall cease to be of any further force or effect; provided,
however, that the City has exercised reasonable efforts in a good faith attempt to obtain approval
of the Grant Funds. For the avoidance of doubt, in such event, the releases set forth in Paragraph
4 of this Agreement shall be null and void and the City may seek to reopen the Action or to file a
new action against FirstMerit with respect to the Premises.
9. NO ADMISSION OF LIABILITY. The parties agree that the settlement
embodied in this Agreement represents the compromise of disputed claims, and that nothing in
this Agreement shall be construed as an admission of any fault or liability with respect to any
claim, obligation or liability released.
10. NO ASSIGNMENT OF CLAIMS. Each party represents and warrants that
neither it, nor any of its agents, representatives, officers, employees or attorneys has assigned,
transferred, pledged, or purported to assign, transfer or pledge any actual or alleged claims,
obligations or liabilities that are the subject of this Agreement and/or that are released in this
Agreement.
11. ACKNOWLEDGEMENTS. Each party acknowledges that in entering into this
Agreement it is relying on its own judgment, belief and knowledge and, as applicable, on that of
any attorney it has retained to represent it in this matter. No party is relying on any
representation or statement made by any other party or any person representing such other party,
except for representations and warranties expressly set forth in this Agreement.
12. CONSTRUCTION. Each party, with the assistance of competent counsel, has
participated in the drafting of this Agreement. The parties agree that this Agreement has been
negotiated at arms-length by parties of equal bargaining power, each of which was represented
by competent counsel of its own choosing. None of the parties hereto shall be considered to be
the drafter of this Agreement of any provision hereof for the purpose of any statute, case law or
S
4834-8584-6050.5
rule of interpretation or construction that would or might cause any provision to be construed
against the drafter hereof.
13, COOPERATION. The parties agree to cooperate fully and execute any and all
supplementary documentation that may be necessary or appropriate to give full force and effect
to the basic terms and intent of this Agreement.
.14. SEVERABILITY. Wherever possible, each paragraph of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision shall be held to be prohibited or invalid, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or `
the remaining provisions of the Agreement.
15. INTEGRATION AND MERGER CLAUSE, This Agreement embodies the
entire agreement among the parties hereto with respect to the subject matter hereof, and there
have been and are no agreements,representations, or warranties, whether express or implied,
written or oral, other than those set forth or provided for herein and the Escrow Agreement,
Other than as stated herein, each pant), hereto warrants that no representation, promise, or
inducement has been offered or made to induce such party to enter into this Agreement.
16. AMENDMENT OF AGREEMENT, The terms of this Agreement may only be
amended or modified by a writing that has been executed by each of the paries hereto.
17, JOINT REPRESENTATIONS AND WARRANTIES, Each party to this
Agreement represents and warrants: (a) that the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly authorized by all
corporate or other actors necessary to enter into this Agreement and bind the party hereto; (b)
that the execution and delivery of this Agreement create a legal and binding obligation of each
respective party, enforceable against such party in accordance with its terms; and (c) that the
releases granted herein constitute legal and binding obligations of the FirstMerit Releasors,
Cowie Releasors, and City Releasors, as applicable.
18, NO THIRD PARTY RIGHTS. This Agreement: (a) shall benefit and be
binding upon the paries to this Agreement, their successors and assigns, and any corporation or
other entity into or with which any party may merge or consolidate; and (b) is not intended to;
nor shall it, create any rights, claims or.defenses in any other person or entity. For the avoidance
of doubt, nothing in this Agreement is intended to create any rights, claims or defenses in the
Escrow Agent or the Demolition Contractors,
19. SATISFACTION OF CLAIMS FOR FEES, COSTS AND EXPENSES. Each
party to this Agreement shall be solely responsible for the fees and costs of all lawyers and law
firms retained by such party in connection with this matter, including but not limited to all
settlement negotiations and the review and drafting of this Agreement,
20. EXECUTION. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall constitute one and the
same instrument. Executed signature pages may be removed from partially executed
counterparts and attached to one or more other counterparts in order to produce fully executed
9
4834-8584-6050.5
counterparts of this Agreement. This Agreement may be executed by facsimile copy or
electronic transmission in portable document format(or equivalent document-scanning format)
("PDF"), and each signature(whether counterpart, facsimile or PDF)thereto shall be and
constitute an original signature with the same force and effect, and together shall make this an
effective, binding agreement by each of the parties, again as if all parties had executed a single
original document.
21. CHOICE OF LAW. This Agreement is to be construed in accordance with and
governed by the internal laws of the State of Wisconsin, without giving effect to any choice-of-
law rule that would cause the application of the laws of any jurisdiction other than the internal
laws of the State of Wisconsin to the rights and duties`of the parties.
22. HEADINGS. The parties agree that the captions and headings in this Agreement
are inserted for the convenience of reference only and shall not affect the interpretation of this
Agreement.
FIRS RIT ANK A.
By: /
Its Z�0��
THE CITY OF OSHKOSH
By:
Mark Rohloff
Its: City Manager
By:
Pam R. Ubrig
Its: City Clerk
By:
Lynn Lorensen
Its: City Attorney
By:
Trena Larsen
Its: Finance Director
10
Error! Unknown document property namo.
counterparts of this Agreement. This Agreement may be executed by facsimile copy or
electronic transmission in portable document format (or equivalent document-scanning format)
("PDF"), and each signature (whether counterpart, facsimile or PDF)thereto shall be and
constitute an original signature with the same force and effect, and together shall make this an
effective, binding agreement by each of the parties, again as if all parties had executed a single
original document.
21. CHOICE OF LAW. This Agreement is to be construed in accordance with and
governed by the internal laws of the State of Wisconsin, without giving effect to any choice-of-
law rule that would cause the application of the laws of any jurisdiction other than the internal
laws of the State of Wisconsin to the rights and duties of the parties.
22. HEADINGS. The parties agree that the captions and headings in this Agreement
are inserted for the convenience of reference only and shall not affect the interpretation of this
Agreement.
FIRST MERIT BANK N.A.
By:
Its
THE CITY OF OSHKOSH
By:
Marl ohloff
Its: City Manager
By:
Pam R. Ubrig
Its: City Clerk
By
orenson
Its: City Attorney
By: .��re��ctlfh'�l
Trena Larson
Its: Finance Director
10
OSHKOS3JR TN7SES, INC.
By.
Its
I
OSHKOS FURN U LC ,
By.
Its
MAR///TIN J CO
r
,�,
, /
Mp J. Covslie/
jj
f
i
Error]Unknown document property name.
i
I�
EXHIBIT A
I
Statewide Razing Ine,
A Company to be "Wrecking" with! 1
103 Vosters Vista !
Combined Locks, WI 54113
Phone(920)766-7778
PROPOSAL
15335
Andrew's Wronski Work to be Performed at: 1/12/16
7771ast Wisconsin Ave, Oshkosh/Buckstaffproperty
Milwaukee, W1 53202-5306 S. Main St.
Phone: (414)297-5518 Oshkosh, Wl
e.-mail: AWronskiy folcy.coni
We hereby propose to furnish the materials and perform the labor necessary for the completion of
demolition and removal of former Buckstaff building located in Oshkosh, W.I. Work to include;
obtaining of city permits.taking down of building, removal and disposal of debris, removal of
foundations four feet below grade, breaking up of basement floor; recycling of aggregate material
on site, capping of sewers and ~eater at property line and backfill basement area with clean fill or
recycled aggregate.
Please note: no work beyond property line is included in this bid nor is topsoil or site restoration.
Owner shall be responsible for testing, conducting the asbestos inspection, scoring DNR
notification, handing and disposal of any and all hazardous waste including lead and asbestos.
All salvage shall become property of the contractor All material is guaranteed to be as specified,
and the above completed in a substantial workmanlike manner for tite sutn of:
Eight Hundred Four"Thousand Seven Hundred Fourteen Dollars ($804.714).
We are offering a price reduction if work is awarded by March 1, 2016 with a start date of March
15, 2016. Contractors will be given 9 months from start date to cotrtplete work. Price
y,eductioti will be for the s to of:
1 wenty Eight`Thousand Vireo Hundred Fifty Three Dollars.( $28,353.)
We are offering a price reduction if foundations, concrete slabs and masonry material can remain
ill place on site for the sunx of:
Ninety Seven Thousand Two Hundred Dollars ( $97,240. )
Page ! of pages
3
I
if
r
There will be an additional charge for abandoning the well on site which will be based ota time and
material.
Capping of sewer or water laterals in the side walk or street right of way will. be additional charge
o F:
Five Thousand Dollars ( $5,400. ) per cap
Note-This proposal may be withdrawn by LIS if not accepted within 30 days. Payment is due
within ten(10)days of completion. Payments not received within ten (10)days Lvill be subject to
1.5% monthly interest. 18%annual interest.
Any alteration or deviation from above specifications involving extra costs,will be executed only
upon written orders. and will become an extra charge over and above the estimate. 1h11
agreements contingent upon strikes, accidents, weather conditions or delays beyond our control.
Workmen's Compensation and Public Liability Insurance on above work to be taken out by
Statewide Kazin,,
Respectfully submitted,
,f,,L / - 2 C - I d
Glen Martin
ACCEPTANCE OF PROPOSAL - � ��e.cT tvcn4� ort r •+�a,z �t .
The above prices, specifications and conditions are satisfactory and are hereby accepted. You are
authorized to do the work as specified. Payment will be made as outlined above.
n
.S`ignawre Date f—C17 4
A rqtin Cowie, Manager of fJ�J
Oshkosh Furniture, LLC
Pop 2 of 2 paves
From: swrazin @c� earthlink net [mallto:swrazinq@earthlink n�t�
Sant:Wednesday, December 30, 2015 6:41 AM
To; Witte, Edward
Subject: Re: FW: Estimate from Advanced Asbestos Removal, Inc [GK-Active,FID2207730]
Price per Building
Building 29 $72,900
10 $14$,500
6 $90,000
4 $26,244
5 $11,800
8 $65,610
1 $120,960
2 $20,160
17 $27,000
24 $14,500
23 $33,686
15 $34.680
3 $91,200
7 $2,376
This is what I have
Glen 'Fatal costs are$579,161
i
EXHIBIT B
1063 County Rd, FF {
Oshkosh, M.54904 Proposal
Phone: 920-589-5077
Fax,, 920-589-2907
�w
Date Est€mate#
advasbestosr@rglklat[ cam �►D'Id'k—Nt,4 2I3/2016 150343
Qlts.taltl� RP-MOvAL mc,
. 1+y4[k GQQatt ll�rix �r x _
Oshkosh rarlkikkre,LLC ;: `a;t.j
Former BuekstaffBoildings
1 127 S.A4ain St,
Oshkosh,1YI 54901
Office# Contact
Fax#
• : , -;- •• Alt f'hane
�i; ', -.. �'!,?� ,-.j,..!ra ,s` -;: 1 y--_'�-i�8�0�ptlop ,_.`; I l� ,;k-% �`- � t.� `•: t s --. ..
Properly remove and dispose of asbestos mntcrials listed in the asbestos Inspection report dated Dee,5,2013. }
Per descriptions, localioos and quantities.
Price does not included Category I non-friable nspllnit roofing runterials fllat may go tivith demolition debris,
10 working day notification to DNR and fee
Buildings 1,1A,2,4,5,6,7,8,10,t3 and 14, 1,325,00
Price lnoludes floor tile on wood 1€s1ed in buildings 6 and 1Q 38,105.00
Price does not inelude bitilding 8,Category I non-fr[able applied%valI coatings,tar piton. I4,164 8F.
Price includes 260 5R rooting materials ill poor condition.Building 13,
Price includes 200 SF roafrng materials ill poor Gond€lion.Bulldlag 14,
Alternate 1.I3ulldi19 15,I could nut located oil limp.filen is price.
Maybe.this bli€lding does kkot exist arrylmoro, 2,900.00
Alternate 2,Building 3.TNvo boilers to be dismantled and contents of inspection report,Fxcopi roof,
Tirne and ukalerlals klot to exceed 50,000,00.Labor rate of$50XI)Ihour.Supervisor a $65,00/lrour. 50,000.00
Alternate 3.Building 8,Abate Category I non-friable applied wall coatings,for pitch. 14,464 SP.
These materials may go with<icmolitiorr debris to licensed landfill[fdesired.Recommend rlenkolilionl, 86,7$4.00
There may addidoaal charges to remove These materials becauso of sianctirtg water that will freeze.
This will hinder abalcment in this area,
dote:Ido price for buildings 2l and 23,No asbestos reported except roof drat may go will'dentol€lion debris,
Conditioned on the City of Oshkosh securing snlf€eicnt grant fiends from tike Wisconsin Economic Dcvcloprneni Corporation,
The start date for the work should be" thfn 10 days ofyou receiving notice ilial the grant finds]rave beelr approved,
The project€on cankpleliolr dale shall be nine motkths from tike start dale,
RespeclRitly Submilled byAfiv—
Total $179J14.00
Rakp117,e,npel,Yreslden!
Tike above prices,specifications and conditions ak'e snlis€actoky and are hereby ficceptccl.You fire xnlliorizcd to complete the work as
specified. Payment will be made as outlined below.Additionally,we reserve th
30 days, e rigltt to 4vitlxlraw this pi'OpOSAI if llOt aCCeptEd witlkill
f
Signaturet��� { F. 47
: n
Date
s r
included ilk the proposal is the following;
1)Labor,nater€als,and disposal costs, Unless otherwise noted.
2)Liability,workers conlponsnt[ork,pollution insurance($1,000,000.00 coveraga), Certificate of insurance upon request,
3)No1lCoation to D1-1S/DNR prior to start of project per proposal,
4)All documentation including disposal manifest will be provided Wiwi project is completed,
5)Compliance of work performed will comply with nil OSHA,DNR,FPA,DOT,and State of 1V*OlIsln regulations governing the removril of
asbestos materials.
6)Certified Asbestos Company It 170720. All eluployecs performing asbostos rolatcd activities are certified by Wisconsin Dept,of Health Services,
7)Terms! Net 30 days upon substantial completiokr, 1,5%rnmkce charge per month will be Assessed on all overdue inoices. Lien waiver upon
request.
i
4
i
i
. I
I
j,
I