HomeMy WebLinkAboutPurchase & Sale of Property Oshkosh Corporation & Lakeshore Golf Course13 b*"t 0 -i -
AGREEMENT FOR PURCHASE
AND SALE OF PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY (the
"Agreement") is made and entered into on January 10, 2018 (the "Effective Date"), by
and between City of Oshkosh, a Wisconsin municipal corporation with offices at 215
Church Avenue, Oshkosh, Wisconsin ("Seller"), and Oshkosh Corporation, a Wisconsin
Corporation, with offices at 2307 Oregon Street, Oshkosh, WI 54902 ('Purchaser").
RECITALS
Purchaser desires to purchase real property described in Section 1 below, and in
connection therewith Seller and Purchaser desire to enter into this Agreement to set
forth the terms and conditions of such purchase and sale.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Sale Agreement. Seller agrees to sell to Purchaser and Purchaser agrees to
purchase from Seller, subject to all of the terms and conditions of this Agreement, Lot 2
of Certified Survey Map No. 13 l a- ("CSM"), being a portion of Lakeshore Golf
Course located at 2175 Punhoqua Street, City of Oshkosh (part of tax parcel number
ll,- OVTV p).-cO ) and consisting of 32.81 acres, and all privileges, rights, easements and
appurtenances thereunto belonging (the "Real Property"). A copy of the certified
survey map is attached to and incorporated in this Agreement as Exhibit A. At Closing,
Seller shall convey merchantable title to the Real Property to Purchaser by general
warranty deed free and clear of all liens and encumbrances, except only for those title
exceptions reasonably acceptable to Purchaser pursuant to Section 3.1, below (the
"Permitted Exceptions").
2. Purchase Price / Earnest Money. The purchase price of the Real Property
('Purchase Price") shall be $100,000 per acre; the total purchase price shall be three
million two hundred eighty one thousand dollars ($3,281,000.00). Earnest money of
$175,000.00 (the "Earnest Money") will be paid to the Title Insurer within 10 business
days of acceptance of this Agreement by the City of Oshkosh Common Council. Earnest
Money shall be held by the Title Insurer pursuant to its standard form of joint order
escrow agreement until applied against the Purchase Price at Closing or otherwise
disbursed in accordance with this Agreement. Purchaser shall pay to Seller the
remainder of the Purchase Price, subject to customary prorations and adjustments as
provided in this Agreement, at the Closing, in cash by wire transfer.
3. Conditions Precedent to Purchaser's Obligations. Purchaser's obligations to
consummate the transactions under this Agreement shall be subject to the following
conditions precedent being satisfied to the satisfaction of the Purchaser (or waived by
Purchaser in writing or as otherwise provided in this Section 3):
3.1 Title Commitment and Policy. On or before January 15, 2018, Seller, at
Seller's sole cost and expense, shall provide Purchaser with a title commitment
("Title Commitment"), on a current ALTA form with a "gap" endorsement, to
issue an Owner's Title Insurance Policy ("Title Policy"), issued by Chicago Title
Insurance Company ("Title Insurer"), covering the Real Property in the amount
of the Purchase Price showing merchantable record title to the Real Property to
be in Seller, with all General Exceptions to be deleted or endorsed over
(including without limitation possession, mechanics' liens and taxes or special
assessments not shown as existing by the public records exceptions), subject only
to the Permitted Exceptions and other matters approved or waived in writing by
the Purchaser. At Closing, Seller shall cause the Title Insurer to issue the Title
Policy to Purchaser (in accordance with the Title Commitment and as provided
for in this Section 3.1).
(a) Certified Survey Map and ALTA Survey. Pursuant to the terms of
the Development Agreement, Seller shall prepare an update to the CSM
that reflects mutually agreed site access points, rights of way, easements,
and stormwater detention ponds in, on or about the Real Property
("Updated CSM"). Purchaser shall have a period of forty-five (45) days
after receipt of the Updated CSM to obtain an ALTA Survey of the Real
Property ("Survey Period").
(b) Objections to Title of Record. Within fifteen (15) business days
after the expiration of the Survey Period, Purchaser shall furnish to Seller
written notification of any comments or objections to or defects in (a) title
of record as set forth in the Title Commitment and (b) Purchaser's review
of the ALTA Survey(s). If Purchaser fails to give this required notice,
Purchaser shall be deemed to have accepted all matters then affecting title
to the Real Property set forth in the Title Commitment and the ALTA
Survey(s). If Purchaser does give said required notice, Purchaser shall be
deemed to have accepted all matters then affecting title to the real
property or the ALTA survey(s) as set forth in the Title Commitment and
ALTA Survey(s) that are not set forth in the required notice.
Notwithstanding anything herein to the contrary, any mortgages, liens or
judgments shown on the Title Commitment will be paid, satisfied or
insured over by Seller on or prior to the Closing Date. After receipt of said
notice, Seller shall have the right, at its election, to endeavor to cure such
objections to or defects in title or survey set forth therein and shall notify
Purchaser of such election within five (5) business days. If Seller does
elect to endeavor to cure such objections to or defects in title or survey, it
shall promptly commence and diligently pursue efforts to cure such
objections within ten (10) business days following its election to cure and
diligently continue pursuit to cure (the "Cure Period").
(c) Failure to Cure Objections. In the event Seller fails to cure
Purchaser's objections to or defects in title of record or survey prior to the
expiration of the Cure Period, including any extensions thereof granted by
Purchaser (in its sole discretion), or if Seller shall determine that its efforts
to cure will not be successful, Purchaser may either (i) waive such
objections to or defects in title or survey and proceed with Closing or (ii)
terminate this Agreement, by written notice to Seller. In the event of
termination, Seller shall direct the Title Insurer to return the Earnest
Money to Purchaser and the parties shall have no further rights or
liabilities under this Agreement except as otherwise described in this
Agreement.
3.2 Inspection. Purchaser shall have until the expiration of the Due Diligence
Period (as defined below) to investigate and inspect the Real Property to
determine, in Purchaser's sole discretion, whether the Real Property is suitable
for Purchaser's intended use and development. With prior notice to Seller,
Purchaser, and Purchaser's employees, agents, and representatives shall have the
right to enter upon the Real Property at any reasonable time and make whatever
tests or inspections of the Real Property that they desire to make at Purchaser's
sole cost and expense pursuant to the terms and conditions of the Temporary
Access Agreement between Purchaser and Seller dated September 11, 2017 (the
"Access Agreement"). Notwithstanding the terms of the Access Agreement, the
parties acknowledge and agree that Purchaser shall have the period commencing
on the Effective Date and continuing until April 1, 2018 (the "Due Diligence
Period"), in which to conduct and complete its inspection and review of the Real
Property. If Purchaser determines that such Real Property (including ingress
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and egress) is not acceptable to Purchaser in Purchaser's sole discretion,
Purchaser shall have the right to terminate this Agreement by written notice to
Seller prior to the expiration of the Due Diligence Period (as may be extended).
In the event of such termination, Seller shall direct the Title Insurer to return the
Earnest Money to Purchaser and the parties shall have no further rights or
liabilities under this Agreement.
3.3 Archeological Approval and Remediation. A portion of the Real Property
has been identified as an archeological site requiring remediation prior to
development. Seller has begun evaluation and remediation of the site, however,
remediation will require site work that is weather dependent. Prior to Closing,
Seller shall complete the evaluation and remediation of the site sufficient to
obtain approval from the State of Wisconsin Historical Society and approval and
issuance of appropriate permits from the Wisconsin Department of Natural
Resources (and any other applicable regulatory agencies or authorities) as are
necessary for Purchaser's construction activities to take place on the Real
Property. Such permits, when issued, shall not create or establish any new or
additional restrictions upon Purchaser's future use and development of the Real
Property as a result of (i) the identification of the Real Property as an
archeological site and/or (ii) the completion of the remediation activities. Seller
shall diligently pursue such work to completion, however, because the work is
weather dependent, Purchaser acknowledges that remediation may not be
complete on or before April 15, 2018, and should remediation not be complete by
such date, the parties agree that the date for closing shall be adjusted as provided
in section 5 below.
3.4 Operation of Property. From the Effective Date to the Closing Date, Seller
shall keep and preserve the Real Property in the condition existing as of the
Effective Date and not deposit or permit to be deposited thereon any garbage, fill
or other refuse material without Purchaser's prior written consent. Further,
Seller shall not, without first obtaining the written approval of Purchaser, enter
into any lease or other agreement with respect to the Real Property which will
extend in force beyond the Closing Date and purport to bind Purchaser or the
Real Property or will not be fully performed or terminated by Seller prior to the
Closing Date.
3.5 Rezoning, Approval of TIF District and Development Agreement.
Purchaser's obligation to purchase the Real Property shall also be contingent
upon the completion of the following conditions prior to Closing:
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a) Seller obtaining all the zoning, land use and site plan approvals for the
Property in form and substance acceptable to Purchaser.
b) The Creation of a Tax Incremental Financing District (Industrial Use)
consistent with the proposed terms and conditions specified in
Resolution 17-534 adopted by the Common Council on November 8,
2017.
c) Purchaser and Seller reaching mutual agreement upon the terms and
restrictions of, and approval by the City of Oshkosh Common Council of,
a Development Agreement consistent with the proposed terms and
conditions specified in Resolutions 17-534 and 17-535 adopted by the
Common Council on November 8, 2017, in form and substance acceptable
to Purchaser (the "Development Agreement").
Should any of the contingencies listed within this Section 3 not be satisfied, Purchaser
shall be entitled to terminate this Agreement and shall be entitled to return of its
Earnest Money, but shall have no other or further recourse against Seller.
4. Conditions Precedent to Seller's Obligations. Seller's obligations under this
Agreement shall be subject to the following conditions precedent being satisfied to the
satisfaction of the Seller (or waived by Seller in writing or as otherwise provided in this
Section 4):
4.1 Conveyance by City of Oshkosh. Purchaser and Seller recognize that
Seller is the City of Oshkosh and that such conveyance must be approved by the
Common Council for the City of Oshkosh.
4.2 Approval of TIF District and Development Agreement. Seller's obligation
to sell shall be contingent upon completion of the rezoning, TIF District creation
and Development Agreement approvals outlined in Section 3.5, above.
5. Closing. The purchase of the Real Property shall be consummated as follows:
5.1 Closing Date. The closing of the transaction contemplated in this
Agreement shall be on the later to occur of: (i) ten (10) days following the
expiration of the Due Diligence Period, (ii) ten (10) days following the
satisfaction (or waiver) of the conditions outlined in Sections 3 and 4, above,
including without limitation, completion of Seller's remediation activities and
receipt of all approvals as are necessary for issuance of applicable construction
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permits to Purchaser following completion of the archaeological work identified
in paragraph 3.3 above, or (iii) April 15, 2018 (the "Closing" or "Closing Date"),
or such other date as may be agreed upon by Purchaser and Seller in advance.
The Closing shall be held at the offices of Seller or Title Insurer, or such other
location as the parties may mutually agree.
5.2 Seller's Deliveries and Responsibilities. At Closing, Seller shall deliver to
Purchaser the following:
(a) Deed. An executed general warranty deed to the Real Property
prepared by Seller and in a form reasonably acceptable to Purchaser.
(b) Title Policy. The Title Policy provided for in Section 3.1.
(c) Alta Statement. An executed owner's affidavit and Alta Statement in
the form required by the Title Insurer.
(d) Other Documents. Such other documents, instruments, agreements,
certifications, confirmations and affidavits as may be reasonably required
by Purchaser or the Title Insurer to fully effect and consummate the
transactions contemplated hereby, the recording of documents, the
issuance of the Title Policy, or otherwise.
(e) Possession. Sole and exclusive possession of the Real Property.
5.3 Purchaser's Deliveries and Responsibilities. At Closing, Purchaser shall
deliver to Seller the following:
(a) Purchase Price. Purchaser shall pay to Seller in lawful money of the
United States, the Purchase Price set forth in Section 2, via wire transfer.
(b) Alta Statement. An Alta Statement in the form required by the Title
Insurer.
(c) Other Documents. Such other documents, instruments, certifications
and confirmations as may reasonably be required by Seller or Title Insurer
to fully effect and consummate the transactions contemplated hereby.
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5.4 Toint Deliveries. At Closing, Seller and Purchaser shall jointly deliver to
each other the following:
(a) Closing Statement. An agreed upon closing statement.
(b) Transfer Tax Filings. Executed documents complying with the
provisions of all federal, state, county and local law applicable to the
determination of transfer taxes.
(c) Closing Costs. Each party shall be responsible for their own costs for
preparation and review of closing documents. The Seller shall pay: (i) the
Seller's settlement fee to the Title Company, (ii) any transfer fee
applicable, (iii) the premium for the Title Policy and gap endorsement,
and (iv) one-half of the Closing and escrow fees charged by the Title
Insurer. Purchaser shall pay: (i) Purchaser's Settlement Fee, (ii) the cost of
any endorsements (other than gap) to the Title Policy, (iii) one-half of the
Closing and escrow fees charged by the Title Insurer, and (iv) Recording
Costs for the deed.
5.5 Demolition of Clubhouse. Seller shall complete the demolition of the
clubhouse structure located on the Real Property and remove all related materials and
debris from the Real Property following the satisfaction (or waiver) of the conditions
outlined in Sections 3 and 4, above, but in any event prior to the Closing Date. All such
demolition and removal activities shall be completed at Seller's sole cost and expense
and in accordance with all applicable laws and regulations.
6. Seller's Representations, Warranties and Covenants. In addition to all other
representations, covenants and warranties by Seller herein, Seller hereby represents,
covenants and warrants, as of the date hereof and as of the Closing, which
representations and warranties shall survive for a period of one (1) year following
Closing, as follows:
6.1 Ownership. Seller is the sole owner of and has good and merchantable fee
simple title to the Real Property, free and clear of all liens, encumbrances,
easements, covenants and other restrictions except the Permitted Exceptions.
6.2 Liens and Liabilities. Except for the Permitted Exceptions, the Real
Property is not subject to any liens, encumbrances, security interests, liabilities,
covenants, restrictions, dedications, rights-of-way, leases or judgments of any
kind whatsoever.
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6.3 Leases. No other persons are in possession of the Real Property under any
oral or written lease.
6.4 Encroachments. No improvements upon the Real Property encroach upon
adjoining real estate, nor do any improvements upon adjoining real estate
encroach upon the Real Property.
6.5 Special Assessments. There are no pending or planned special
assessments against the Real Property and there are no proceedings for special
assessments against the Real Property.
6.6 Due Incorporation and Corporate Authority. Seller is a municipal
corporation under the laws of the State of Wisconsin. Seller has full power,
authority and legal right to execute, deliver and perform its obligations under
this Agreement.
6.7 Violation of Laws. Seller has not received any written notice from any
governmental agency of violations of any laws or ordinances, rules, regulations
or orders (including, but not limited to, those relating to zoning, condemnation,
building, fire, environmental, health and safety) in respect to the Real Property or
the operation thereof that have not been resolved to the satisfaction of the issuer
of the notice.
6.8 Proceedings. There is no action, proceeding, arbitration, litigation,
governmental investigation or adjudicatory proceeding that is pending which
affects the Real Property or the use thereof or Seller's ability to enter into and
perform its obligations under this Agreement. There are no pending or
threatened condemnation or eminent domain proceedings relating to the Real
Property.
6.9 Environmental Matters. Seller has not violated, and Seller has not
received any written notice that Seller has violated, any Environmental Laws in
connection with the use, ownership, maintenance or operation of the Real
Property. For purposes of this Agreement: (i) "Environmental Laws" shall mean
any federal, state or local statute, law, ordinance, code, rule, regulation, order or
decree regulating, relating to or imposing liability or standards of conduct
concerning any Hazardous Substance, as now or at any time hereafter in effect;
and (ii) "Hazardous Substances" shall have the meaning ascribed in any
Environmental Law to any hazardous, toxic or dangerous waste, substance,
pollutant or material.
7. Default.
7.1 Default by Purchaser. If Purchaser fails to perform any of its obligations
under this Agreement for any reason other than Seller's default or the permitted
termination of this Agreement by either Seller or Purchaser as herein expressly
provided, Seller shall so notify the Purchaser in writing and Purchaser shall have
a ten (10) -day opportunity to cure such default. If Purchaser shall fail to cure
such default within such ten (10) -day period, Seller shall be entitled, as its sole
and exclusive remedy, to terminate this Agreement and receive the Earnest
Money as liquidated damages for the breach of this Agreement, it being agreed
between the parties hereto that the actual damages to Seller in the event of such
breach are impractical to ascertain and the amount of the Earnest Money is a
reasonable estimate thereof.
7.2 Default by Seller. In the event that Seller fails to perform any of its
obligations under this Agreement for any reason other than Purchaser's default
or the permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall so notify the Seller in writing and Seller shall
have a ten (10) day opportunity to cure such default. If Seller shall fail to cure
such default within such ten (10) day period, Purchaser shall be entitled, as
Purchaser's sole and exclusive rights and remedies, to either: (a) receive the
return of the Earnest Money, which return shall operate to terminate this
Agreement and release Seller from any and all liability hereunder, or (b) only if
all conditions set forth in Sections 3 and 4 of this Agreement have been satisfied,
to commence an action to enforce specific performance of Seller's obligations
hereunder.
7.3 Enforcement. In any action brought to enforce this Agreement or any
term of provision hereof, including, without limitation, Seller seeking to enforce
Seller's rights to the Earnest Money upon a default by Purchaser, the prevailing
party in such action shall be entitled to recover from the nonprevailing party, all
of the prevailing party's costs of enforcement, including reasonable attorneys'
fees. Such recovery shall be in addition to any other award made to the
prevailing party. This Section 7.3 shall survive Closing or any termination of this
Agreement.
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8. Miscellaneous. It is further understood and agreed as follows:
8.1 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and such counterparts together
shall constitute one and the same instrument.
8.2 Survival. The representations and warranties contained in this Agreement
shall survive the Closing and the delivery of the Warranty Deed without
limitation.
8.3 Severability. If any provision of this Agreement shall be held to be void or
enforceable for any reason, the remaining terms and provisions hereof shall not
be affected thereby.
8.4 Binding Effect. The provisions of this Agreement shall insure to the
benefit of and bind the successors and assigns of the parties thereto.
8.5 Amendment and Waiver. This Agreement may be amended at any time
in any respect only by an instrument in writing executed by Seller and Purchaser.
Either party may waive any requirement to be performed by the other
hereunder, provided that said waiver shall be in writing and executed by the
party waiving the requirement.
8.6 Integrated Agreement. This Agreement constitutes the entire agreement
between the parties solely with respect to the sale and transfer of the Real
Property. No promises or understandings, either expressed or implied, exist
between the parties with respect to the sale and transfer of the Real Property
under this Agreement except as contained herein.
8.7 Choice of Law. It is the intention of Seller and Purchaser that the laws of
Wisconsin shall govern the validity of this Agreement, the construction of its
terms and interpretation of the rights and duties of Purchaser and Seller.
8.8 Notices. Any notices or demands to be given by or on behalf of either
party to the other as required by this Agreement, or otherwise, shall be delivered
by personal service, by mail, postage prepaid, registered or certified, with return
receipt requested or by facsimile to the parties at the addresses listed below,
unless in the event of any change of address, the other party shall have been
notified promptly in writing and said notice of change of address shall have been
actually received by the other party prior to the time of giving notice. Notice
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shall be deemed when received for personal service, three days from the date of
the postmark if by mail or the date received if for facsimile unless received after
five p.m. on a business day or received on a weekend day, in which receipt shall
be the next business day.
To Seller: City of Oshkosh
Allen Davis
Community Development Director
215 Church Avenue
Oshkosh, WI 54901
PH: 920.236.5055
Email: adavis@ci.oshkosh.wi.us
To Purchaser: Oshkosh Corporation
Jason Havlik
2307 Oregon Street
Oshkosh, WI 54952
PH: 61.10 - °76, .593 a
Email: jhavlik@oshkoshcorp.com
With a Required Copy to: Oshkosh Corporation
Heather Kelly
2307 Oregon Street
Oshkosh, WI 54952
PH: (920) 236-6861
Email: hkelly@oshkoshcorp.com
8.9 Accuracy of Representations. Purchaser's obligation to close on the
purchase of the Real Property is expressly conditioned upon the truth and
accuracy, in all respects, of Seller's representations and warranties made under
this Agreement as of the Closing Date.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement for Purchase
and Sale of Real Property to be executed, as of the day and year first above written.
SELLER: PURCHASER:
CITY OF OSHKOSH OSHKOSH CORPORATION
By: By:
MA A. Rohloff, City Manager 41
Sa So V) S f,
_ V -P v -F Fqc 1 i f;es M,7.g.
Pamela R. Ubrig, City Clerk
�Nu"a A/
L orens n i Attorney
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EXHIBIT A
TO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY BETWEEN
CITY OF OSHKOSH AND OSHKOSH CORPORATION
IDENTIFICATION OF REAL PROPERTY
(on pages following)
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EARNEST MONEY ESCROW AGREEMENT
Escrow No.: 718010032
The undersigned Seller, Buyer, and Escrowee hereby agree that Buyer shall deposit with Escrowee the earnest
money in the amount of $175,000 (the "Funds") called for by the Agreement for Purchase and Sale of Property dated
January w , 2018 between Seller and Buyer, as amended, if amended (the "Purchase Agreement"). The Funds
shall be held by Escrowee in its general escrow funds account until, and shall release the Funds only upon, the
occurrence of one of the following:
1. On closing of the sale of real estate as described in the Purchase Agreement, Escrowee shall deliver the
Funds to Seller as part of Buyer's purchase money.
2. Receipt by Escrowee of joint written instructions from Buyer and Seller to deliver the Funds to a named
party; or
3. If there's a dispute between Seller and Buyer regarding the Funds, Escrowee shall continue to hold the
Funds until the entry and receipt by Escrowee of an order of a court of competent jurisdiction ordering
Escrowee to deliver the Funds.
This agreement shall be subject to and controlled by the terms of the Purchase Agreement. Escrowee shall not
be liable for any acts or omissions done in good faith under this Agreement. Buyer and Seller a g r e e t o
hold Escrowee harmless for all reasonable out-of-pocket expenses incurred by Escrowee as to all reasonable
actions taken by Escrowee in accordance with this agreement, provided that neither Seller nor Buyer shall be
responsible for any costs incurred by Escrowee as a result of (i) Escrowee's failure to perform its obligations under
this Agreement, or (ii) arising out of the gross negligence or willful misconduct of Escrowee.
This agreement may be executed by the parties hereto in counterpart. When each party has executed a copy of
this agreement, the executed copies taken together shall have the same force and effect as if executed in one
document. Electronic signatures on this Agreement shall be deemed original signatures.
Dated this ID day of January, 2018.
Seller
City of Oshkosh
�r
BY
NAME: aA.
TITLE: i !
BY:
NAME:
TITLE: y_
Buyer
Oshkos Cto
o
BY:
NA e)
TITLE: V FRGi l i Pies' M".
19 N. High Street, 2nd Floor
Janesville, WI 53548-3618
(608)756-0300 / Fax (608)756-5356
ESCROWEE
and
1970 Cranston Road
Beloit, WI 53511-3137
(608)365-4454 / Fax (608)365-5516