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HomeMy WebLinkAbout32652 / 83-08,. ;� i November 17, 1983 (CARRIED PURPOSE: INITIATED BY: li$ RESOLUTION LOST LAID OVER WITHDRAWN ) APPROVE OSHKOSH CENTRE LAND-LEASE AGREEMENT CITY ADMINISTRATION BE IT RESOLVED by the Common Council of the City of Oshkosh that the proper City officials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 - 9 - 0 + . RESOLUTION # 8 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. - 9a - n , , RESOLUTION # S 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 - 9b - 0 � , RESOLUTION # 8 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: —9c— RESOLUTION # 8 (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 - 9a - ,.. _______ _ _ _ e RESOLUTION # 8 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. - 9e - RESOLUTION # 8 (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 -9f- RESOLUTION # 8 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 - 9g - RESOLUTION # 8 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 - 9h - RESOLUTION # H 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. - 9i - 0 RESOLUTION # 8 (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. - 9� - RESOLUTION # 8 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, - 9k - RESOLUTION # 8 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: - 91 - RESOLUTION # 8 (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. - 9m - RESOLUTION # 8 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. - 9n - 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 — 90 — c 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 - 9p - 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 - 9� - 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. - 9r - 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: - 9s - ,�..... _ _ ,... ... . __, <. ,�s � _.__.._.._ _ ._.__. ,._._..�,...,.__...... � C'::4 f`SS'.: �i i` � z �,. �* c �c m � c� � � m N y Y+� F� N N � � W � 0 �-r N• 0 � y O a R� O d ct n a � o cc H �o m tn mmty ..�... w r aa �ro m y m o � � m m � ct O � .-'Y �i O � � n � .� cI n m r m � a r m m m m � m m 0 � c cr F'• O � � W �� � .� �