HomeMy WebLinkAbout32652 / 83-08,.
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November 17, 1983
(CARRIED
PURPOSE:
INITIATED BY:
li$ RESOLUTION
LOST LAID OVER WITHDRAWN )
APPROVE OSHKOSH CENTRE LAND-LEASE AGREEMENT
CITY ADMINISTRATION
BE IT RESOLVED by the Common Council of the City of Oshkosh that the
proper City officials are hereby authorized and directed to enter into the
Oshkosh Centre Land-Lease Agreement wnich is attached hereto, provided, how-
ever, that this authorization is limited to the City Council approving final
attachments which have heretofore not been provided.
SlJBMITTED BY
APPROVED
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GROUND LEASE
This GROUND LEASE, made and entered into this day of
, 1983, by and between the CITY OF OSAKOSH, WISCONSIN,
a htunicipal Corporation (hereinafter "LESSOR"), and PY-VAVRA DEVELOPMENT,
INC., a Wisconsin Corporation (herzinafter "LESSEE").
W I T N E S S E T H:
IN CONSIDERATION of the autual promises and covenants cont2ined herein,
the parties hereto agree as follows:
1. PREMISES. LESSOR hereby leases to LESSEE and LESSEE hereby rents
from LESSOR, upon the following terms and conditions, the parcel of vacant
land located on the west side of the first block of North Main Street in the
City of Oshkosh, County of Winnebago, State of Wisconsin (hereinafter the
"Demised Premises"), as set Forth and described in Exhibit "A" attached hereto
and made a part hereof.
Z. TERM. The term of this Lease is seventy-five (75) years, beginning
as of the date of co�ercement of construction of improvements to the Demised
Premises as hereinafter described, or one hundred twenty (120) days from the
date of this Lease, whichever date is later, unless sooner terminated as
provided for in this Lease.
3. REN': Nc rent pursuar,t to t:�is paragraph 3 shall b� paid for the
period commencing July 1, 1983 to and including December 31, 1988. Lessee
shell pay to Lessor, without abatement deduction or offset, in legal currency
of the United States on July 1, 1989 -$100,000; on July 1, 1990 -$200,000;
on July 1, 1991 -$250,000; on July 1, 1992 and on each and every successive
July lst thereafter to and including July 1, 2007 -$520,000 as annual rent
for the calendar vear of payment. Co�encing on January 1, 2008 and each year
thereafter for the remaining term hereunder, PVD shall pay to Lessor two
percent (2%) of the gross room revenue of the Hotel to be censtructed on the
Demised Premises as annual rent. Such annual rental payment sha11 be calcu-
lated on the previous twelve (12) months gross room revenue.
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In addition, Lessee shall pay Lessor ior the calendar year commenc—
ing 1986 and for each calendar year thereafter for the term of this agreement,
an amount equal to the real property taxes which would be assessed in any such
year on a fu11 value assessment of $5,400,000. Lessor shall give credit to
Lessee for such payment against the real propert;� taxes paid by Lessee in any
such year. Payment hereunder shall be made by Lessee at least ten (10) days
before the due date(s) for the payment of real property taxes for an;� given
year. It is understood by the parties that the payment hereunder may be less
than or may exceed the amount of real property taxes payable by Lessee in any
given year and Lessee shall pay the greater of the two figures.
4. WARRANTY OF TITLE F,ND QUIET POSSESSION, Lessor covenants that
Lessor is seized of the Demised Premises in fee simple and has full right to
�ake this Lease and that Lessee shall have quiet and peaceable possession of
the Demised Premises during the term hereof.
5. PAYMENT OF IITILITIES, TAXES AND ASSESSMENTS. Lessee shall pay all
utility charges, real property taxes, general or special assessments, and
other charges of every description levied or assessed against the Demised
Premises or the improvements located on the Demised Premises, and all personal
property taxes levied on or assessed against Lessee's leasehold estate or
Lessee's personal property, to the full extent of installments falling due
during the Lease terci, whether chargeable against Lessor or Lessee. Lessee
shall make all such payments directly to the taxing authority at least ten
(10) days before delinquency and before any fine, lnterest or penalty shall
become due or be imposed by operation of 1aw for their non—payment. If,
however, the law expressly permits the payment of any and all of the above
items in installments, Lessee may, at Lessee's election, utilize the permitted
installment sethod, but shall pay each installment with any interest before
delinquency.
Al1 payments of taxes or assessments or both except permitted installaent
payments, shall be prorated for any part of a year at the commencement and
termination of the Lease, on the basis of the most recent real estate tax
assessment and real estate tax rate.
Lessee may contest the legal validity or amount of any taxes, assessr:ents
or charges for which Lessee is responsible under this Lease, and may institute
such proceedings as Lessee considers necessary. If Lessee contests such tax,
assessment or charge, Lessee may withhold or defer payment or pay under
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protest but shall protect Lessor and the Demised Premises from any lien by
adequate surety bond or other appropriate security.
Lessor appoints Lessee as Lessor's attorney-in-fact for the purpose of
aaking all payments to any taxing authorities and for the purpose of con-
testing any taxes, assessments or charges, conditioned on Lessee's preventing
any liens froa being levied on the Demised Premises or on Lessor, provided
that the same shall not entail any cost or expense to Lessor.
Lessee shall furnish to Lessor at least five (5) days before the date
when any tax assessments or charges would become delinquent, receipts or other
appropriate evidence establishing their payment.
6. USE. Lessee shall use and permit the use of the Demised Premises
for the construction, equipping, development, maintenance and operation ef a
first class hotel to be known as the Radisson Oshkosh (hereinafter the "HOTEL"),
and uses reasonably related to such use, all substantially in accordance with
the plans and specifications as set forth and described in Exhibit "B" attached
hereto and made a part hereof. Presently, it is not contemplated that any
parking for the Hotel will be provided on the Demised Premises.
7. NEW IMPROVEMENTS. Lessee shall, at Lessee's sole expense, prepare
plans and specifications for the Hotel to be erected on the Demised Premises.
Lessee shall not permit any mechanic's, materialman's, contractor's, or
subcontractor's lien arising from any work of improvement, to be placed or
filed against the Demised Premises. Lessee shall defend and indemnify Lessor
against all liability and loss of any kind arising out of work performed on
the Demised Premises by Lessee, together with reasonable attorney's fees and
the costs and expenses incurred by lessor in negotiating, settling, defending
or otherwise protecting against such claims, provided, however, that Lessee
has not removed such claim(s) within thirty (30) days of such claim(s) placement
or filing.
8. CONSTRUCTION, OPERATION, MAINTENANCE AND REPAIRS. Throughout the
Lease tern, Lessee shall, at Lessee's sole cost and expense, construct,
operate and maintain the Demised Premises, Hotel, sidewalks, curbs, water,
sewer and gas connections, and all other fixtures, equipment and improvements
belonging to or connected with the Demised Premises in first class, sanitary
condition and repair and in accordance with all applicable laws, rules,
ordinances, orders and regulations of:
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(a) Federal, state, county, municipal and other governmental agencies
and bodies having or claiming jurisdiction and all their respective
departments, bureaus and officials.
(b) The insurance underwriting board or insurance inspection bureau
having or claiming jurisdictior.; and
(c) All insurance companies insuring all or any part of the Demised
Premises or improvements or both.
Lessee shall use its best efforts to have the operator of the Hotel and all
sublessees comply with all of the a6ove laws, rules, ordinances, orders and
regulations.
Except as provided below, Lessee shall promptly and diligently repair and
replace as required to maintain or comply as above, or to remedy all damage or
destruction of al1 or any part of the improvements.
Nothing in this provision defining the duty of maintenance shall be
construed as limiting any right given elsewhere in this Lease to alter,
modify, demolish, remove or replace any improvement, or as liniting provisions
relating to condemnation or to damage or destruction during the final year or
years of the term. No impairment or limitation of use resulting from any
event or work contemplated by this Paragraph shall entitle Lessee to any
offset, abatement or reduction in rent nor to any termination or extension of
the Lease term. Lessee shall have the right to remodel the interior of the
Hotel to meet the needs of tenants, and to modernize the Hotel.
Notwithstanding any other provisions of this Lease:
(a) In the event of major damage or destruction, Lessee shall not be
required to rebuild and/or reconstruct any improvement if the cost
of the proposed reconstructed or rebuilt improvement will exceed the
value of the improvement prior to the damage or destruction.
(b) In the event of damage or destruction during the last five (5) years
of the Lease term to an extent such that restoration would require
an expenditure of more than one-third (1/3) of the value of the
building immediately prior to the dzmage or destruction, Lessee may,
upon thirty (30) days notice to Lessor, terminate this Lease, in
which event, all insurance proceeds in excess of any amount required
to be paid to any mortgagee shall belong solely to Lessee.
9. OWNERSHIP OF IMPROVEMENTS. All improvements constructed on the
Demised Premises by Lessee as permitted by this Lease shall be owned by Lessee
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until expiration of the Lease term or sooner termination of this Lease.
Lessee shall not, however, remove any improvements from the Demised Premises
nor waste, destroy or modify any improvements on the Demised Premises, except
as permitted by th3s Lease. The parties covenant for themselves and all
persons claiming under them that the improvements are real property.
All improvements on the Demised Premises at the expiration of the Lease
term or upon sooner termination of this Lease shall, without compensation to
Lessee, then becone Lessor's property free and clear of all claims except
those suffered or permitted by Lessor to or against them by Lessee or any
third person, and Lessee shall defend and indemnify Lessor against all lia-
bility and loss arising from such claims or from Lessor's exercise of the
right conferred by this Paragraph.
tiotwithstanding anything to the contrary contained herein, at the ex-
piration of the Lease term or sooner termination of this Lease, Lessee may
remove any furniture, fixtures, equipment and personal property furnished by
or at its expense, provided that such removal does not structurally injure the
Hotel or necessitate fundamental changes thereto. Lessee shall, at its sole
cost and expense, repair or cause to be repaired any damage resulting from
such removal, normal wear and tear excepted.
10. MORTCAGE SY LESSEE. Lessee may, provided that Lessee is r.ot then in
default hereunder, execute mortgages upon Lessee's leasehold interest in the
Demised Premises and the improvements upon the Demised Premises through 2n
institutional lender, a WAG mortgage upon the Lessee's leasehold interest in
the Demised Premises and improvement upon the Demised Premises through Lessor
as security foz the payment of notes, such other mortgage or mortgages as are
approved by lessor in writing, and any renewal or extensions thereof, to be
executed by Lessee, upon the following terms and conditions:
(a) Lessor shall not be obligated for the payment of any such loans or
any part thereof.
Cb) The notes and mortgages shall ptovide that in the event of any
default as to the terms and provisions of either or both notes and
mortgages which would permit the institutior.al lender and/or Lessor
to accelerate the loan balance, the institutional lender and/or
Lessor shall be obligated to give Lessor written notice of such
default and opportunity to cure such default for a period of thirty
(30) days following the receipt of such notice.
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(c) Lessee cocenants and agrees that the proceeds of the loan shall be
used solely and exclusively to pay for development 2nd building
costs, loan expenses and other rela:ed costs with respect to im-
provements to be made upon the Demised Premises and a parking
structure adjacent to said Demised Premises, and for no other
purpose.
(d) The notes and mortgages may provide that this Lease shall be subject
and subordinate to the lien of the mortgages placed upon the Demised
Premises and the improvements upon the Demised Premises or any
portion thereof by Lessee, its successors or assigns, and to re-
placements, renewals and extensions thereof. The Lessor shall, upon
request, furnish Lessee with counsel's opinion stating that the
existing law of the State of Wisconsin does not prohibit the Lease
being made subject and subordinate to the lien of the mortgages, and
that said subordination is ir, accordance with the terms of this
Lease. The Lessor shall at any time after demand execute and
deliver any instruments, releases or documents that may be reason-
ably required for the purpose of subjecting and subordinating it's
interest in the Demised Premises, as above provided, to the liens of
any such nortgages.
11. ASSIGNMENT, SUBLETTING AND MANAGEMENT AGREEN.ENT. Lessee shall not
assign or otherwise transfer Lessee's interest in this Lease and the estate
created thereby, whether by operation of law, sale of stock, transfer of
assets, merger, consolidation or otherwise, without Lessor's prior written
consent, which consent shall not be unreasonably withheld, procided, however,
that PVD may assign its interest herein to a linited partnership of which PVD
shall be a general partner.
Lessee shall have the absolute right to sublet all or any part of the
improvements, provided that each sublease shall contain a provision requiring
sublessees to attorn to Lessor. Promptly on Lessor's demand, Lessee shall
furnish Lessor with a photostatic copy of each sublease made of space in the
Demised Premises.
Lessee shall enter into a management agreement (he.reinafter the "Manage-
ment Agreement") with Radisson Hotel Corporation on or prior to the opening
for business of the Hotel, to operate it as a"Radisson Hctel." Lessee shall
at all times during the Lease term comply with the terms of the Management
Agreement. As additional security to Lessor, subject to the mortgage or
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mortgages as described in Paragraph 10 hereoi, Lessee hereby assigrs to Lessor
all of Lessee's right, title and interest in and to the Management Agreement
and any successor agreement thereto, such assignment being conditional only
and not operative, absolute or in effect unless and until a default has
occurred on the part of Lessee under this Lease. Lessee shall not, without
the prior written consent of Lessor, which consent shall not be unreasonably
withheld, modify or cancel the Management Agreement or any successor thereto.
In the event the Management Agreement or any successor thereto is cancelled,
Lessee shall promptly enter into a substantially similar agreement with some
other organization of equal stature to Radisson Hotel Corporation. Lessee
shall supply Lessor with copies of all notices or other coffiunications sent to
or received under the Management Agreement promptly upon their receipt or
transmittal, as the case maS be. Lessor agrees to enter into such subordina-
tion, non-disturbance and attornment agreements as Radisson Hotel Corporation
may reasonably require.
12. INSURANCE, INDENINIFICATION AND HOLD HAR2�.ESS.
A. Fire and Extended Covera�e. Throughout the Lease terci, at Lessee's
sole cost and expense, Lessee shall keep insured all improvements located on
or appurtenant to the Demised Premises against loss or damage by fire, and
such other risks as are now or hereafter included in an estended coverage
endorsement in common use for first class hotels and related commercial
structures, including vandalism and malicious mischief, for the benefit of
Lessor and Lessee as their interest may appear. The amount of insurance shall
be sufficient to prevent either Lessor or Lessee from being a co-insurer under
the provisions of the policies, but in no event shall the amount be less than
eighty (80) percent of the then actual replacement cost or the amount required
by Lessee's mortgagees, if any.
Lessor shall, at Lessee's cost and expense, cooperate fully with Lessee
to obtain the largest possibly recovery, and all policies of fire, extended
coverage and other hazard insurance required herein shall provide that the
proceeds shall be paid to Lessee. The proceeds, when paid to Lessee, shall be
held in trust to the use and purposes provided in this Lease.
B. PUBLIC LIABILITY INSURANCE. Lessee shall maintain in effect through-
out the Lease term personal injury liability insurance covering the Demised
Premises and its appurtenances and the sidewalks surrounding thereon in the
amount of at least $2,000,000.00 for injury to or death of any person and at
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least $8,000,000.00 for any one accident or occurrence, and at least $1,000,000.00
for property damage, or any greater amounts as maq be required by either
Lessee's mortgagees, if any, or Lessor, reasonably, from time to time, based
on changed economic conditior.s. Lessor shall be named as an insured on
Lessee's public liability policies as its interest may appear.
C. Insurance Generally. Lessee may procure and maintain insurance not
required by this Lease and all such insurance shall be for the mutual benefit
of Lessor and Lessee. Lessee shall furnish Lessor with copies of all such
policies promptly on receipt of them or with certificates evidencing the
insurance, all at least thirty (30) days before the expiration thereof (subse-
quent to their initial purchase). All policies shall waive all rights of the
insurers to be subrogated to any rights of Lessor against Lessee or Lessee
against Lessor and shall contain an agreement b;� the insurer that the policies
shall not be cancelled or modified without at least ten (10) days prior
written notice to Lessor and any mortgagee to whom a loss thereunder nay be
payable.
Lessee shall keep in force such other insurance in such amounts as may
from time to time be reasonably required by Lessor against such insurable
hazards as at the time are commonly insured against in the case of first class
hotels similarly situated.
D. INDEMNIFICATION AND HOLD HARMI.ESS. Lessor shall not be liable, and
Lessee shall defend and indemnify Lessor against all liability and claims of
liability, for damage or injury to person or property on or about the Demised
Premises from any cause. Lessee waives all claims against Lessor for damage
or injury to person or property arising, or asserted to have arisen, from any
cause whatsoever.
13. CONDEMNATION. The following definitions apply in construing pro-
visions of this Lease relating to a taking of or damage to all or any part of
the Demised Premises or improvements or any interest in them by eminent domain
or inverse condemnation:
(a) Taking means the taking or damaging, including se��erance damage, by
eminent domain or by inverse cor.demnation or for any public or
quasi-public use under any statute. The transfer of title may be
either a transfer resulting from the recording of a final order ir.
condemnation or a voluntary transfer or conveyance to the condeaning
agency or entity under threat of condemnation, in avoidance of an
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exercise of eminent domain, or while condemnation proceedings are
pending. The taking shall be considered to take place as of the
date the Lessee's physica2 possession is taken or interfered with by
the condemnor or the date the condemnor becomes the legal owner of
the interests being condemned, whichever is earlier.
(b) Total taking means the taking of the fee title to all the Demised
Premises and the improvements on the Demised Premises, which shall
be considered to include any offsite improvements effected by Lessee
to serve the Demised Premises or the improvements on the Demised
Premises.
(c) Substantial takinR means the taking of so much of the Dem3sed
Premises or improvements or both that one or both of the following
conditions results:
(i) The remaining Demised Premises would not be economically and
feasibly usable by Lessee.
(ii} The portion of tfie Demised Premises not so taken cannot be so
repaired or reconstructed, taking into consideration the amount
of the award available for repair or reconstruction, as to
constitute a complete, rentable structure, capable of producing
a proportionately fair and reasonable net annual income after
payment of all operating expenses, the annual rent and all
other charges payable under this Lease, and after performance
of all covenants and conditions required of Lessee by Iaw and
under this Lease.
(d) Partial takinR means any taking which is not either a total taking
or substar,tial taking.
(e) Notice of intended takin means any notice or notification on which
a reasonably prudent person would rely and which that person would
interpret as expressing an existing intention of taking as distin-
g�ished from a mere preliminary inquiry or proposal. It includes
but is noi limited to the service of a jurisdictional offer on a
party to this Lease. The notice is considered to have been received
when a party to this Lease receives from the condemning agency or
entity a notice of intent to take, in writing, centaining a descrip-
tion or map of the taking reasonably defining the extent of the
taking.
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(f) Award means compensation paid for the taking whether pursuant to
judgment or by agreement or otherwise.
The party receiving any notice of the kinds specified below shall promptly
give the other party notice of the receipt, contents and date of the notice
received:
1. Notice of intended taking;
2. Service of any legal process relating to condemnation of the
Demised Premises or improvements;
3. Notice in connection with any proceedings oi negotiations with
respect to such a condemnation; or
4. Notice of intent or willingness to make negotiate a private
purchase, sale or transfer in lieu of condemnation.
A. Total or Substantial Taking.
On a total taking, Lessor's obligation to pay rent shall terminate on,
and Lessee's interest in the leasehold shall continue until, the date of
taking.
If the taking is substantial under the definition appearing above, Lessee
may, by notice to Lessor given with seventy-five (75) days after Lessee
receives notice of intended taking, elect to treat the taking a a substantial
taking. If Lessee does not so r.otify Lessor, the taking shall be deemed a
partial taking. A substantial taking shall be treated as a total taking if:
(1) Lessee delivers possession to Lessor within thirty (30) days after
the date of the taking; and
(2) Lessee is not in default under the Lease and has complied with all
Lease provisions.
If these conditions are not met, the taking shall be treated as a partial
taking.
Lessee may continue to occupy the Demised Premises and improvements until
the condemnor takes physical possession. However, at any time following
notice of intended total taking, or within the time lim3t specified for
delivering possession in the provision on substantial taking, Lessee may elect
to deliver possession of the Demised Premises to Lessor before the actual
taking. The election shall be made by notice declaring the election and
covenanting to pay all rents required under this Lease to the date of taking.
Lessee's right to apportionment of or compensation from the award shall then
accrue as of the date that Lessee goes out of possession.
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On a total taking, all sums, including danages and interest, awarded for
the fee or the leasehold or both shall be divided between the respective
parties in the manner provided by law at the time of the taking. Anv amount
required to be paid to any mortgagee of a mortgage encumbering the fee interest
in the property securing an obligation of Lessee shall be paid out of Lessee's
share of the aware.
B. Partial Taking.
On a partial taking, this Lease shall remain in full force and effect,
covering the remaining property.
Fromptly after a partial taking, at Lessee's eapense and in the manner
specified in provisions of this Lease, relating to maintenance, repairs and
alterations, Lessee shall repair, alter, modify or reconstruct the improve-
ments (hereinafter referred to as restoring) so as to make them into a com-
plete architectural unit and reasonably suitable for Lessee's continued
occupancy for the uses and purposes for which the Demised Premises are leased.
� Lessee is relieved of the duty to, but may, repair, alter, modify or
reconstruct the improvements if a partial taking occurs during the final five
(5) years of the Lease term as described below. The conditions for relief
are:
1. The work of repair, alteration, modification or reconstruction would
require an expenditure of more than one-third (1/3) of the value of
the building prior to the taking, damage or destruction.
2. Within one hundred twenty (120) days after Lessee receives notice of
intended taking, Lessee gives Lessor notice of election to claim the
relief described in this provision. If the conditions for relief
described in this provision are met, the award shall be apportioned
as for a total taking, applying the requirements of this provision
relating to Lessee's obligations; provided Lessee's right, title.
and interest in the land, improvements and leasehold estate shall
continue until the taking is completed by deed, contact or final
order of condemnation, and provided further, that the estimated cost
of such repair, alteration, modification or reconstruction shall be
deducted from Lessee's share of the award and paid to Lessor,
subject to the rights of any mortgagee.
On a partial taking, if this Lease is not terminated pursuant to the
relief provisions of the immediately preceding subparagraph, all sums awarded,
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including damages and interest, shall be divided between the parties in the
manner then provided by law, subject to the rights of any mortgagee.
On any taking of the temporary use of all or any part or parts of the
Demised Premises or improvements or both for a period, or of any estate less
than a fee, ending on or before the expiration date of the Lease term, neither
the Lease term nor the rent shall be reduced or affected in any way and Lessee
shall be entitled to any awared for the use or estate taken. If a result of
the taking is to necessitate expenditures for changes, repairs, alterations,
modifications or reconstruction of the improvements to make them into a
complete architectural unit and economically and reasonably suitable for
Lessee's continued occupancy for the uses and purposes for which the Demised
Premises are leased, Lessee shall receive, hold and disburse the award in
trust for such work. At the completion of the work and the discharge of the
Demised Premises and improvements from all liens and claims, Lessee shall be
entitled to any surplus and shall be liable for any deficit.
If any such taking is for a period extending beyond the expiration date
of the Lease term, the taking shall be treated under the foregoing provision
for total, substantial and partial takings.
14. DEFAULT.
Each of the following events shall be a default by Lessee and a breach of
this Lease:
(a) Abandonment or surrender of the Demised Premises or of the leasehold
(b)
(c)
estate, or failure or refusal to pay when due any installment of
rent or any other sum required by this Lease to be paid by Lessee or
failure or refusal to perform as required or conditioned by any
other covenant or condition of this Lease.
The subjection of any right or interest of Lessee to attachment,
executinn or other levy, or to seizure under 1ega1 process, if not
released within sixty (60) days.
The appointment of a receiver who is not removed within sixty (60)
days after appointment to take possession of the Demised Premises or
improvements or of Lessee's interest in the leasehold estate or of
Lessee's operations on the Demised Premises for any reason, includ-
ing but not limited to, assignment for benefit of creditors or
voluntary or involuntary bankruptcy proceedings, but not including
receivership:
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(i) pursuant to administratior, of the estate of any deceased or
incompetent individual member of Lessee;
(ii) pursuant to any mortgage permitted by provisions of this Lease
relating to construction of improvements; or
(iii) instituted by Lessor, the event of default being not the
appointment of a receiver at Lessor's instance but the event
justifying the receivership, if any.
(d) An assignment by Lessee for the benefit of creditors or the filing
of a voluntary or involuntary petition by or against Lessee under
any law for the purpose of adjudicating Lessee a bankrupt; or for
extending time for paycient, adjustment, or satisfaction of Lessee's
liabilities; or for reorganization, liquidation, dissolution, or
arrangement on account of or to prevent bankruptcy or insolvency;
unless the assignment or proceedings, and all consequent orders,
adjudications, custodies and supervisions are dismissed, vacated, or
otherwise permanently stayed or terminated within sixty (60) days
after the assignment, filing or other initial event.
(e) Default or delinquency in the payment of any loan secured by a
mortgage permitted by this Lease to be placed by Lessee against
Lessor's title or the leasehold or both.
In the event that Lessee defaults in the payment of rent, including
any additional rental payable hereunder, and Lessee does not cure the
default within thirty (30) days after written denand for pa�ent of such
rent, or if Lessee defaults in the prompt and full performance of any
other provisions of this Lease, including defaults as herein defined, and
Lessee does not cure the default within sixty (60) days after written
demand by Lessor that the default be cured, or such further time as may
be reasonably necessary to cure such default> then and in any such event
Lessor may, if Lessor so elects but not otherwise, with or without
further notice or demand, subject> however, to rights of prior mortgages,
forthwith terminate this Lease and Lessee's right to possession of the
Demised Premises or, without terminating this Lease, forthwith terminate
Lessee's right to possession of the Demised Premises and in either case
Lessor may re-enter the Demised Premises, and repossess the Demised
Premises and may re-let the same after making such repairs and doing such
remodeling as is reasonably necessary to re-let the ➢emised Premises.
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Lessor shall, in the event of any such default, also give written notice
of such default to Lessee's mortgagee and Lessee's mortgagee shall have
the same period of time granted Lessee to cure any such default. Lessee
is not released from liability for rent, including any additional rental
payable hereunder, or damages because Lessor repossesses the Demised
Premises or pursues any other remedy available to Lessor. Lessor shall
apply the money derived from re-letting to the rent due or to become due
on this Lease and to the cost of repairing, remodeling, showing and
advertising the Demised Premises for the purpose of re-letting and
attorney's fees and other expenses incurred by Lessor in connection with
enforcing this Lease, and Lessee shall remain liable for any deficiency
and agrees to pay the same. In the event of such repossession, Lessor
may, at the end of each calendar month during the remaining term, demand,
be entitled to and sue for, the monthly rent, together with all expenses
incurred in attempting to re-let if the Demised Premises are not re-let
and, if re-1et, the deficiency resulting monthly from such re-letting.
Lessor's right to bring action shall be multiple and several. Action
brought to recover the amount due for any year shall not prejudice or bar
Lessor from subsequent action to recover the amount due for any subseauent
year.
In the event that Lessor shall terminate this Lease, in addition to
any other remedy it may have, Lessor may recover from Lessee all damages
incurred by reason of such breach, including the cost of recovering the
Demised Premises, and including the worth at the time of such termination
of the excess, if any, of the amount of rent and charges equivalent to
rent reserved in this Lease for the remainder of the stated term over the
then reasonable rental value of the Demised Premises for the remainder of
the stated term, all of which amount shall be immediately due and payable
from Lessee to Lessor> but not including funds paid against mortgage
balances.
Lessee shall pay all of Lessor's reasonable costs, charge and
expenses, including the fees of counsel, agents and others retained b�
Lessor, incurred in enforcing any of Lessee's obligations under this
Lease or incurred by Lessor in any litigation, negotiation or transaction
in which Lessee causes Lessor, without Lessor's fault, to become involved
or concerned.
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RESOLUTION # 8
15. LESSOR'S RIGHT TO PERFORM LESSEE'S DUTIES Ah� OBLIGATIONS. In the
event Lessee fails to perform any of its duties or obligations under this
Lease, Lessor may (but is not obligated to ) perform the same after giving
thirty (30) days notice to Lessee. Any amounts reasonably expended by Lessor
in so performing shall be treated as additional rent due from Lessee with
interest at the rate of the prime rate in affect plus two percent (2i) to be
paid within fifteen (15) days of written demand therefore. Prime rate shall
be the prime rate then charged by the City Bank of New York.
16. ACCOUNTING. Lessee shall keep its books of account in accordance
with the Uni£orm System of Accounts for Hotels adopted by The American Hotel
Association of the United States and Canada as set :orth in the book entitled
Uniform System of Accounts for Hotels, as revised from time to time, and shall
submit quarterly reports to Lessor within forty-five (45) days following each
quarter. Lessee shall make available to Lessor such of Lessee's books of
account as may be reasonably required by Lessor to verify the amounts due from
cime to time under Paragraph 3 above. Lessee shall cause to have prepared at
its expense an annual statement of its accounts by a certified public account-
ing firm and such statement shall be available for review by Lessor or its
agent at the business office of the Lessee within ninety (90) days after the
expiration of each Lease year.
17. LESSO�'S RIGHT OF INSPECTION. Lessee shall permit Lessor and its
agency or representatives to enter the Demised Premises at all reasonable
times for the purpose of inspecting the same or making any necessary repairs
thereto and performing any work therein that may be necessary by reason of
Lessee's failure to make any such repairs or perform any such work, although
Lessor shall have no obligation to do any of the above.
Lessor shall have the right to enter the Demised Premises at all reason-
able times during usual business hours for the purpose of showing the same to
prospective purchasers or mortgages thereof, and at any time during usual
business hours within eighteen (18) months prior to the expiration of the
Lease term for the purpose of showing the same te prospective purchasers or
lessees.
18. ESTOPPEL CERTIFICATES. The parties mutually agree that at an}� time
and from time to time upon written request of the other party and at the
reasonable cost and expense of the party requesting the same, Lessor or
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RESOLUTION # 8
Lessee, as the case may be, will execute, acknowledge and deliver to the other
party a certificate evidencing whether:
(a) the Lease is in full force and effect;
(b) the Lease has been modified or amended in any respect and submitting
copies of such modifications or anendments, if any; and
(c) there are any existing defaults thereunder to the knowledge of the
party executing the certificate and specifying the nature of such
defaults, if any.
19. EASEMENTS AND APPROVALS. Lessor shall execute any and all instru-
ments that ma� reasonably be required in connection with the granting of
easements under, over and across the Demised Premises for installation of
water, gas, steam, electricity, telephone, sewerage and storm drainage to the
various utility companies, without expense to Lessor, provided that such
easements are necessary for the conduct of the business of the Hotel.
Lessor shall cooperate with Lessee, at no expense to Lessor, to obtain
any governmental approvals relating to Lessee's intended development and use
of the Demised Premises and Lessee may proceed in Lessor's name, at Lessee's
sole cost and expense, to obtain such approvals.
20. HOLDOVER. If Lessee retains possession of the Demised Premises or
any part thereof after the expiration of the Lease term, in addition to its
other rights and remedies provided by law, Lessor may, in an election ex-
pressed in a written notice to Lessee given within thirty (30) days of said
holding over and not otherwise, treat such retention of possession as con-
stituting a renewal of this Lease, and so bind Lessee on a year-to-year basis
to the same terms and conditions as expressed herein, and the yearly rental
shall equal one hundred fifty (150) percent of the yearly rental provided in
this Lease. The piovisions of this Paragraph do not exclude Lessor's right of
re-entry or any other right or remedy provided or allowed by law or this
Lease.
21. SIGNS. Lessee may, at its sole cost and expense, at any time and
from time to time, place or permit to be placed signs and advertising matter
in, on or about the Demised Premises and Hote1, including its roof, and to
remove them or permit them to be removed, provided the same is done in full
compliance with all requirements of law pertaining thereto. Lessor shall
execute any applications and consents that are required by governmental
authorities and no such applications or consents shall impose any liability on
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RESOLUTION # 8
Lessor by virtue of the erection or maintenance of any of said signs or
advertisements and Lessee covenants and agrees to indemnif� and save Lessor
harmless from any damages or injuries that may be sustained by anyone by
reason thereof.
22. MISCELLANEOUS PROVISIONS.
A. Notice.
All notices pexmitted or required by this Lease must be given in writing
and shall be considered given forth-eight (48) hours after deposit in the
United States mail in a sealed envelope, postage and postal charges prepaid,
certified mail, return receipt requested, addressed by name and address to the
party or person intended as follows:
Notice to Lessor:
City Manager
City of Oshkosh
215 Church Avenue
Oshkosh, Wisconsin 54901
Notice of Lessee:
PY-VA�IRA DEVELOPMENT, INC.
933 North Mayfair Road
Milwaukee, Wisconsin 53226
Either party may, by notice given at any time or from time to time,
require subsequent notices to be given to another individual person, or to a
different address, or both.
B. Entire Agreement.
This Lease contains the entire agreement between the parties. No promise,
representation, warranty or covenant not included in this Lease has been or is
relied on by either party. Any changes, modifications, additions or amend-
ments hereto must be in a writing signed by both parties herein.
C. Severability.
The invalidity or illegality of any provision of this Lease as to any
circumstance or person shall not affect the remainder of this Lease or the
applicability of the provision involved to other circumstances or persons to
the fullest estent permitted by law.
D. Successors.
Subject to the provisions in this Lease on assignment and subletting,
each and all of the covenants and conditions of this Lease shall be binding on
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RESOLUTION # 8
and shall insure to the benefit of the heirs, successors, executors, adminis-
trators, assigns and personal representatives of the respective parties.
E. Governing Law.
This Lease shall be governed by and construed in accordance oTith the laws
of the State of Wisconsin.
F. Captions.
The captions of this Lease are for convenience of reference only and in
no way define, limit, or describe the scope or intent of this Lease or in any
way affect this Lease.
G. Approval, Consent or Judgment.
Any approval, consent or judgment permitted or required to be made under
this Lease by Lessor or Lessee shall not be unreasonably made, withheld or
delayed.
H. Reinstatement and Waiver.
No waiver of any covenant or condition contained in this Lease or of any
breach of any such covenant or condition shall constitute a waiver of any
subsequent breach of such covenant or condition by either party, or justify or
authorize the nonobservance on any other occasion of the same or any other
covenant or condition hereof by either party. No receipt of money by Lessor
from Lessee after the termination of this Lease or after the service of any
notice after the coa�encement of any suit, or after final judgment for pos-
session of the Demised Premises shall reinstate, continue or extend the Lease
term or affect any such notice, demand or suit.
23. EYPIRATION AND TERMINATION.
At the expiration or earlier termination of the Lease term, Lessee shall
surrender to Lessor the possession of the Demised Premises. All property that
Lessee is required to surrender shall become Lessor's at termination of this
Lease. All property that Lessee is not required to surrender but that Lessee
does abandon shall, at Lessor's election, become Lessor's property at termina-
tion.
If Lessee fails to surrender the Demised Premises at the expiration or
sooner termination of this Lease, Lessee shall defend and indemnify Lessor
from all liability and expense resulting from the delay or failure to surrender,
including, without limitation, claims made by any succeeding lessee founded on
or resulting from Lessee's failure to surrender.
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RESOLUTION # 8
This Lease shall terminate without `urther notice at expiration of the
Lease term. Any holding over by Lessee after expiration shall not constitute
a renewal or extension or give Lessee any rights in or to the Demised Premises
except as otherwise expressly provided in this Lease.
24. NON-MERGER.
There shall be no merger of this Lease, or of the leasehold estate
created by this Lease, with the fee estate in the Demised Premises by reason
of the fact that this Lease, the leasehold estate created by this Lease, or
any interest in this Lease or in any such leasehold estate, may be held,
directly or indirectly, by or for the account of any person who shall own the
fee estate in the Demised Premises or any interest in such fee estate, and no
such merger shall occur unless and until all persons at the time having an
interest in the fee estate in the Demised Premises and all persons (including
any leasehold mortgagee) having an interest in this Lease, or in the leasehold
estate created by this Lease, shall join in a written instrument effecting
such merger and shall duly record the same.
25. RECORDATION.
This lease shall not be recorded. Only an abstract or short form of this
Lease shall be recorded. The parties shall execute the short form or abstract
in form and substance as required by a title insurance company insuring
Lessee's leasehold estate or the interest of a mortgagee, and sufficient to
give constructive notice of the Lease to subsequent purchasers and mortgagees.
Executed in duplicate original on the day and year first above set forth.
CITY OF OSHfi05H
Attest:
PY-4AVRA DEVELOPMENT, INC.
Attest:
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