HomeMy WebLinkAbout08-411Term Sheet
October 24, 2008
The Redevelopment Authority of the City of Oshkosh, the City of Oshkosh and the Oshkosh
River Development, LLC (the 'Developer ") would enter into a development agreement with respect
to development of the property commonly known as the Marion Road Phase II Redevelopment
Area. The outline of the agreement is as follows:
Land Acquisition /Construction
The Developer would acquire for $1 per parcel, all of the land south of Marion Road
except for Development Area 3. Both the Developer and the City/RDA hope that a hotel would be
built on Development Area 3, but in any event, Development Area 3 would be held by the
City/RDA for future development.
2. The Developer would construct an approximately 25,000 square foot office building
on Development Area 1 -B. The Developer would hold Development Area 1 -A for future
development (discussed below).
The Developer would construct a restaurant on Development Area 2.
4. The Developer would construct an approximately 64,000 square foot apartment
building or residential condominium project on Development Area 4
The Developer would construct a marina with permanent fixed docks in the Fox
River adjacent to the riverwalk near the apartment building or residential condominium. The
City/RDA would own the marina and lease it to the Developer on a long -term lease, which lease
would be assignable to any subsequent owner of the apartment /condominium building.
6. The City /RDA would grant an option to purchase the land north of Marian Road
(Development Area 5) to the Developer at a purchase price of $1 for each parcel purchased. The
option would expire on December 31, 2012.
Osh River Dev term sheet 1 9/17/08
Valuation
The Developer would commit that by December 31, 2009, the hard costs of
construction of the improvements located on Development Areas 1 -13 (25,000 square foot office
building), 2 (restaurant), and 4 (apartment /condominium building) would equal or exceed
$12,000,000, and those improvements would be completed.
2. The Developer would commit that by December 31, 2013, the hard costs of
construction of the improvements located on Development Area 1 -A (the second 25,000 square foot
office building) would be not less than $4,000,000 and those improvements would be completed. If
the value of the improvements is less than $4,000,000 or if the Developer elects not to construct or
complete the improvements, then at the City/RDA's option, title to Development Area 1 -A would
revert to the City/RDA.
In the event the Developer exercises its option to purchase the land north of Marion
Road (Development Area 5), then the Developer would commit that by December 31, 2012, the
hard costs of construction of all improvements both north and south of Marion Road in the Marion
Road Redevelopment area, other than those improvements located on Development Area 3, would
equal or exceed $27,000,000.
City's Obligations
The City /RDA would construct the riverwalk and seawall adjacent to the project
simultaneously with construction of three of the four projects proposed on Development Area 1 -B,
Development Area 2, Development Area 3, and Development Area 4. The City/RDA may,
however, elect to construct the riverwalk and seawall adjacent to the project with construction of
two of the four projects in the referenced Development Areas.
Osh River Dev term sheet 2 rev 10/24/08
2. The City /RDA would build public transient docks located adjacent to the riverwalk,
near the restaurant site. The docks would be constructed at or about the same time as the riverwalk
is constructed.
Development Agreement
The original Development Agreement would be assigned to the Developer and
immediately thereafter, amended and restated in a form acceptable to both the Developer and the
City/RDA. The amended and restated agreement would require, among other things, the following:
(a) Approval by the City /RDA of the plans and specifications for each parcel to
be developed.
(b) Review and approval of the valuations set forth above.
(c) Evidence satisfactory to the City /RDA that the Developer has adequate
financing to complete construction of those portions of the project south of Marion Road.
(d) Approval by the City /RDA of the construction budget and construction
schedule.
(e) Limitations on the right of the Developer and /or its members to transfer any
portion of the project and /or their respective interests in the project.
(f) Limitations on liens against the project but only to the extent the liens could
result in foreclosure prior to completion of construction of the project.
2. The Developer's obligations under the Development Agreement would be contingent
upon the Developer performing its due diligence and market analyses with respect to the project on
or before January 31, 2009. If the Developer is diligently pursuing its due diligence with respect to
the project, then the Developer would have the right to extend this due diligence period for two
additional periods of 30 days each, but only with the City/RDA's consent.
Osh River Dev term sheet 3 rev 10/24/08
The City /RDA's obligations under the Development Agreement would be contingent
on, among other things, the City/RDA being satisfied that the Developer can meet the project
completion schedule and valuation schedule in the timeframes negotiated by the parties.
4. The Development Areas described in this term sheet have not been finalized and the
size and location of each Development Area are subject to review and approval by the City/RDA
and the Developer as part of the negotiation of the Development Agreement. Attached to this Term
Sheet is Map Exhibit 1 which shows the proposed general site plan and Map Exhibit 2 which shows
the general location of Development Areas referenced in the Land Acquisition/Construction
Section.
The Development Agreement would contain other terms and conditions,
representations, warranties, covenants and indemnities, all of which would be negotiated by the
parties and would have to be acceptable to both parties before either party agreed to proceed with
the project.
Osh River Dev term sheet 4 rev 10/24/08
OCTOBER 28, 2008 08 -411 RESOLUTION
(CARRIED 5 -2 LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE ASSIGNMENT OF DEVELOPMENT AGREEMENT BY
AKCESS ACQUISITION GROUP TO OSHKOSH RIVER
DEVELOPMENT LLC; APPROVE TERM SHEET FOR REVISED
DEVELOPMENT AGREEMENT WITH OSHKOSH RIVER
DEVELOPMENT LLC
INITIATED BY: DEPARTMENT OF COMMUNITY DEVELOPMENT
REDEVELOPMENT AUTHORITY ACTION: Approved
WHEREAS, Akcess Acquisition Group is requesting that the Development
Agreement between the Redevelopment Authority, the City of Oshkosh and Akcess for
development of parcels within the Marion Road /Pearl Avenue Redevelopment Phase II
Area be assigned to Oshkosh River Development LLC; and
WHEREAS, the approved Development Agreement, as revised, with Akcess
allows for an assignment with approval by the Redevelopment Authority and the City;
and
WHEREAS, the Redevelopment Authority approved of said request.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the Development Agreement, as revised, with Akcess Acquisition Group,
is hereby assigned to Oshkosh River Development LLC.
BE IT FURTHER RESOLVED that the attached Term Sheet with Oshkosh River
Development LLC is hereby approved and the appropriate City officials are authorized
to enter into an amended Development Agreement with Oshkosh River Development
LLC for the Marion Road /Pearl Avenue Redevelopment Phase II area, with substantially
the same terms as attached hereto, and to carry out all actions necessary to implement
the City's obligations under the agreement.
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Of HK fH
ON THE WATER
TO: Honorable Mayor and Members of the Common Council
FROM: Jackson Ki ey
Director of Com unity Development
DATE: October 23, 2008
RE: Assignment of Development Agreement by Akcess Acquisition Group to
Oshkosh River Development and approval of Term Sheet for Revised
Development Agreement with Oshkosh River Development for Marion
Road/Pearl Avenue Redevelopment Phase II Area (Redevelopment Authority
Recommends Approavl)
BACKGROUND
The Common Council is being asked to approve the assignment of the Development Agreement
from Akcess Acquisition Group — Oshkosh, LLC to Oshkosh River Development, LLC, and to
authorize the City to enter into a revised/updated Development Agreement with Oshkosh River
Development for the Marion Road/Pearl Avenue Phase II Redevelopment Area.
In October 2006 Akcess Acquisition Group, in response to a Request for Proposals, submitted a
proposal to the City/RDA to have Akcess serve as "Master Developer" for the Phase II Area. In
January 2007 the City/RDA gave approval to Akcess for a six month option period for that group
to conduct a due diligence effort, and in July 2007 the City/RDA gave authorization to enter into
a Development Agreement with Akcess. Following those actions Akcess spent considerable
time and effort to arrive at what they felt was a logical land use /development plan and approach.
As part of that effort Akcess brought forward development plans that were reviewed and
approved by the RDA, Plan Commission and Council. In early Summer 2008 modifications
were also approved to the Development Agreement.
On August 8 th a Memorandum was forwarded to the RDA and to the Council indicating Akcess
had been evaluating the overall project relative to their ongoing involvement. In the memo it was
noted that Akcess Vice President Tim Rikkers had identified challenges the group was facing,
including: the general state of the economy, and its impact on new hotel, retail and residential
development; changes in credit markets over the past year; and difficulties in attracting a critical
mass of tenants to the office building. In the August 8 1h Memo several ideas were reviewed that
Mr. Rikkers felt merited consideration, which included:
• Allowing Akcess to assign its rights to the proposed office building site to another
developer in accordance with the Development Agreement.
• Remove the proposed hotel site from the agreement and have the RDA do a direct
solicitation of interest (RFP) to potential hotel developers.
• Amend provisions of the Development Agreement to more closely meet the needs
of an assignee.
• Modify the agreement to give the City/RDA the flexibility to work with Akcess or
other developers to match the development plans for the area.
In August /September City staff continued discussions with Akcess concerning the various ideas.
As a result of those discussions, Akcess requested that the Development Agreement be assigned
to Oshkosh River Development, LLC, a group led by Andy and Art Dumke, who Akcess had
hoped to collaborate with on aspects of the Waterfront Project. The Dumke group has stated
their willingness to pursue the project, based on the City and the RDA making various changes
in the provisions and format for development in the Development Agreement.
Attached to this Memo is a letter from Mr. Rikkers where he requests the City's approval to the
assignment of the Development Agreement to Oshkosh River Development, LLC. Also attached
is a letter from Oshkosh River Development, LLC, where the group indicates their willingness to
pursue the project, based on changes to the agreement.
ANALYSIS
As can be seen from the site plan, Oshkosh River Development, LLC is proposing to pursue the
same general land use plan that had been proposed by Akcess Acquisition Group — which can be
seen as a factor in approving the assignment of the project to this new group.
As with the Akcess agreement, the RDA would also convey the development sites for $1. While
the agreement would be updated to meet the needs of the new developer group, the Term Sheet
still requires proof of financing and the completion of construction on a project to project basis.
Changes in the Term Sheet include:
• Oshkosh River Development, LLC, would have the rights for conveyance of the
Development Areas south of Marion Road for $1, and they would have an option
on the area north of Marion Road, with conveyance of parcels to be created in that
area for $1 at the time of project implementation.
• With execution of the option north of Marion Road, Oshkosh River Development,
LLC will commit to a total valuation of $27 million.
• Development Area 3, the projected hotel site, would be excluded from the
agreement between the City/RDA and Oshkosh River Development, LLC.
• The RDA would directly solicit interest from hotel developers in Development
Area 3. It would be anticipated that the RDA would set a minimum valuation on
a project for that site of $6 million in order to pursue the $33 million valuation
that had been part of the Akcess agreement, as modified earlier this Summer.
• The revised agreement will not include a Guaranteed Tax Payment provision, as
was the case with the Akcess agreement.
• The revised agreement would include a provision requiring the City/RDA to build
the public transient docks located adjacent to the riverwalk to the west of Jackson
Street when the land side development projects are undertaken.
As noted, the updated agreement would not include a Guaranteed Tax Payment provision. While
Akcess had been willing to have that requirement, Oshkosh River Development, LLC does not
believe this is appropriate under the format that includes an option on the area north of Marion
Road.
If Oshkosh River Development, LLC executes the option, they will still commit to $27 million in
valuation (that would help the City/RDA pursue the approximately $33 million in valuation that
is needed to cover costs of preparing the area for development and for undertaking significant
public improvements).
One way to look at the Guaranteed Tax Payment provision is to recognize that if Oshkosh River
Development does not take the assignment, the City/RDA would be faced with the prospect of
pursuing projects on a parcel to parcel basis, and it is highly unlikely any single parcel developer
would take on the obligation/responsibilities of the overall Guaranteed Tax Payment provision
that had been oriented to a "Master Developer" approach as reflected in the Akcess agreement.
Oshkosh River Development, LLC has asked that the due diligence period be extended an
additional 30 days from the originally proposed date of December 31, 2008. The December 31st
date was established to give the Developer 90 days to complete its due diligence after RDA and
Council approval of the Assignment. Given the additional time it took for the Assignment to be
reviewed and acted upon, it would appear appropriate to extend the due diligence period an
additional 30 days to January 31, 2009.
Oshkosh River Development, LLC had also asked for a provision relative to the disposition of
the parcel proposed for hotel development should the hotel proposal not move forward. The
proposed Developer Agreement includes a provision giving the City and the RDA two years to
secure a development proposal for a hotel, if the City and RDA are unable to secure a hotel
development within that period, then Oshkosh River Development, LLC would have exclusive
rights during the following year to develop that area. Should the Developer elect not to
undertake a project within that time, then the City and RDA would be free to solicit proposals for
a different type of development for that parcel.
With approval of the assignment, the City/RDA would be able to work with a local group with
significant development experience, and a successful track record of implementing a variety of
projects.
FISCAL IMPACT
As indicated in the analysis, Oshkosh River Development, LLC is proposing to tackle the Phase
II Area on a two pronged basis.
First, if the group decides to move forward with the project after conducting an appropriate level
of due diligence, they would agree to undertake projects along the riverfront that would provide
added valuations of at least $12 million. Projects would include the first of two proposed office
buildings with an anticipated value of $4 million; a restaurant to the immediate west of the office
building with 'a projected value of $2 million; and on the west side of the Phase II Area a
multiple family residential development with a value of $6 million.
Secondly, the agreement would be structured to then provide Oshkosh River Development, LLC,
with the ability to exercise an option on Phase II area north of Marion Road west of Jackson
Street. If the option is exercised Oshkosh River Development, LLC will commit that by
December 31, 2012 the hard costs of construction of all improvements north and south of Marion
Road (excluding the proposed hotel site) would equal or exceed $27 million.
If the $27 million in new valuation is realized with Oshkosh River Development, LLC, that
valuation would hopefully be combined with a minimum valuation increase of $6 million for the
hotel site (based on the RDA directly soliciting developers for that location), which would bring
total new valuation in the Phase II area to approximately $33 million, which is the approximate
figure needed to cover costs associated with a $6.36 million Lease Revenue Bond (LRB) issued
in 2006 and the new LRB that will be issued to cover costs of sea wall, riverwalk, and park area
improvements.
RECOMMENDATION
After the RDA laid over consideration of the assignment request on September 17 to provide
an opportunity for another potential developer to bring forward a project proposal (which was
subsequently withdrawn), the RDA gave approval to the assignment and to an updated/modified
Development Agreement with Oshkosh River Development at a special meeting on October Stn
Oshkosh River Development, LLC is asking that the City/RDA approve a Term Sheet that would
provide for revising the Development Agreement for the Marion Road Phase II Redevelopment
Project. Attached to the Resolution are the Term Sheet and the general site plan. A Draft
Development Agreement is included with the Memo to Council in the agenda material on this
item.
Approved,
City Manager
Amended and Restated Development Agreement
This Amended and Restated Development Agreement is made this _ day of
October, 2008, by and between the City of Oshkosh, Wisconsin, a Wisconsin municipal
corporation, and the Redevelopment Authority of the City of Oshkosh, Wisconsin, and
Oshkosh River Development, LLC, a Wisconsin limited liability company.
Recitals
(i) The City of Oshkosh and the Redevelopment Authority of the City of
Oshkosh and Akcess Acquisition Group - Oshkosh, LLC ente nto a Development
Agreement dated July 11, 2007, with respect to the
ac
' ion or lease by Akcess
Acquisition Group - Oshkosh, LLC of certain land as d therein (the "Prior
Development Agreement ").
(ii) Akcess Acquisition Group
Authority permit it to assign the Prior DeN
asked e City and the
e D
it to th veL
No re, i side '' '' a recitals and mutual agreements herein set
forth, erg L al consideration, the receipt and sufficiency of which are
hereb knowledge , artie agree as follows:
1. Vtoodevoelop iew. On or about September 22, 1998, May 25, 1999, June
27, 2000, ar 05 the City of Oshkosh established the Marion Road/Pearl
Avenue Redese II Area. Portions of the Marion Road/Pearl Avenue
Redevelopmeated in Tax Increment District No. 13 and portions are
located in Tax rict No. 21. Oshkosh River Development, LLC, has made a
proposal to thlop the Project Land (as hereinafter defined) comprised of
Development Areas 1 -A, 1 -B, 2, and 4 in the Marion Road/Pearl Avenue Redevelopment
Phase II Area, as shown on Exhibit A attached hereto. Oshkosh River Development,
LLC, has asked the City and the Authority for an option to purchase and develop the
Option Land (as hereinafter defined) comprised of Development Area 5 in the Marion
Road/Pearl Avenue Redevelopment Phase II Area, as shown on Exhibit A attached
hereto. This Development Agreement sets forth the terms on which the City of Oshkosh
and /or the Redevelopment Authority of the City of Oshkosh will convey all or portions of
the Project Land to Oshkosh River Development, LLC, and grant an option to Oshkosh
River Development, LLC to purchase the Option Land and the terms on which Oshkosh
QB \6560109.3
Osh Riv,Dev Agmt 10/24/08
2. Definitions As used in
the following meanings:
ina terms shall have
(f) 11 etion D means: For each of Development Areas 1 -B, 2
and 4, December 31, 200 , e ment Area 1 -A, December 31, 2013; and if the
option to purchase the Option exercised by Developer, for Development Area 5,
December 31, 2012.
(g) "Developer" means: Oshkosh River Development, LLC, a
Wisconsin limited liability company, its permitted successors and assigns.
QB16560109.3 2
Osh Riv,Dev Agmt 10/24/08
(h) "Development Area" means: each of the Development Areas 1 -A,
1 -B, 2, 4 and 5, as shown on Exhibit A.
(i)
Development Area.
Parcel" means: The la a
QB16560109.3 3
Osh Riv,Dev Agmt 10/24/08
Osh Riv,Dev Agmt 10/24/08
Developer; and (d) if the option to purchase the Option Land is exercised by Developer,
the City or the Authority will convey the Option Land to the Developer and the
Developer, at its cost and expense, will construct, install fish and equip the Option
Project.
4.
'on ditions Precedent
thorit0k, Oblinations. In
f ion, installation, is d equipping o Development Area
rod of less than the a unt fined to be ne by the City for
he Proje he Option Proj to me alues set fo aragraph 6(u)
w. The opment Area t Break must othe ow a state
s accept a the City and t uth
(b) r before Janua , 2009, De shall pr the
ity an d uthor ith a timetable onstruction let' of the
ct. O efo days prior to the sing Date for on Land,
er sh City and the thority with etable for
cons & and eti Option Proje
QB \6560109.3 5
Osh Riv,Dev Agmt 10/24/08
lans mu ly with the to s of eement
eloper s ve obtained t Authori roi
lans for roject or the 'on P
Ci n Com on's review a Mon
Develo t Area s for the Project he Option.
of t velopment
case ma and the
as the
for c ance h all applicable ning and 1 r e rules,
tions d' Further, prior Closing for ea roject
La the Developer sha ave obtained itional
use p may uir articular De opment Area Project
QB \6560109.3 6
Osh Riv,Dev Agmt 10/24/08
days prior to
W per shall
the City
of Developer; and/or
A deposit with t itle Company osing for
tion Project, a e case may qual to the
gregate cos the Project or the Option
e, a in the gre of (A) the Development
e Pro e Optio ct, as the case may
the gu um price construction
h on Project, ase may be, plus the other
d fo onstruction, installation and equipping of
reject, a as may be, minus (ii) the proceeds of
for the or the Option Project, as the case
availab or disbursement and be disbursed for
ct, as the case may be, prior to the disbursement
for the Project or the Option Project, as the case
ndividual payment guaranties from the principals
QB16560109.3 7
Osh Riv,Dev Agmt 10/24/08
(iii) Additional collateral to secure the obligations of the
Developer; and/or
QB16560109.3 8
Osh Riv,Dev Agmt 10/24/08
(m) Any agreements required of the City or the Authority by
any Project Lender and any documents or instruments required by any Project
Lender to be executed by the City or the Authori ust be acceptable to the
City and the Authority.
(o) Orill
ect Land, Develope
1 -B, 2, 3, and
a. On
per
law c
Area
undari
the cost of
QB16560109.3
Osh Riv,Dev Agmt 10/24/08
land wit]
30 days
which contracts and aXt
e
ity and the Authority. d
or the ject and tt
f the P ct and
th elonm rea s
rid uthority u �toolonV�evelopment Agreement
I /or uthority y the Project Land to
eloper t is its option to purchase the Option
are con I upon the satisfaction of all of the
times p ds set forth above. If each of the
in the ime period within which such condition
ove, then the City or the Authority, at either of
etions, may terminate this Agreement, in which
ent shall have any further liability or obligation
after the date of termination. All liabilities and
prior to the date of termination of this Agreement
ement.
9
All submissions given to the City and the Authority to satisfy the conditions
contained in this Paragraph 4 must be satisfactory in form and content to the City and the
Authority, in their sole discretions, unless otherwise specifk#&y stated.
Subject to the provisions of paragraph 7(a) , in event the City or the
Authority cause a delay in the Developer's meetin eriods forth above solely
because of the City's or Authority's failure to re o per in a reasonably timely
manner, then the time period for the particu ac shall ended by the number of
days of the delay caused by the City or th it .
results of the
be Na le in all res to Developer.
e oft e discretio eveloner is
then
0
The
Developer represents and
(a) All copi of documents, contracts and agreements which
Developer has furnished an will furnish to the City and the Authority, are and will
be true and correct in all material respects.
QB16560109.3 10
Osh Riv,Dev Agmt 10/24/08
(b) To it knowledge, Developer and its members have paid, and will
pay when due, all federal, state and local taxes. Developer will promptly prepare and
file returns for accrued taxes prior to any taxes becom' elinquent.
(c) Developer will pay for all wor rme d materials furnished
for the Project.
There is'qWfigationNiftoceeding pending or threatened against
QB \6560109.3 11
Osh Riv,Dev Agmt 10/24/08
(i) The Development Area Cost Breakdowns will accurately reflect all
Development Area Project costs that will be incurred in the development,
completion, construction, furnishing and equipping of rticular Development Area
Project, and the City and the Authority shall bee ely on the Development
Area Cost Breakdown in connection with each men ea Project.
(j) Developer is not in defau on applicable period of grace)
of any of its obligations under any of a ment trument entered into in
connection with the Project Land, the th ption r the Option Project.
(k) Prior to com of constru 'on f the Pro nd if the option
to purchase the Option Land i d, Art Dumke and /or Andy e shall at all
times own not less than 51% in gregate of the members ' terests in
of Project and if tion to
ke an Andy Dumke s I t all
manag nt and control o e
d 'on Project and t
b oc nts of Develop
Such a2emen nd control of
and if the option
shall not sell,
L tor the
ne a in the
QB16560109.3 12
Osh Riv,Dev Agmt 10/24/08
QB \6560109.3 13
Osh Riv,Dev Agmt 10/24/08
(s) Developer
(i) As soon a sible and in any event N,ity
business days after receiving notice of currence f any default, Authority in writin f the action which g take r proposed Developer with respec reto.
(ii) notify City an o e
of any litigation or admini oceeding that cause a representation
and warranty or covenant o r contained in greement to become
unt aterial respect.
Notify Ci and uthority, a oxide copies,
im tely upo t, of any not plea ation, indic complaint,
order cree fro federal, state local ent agenc gulatory
body, as or alle circumstance n uires or m a
ancial co tion b eloper or an in ation, cle emoval, ial
or othe onse r on the part o ve10 e un nvir ental
la regu or nances or which s damages or urinal or
puniti lties t Developer an alleged vi on of any
environme ws. ru QU ordinances.
(u) Deve ees that as of December 31, 2009, the assessed
value of the new improve nstructed by the Developer on Development Area
1 -B, 2 and 4 (not includin value of the land) will be not less than $12,000,000;
and as of December 31, 013, the assessed value of the new improvements
constructed by the Developer on Development Area 1 -A (not including the value of
14
QB \6560109.3
Osh Riv,Dev Agmt 10/24/08
the land) will be not less than $4,000,000; and that if the Developer exercises its
option to purchase the Option Land, as of December 31, 2012, the assessed value of
the new improvements constructed by the Develo= elopment Areas 1 -A, 1-
B, 2, 4, and 5 (not including the value of the land) than $27,000,000.
(x) E
Plans unless the I
evidence that it has
ect
the parties.
Area 4 and an
hk assignment
(y) Developer
ftelv reflect all De
shall not make hanges any
shall have pr ovi t
vailable funds su a
Area Projel
t Area Cost
each Develo
%tproltrucKction, et costs
fm
and the
Dev , at its cost a
slips ent to the rive
n shall caned by the Ci
long- eas a terms and cond
enant shall at all
near
to the
eveloper, at i
co ion with the c
slips. lans and spec
written L lof the
withhold i sole dis
correct at all times
covenants contained
the 74ftrity,
and the AuthoN
r such changes.
Area Cost Breakdown
'll be incurred by the
and equipping of
ut are entitled to
a
;ntation warran herein shall be true and
the term is Agr Contained
t. Developer shall comply with all
,at all tim ring the term of this Agreement.
7. Re resental"
Authority The City and the
Developer as follows:
represent and warrant to, and covenant with, the
QB \6560109.3 15
Osh Riv,Dev Agmt 10/24/08
(a) The City will review all building permits applications, zoning
change applications, conditional use permit applications and the plans and
specifications for each Development Area Project expeditiously as possible,
taking into account applicable laws, rules, regulatio inances.
(c) The City and th
located adjacent to the riverwalk near
constructed at or abo the same time as
(d) It is
Development Area 3, bu
City /Authority for future
Authoritv are unable to
icies
such
:�h De opment Area
risks as are insured
replacement cost of
and personal property
extended replacement
builder's ris
the Authority;
(c) DI
insurance covered
contractual liability in
insuring against bodily
Development Area Project,
y satisfactory to the City and
f this Agreement, commercial general liability
rehensive general liability policy including
maintained by owners of similar projects, and
iding personal injury, death and property damage;
QB \6560109.3 16
Osh Riv,Dev Agmt 10/24/08
Each Insurance Policy shall require the
written notice to the City and the 4Au
such policy. The City and the Au
payees on all policies of insurance
o vide at
M rial te c
shall be a as an
orker's compensation
9. Damage /Destruction Dev
and obligations under th greement in the e
any part of any Develop Area Project.
casualty to any part of any pment Area
Development Area Project, It
Development Area Project an is exercised, the Option Proj
shall n4
fire,
ty (30) days prior
or cancellation of
al insureds /loss
released from
L any other damage or ar.
nletion of the
a manner to
U;e a
ved by the
to
, to complete tRq
;,has e Option Land
the values set forth in
L reakdown resulting
the Authority.
shall
r in this
pr in
respect as of the
(d) Con on Development Area Project shall be abandoned
:han thirty (3 tive days and Developer does not re- commence
)n within 30 da owing notice from the City or the Authority of the
used by the ab onment, or if any Development Area Project or the
the Option Project, as the case may be, is not completed on or before the
n Date for that Development Area or Project or Option Project, as the case
OB16560109.3 I /
Osh Riv,Dev Agmt 10/24/08
may be, or if any portion of the Project or the Option Project, as the case may be,
shall be damaged by fire or other casualty and not be repaired, rebuilt or replaced as
required by Paragraph 9 above; or AL
(e) If there is a default in paragra
(f) Developer or any of
become insolvent or generally not pay
its/his/her inability to pay, its/his/he
assignment for the benefit of cre
substantial amount of its/his/he s; or (iii) o e
relief' within the meaning of States Bankrupt
bankruptcy, for reorganization or to a plan or other
or (iv) have a petition or application gainst i it
similar proceeding, have such a proce comme
such petition, applica or proceeding sha ain t
ninety (90) days or De or any of its me or
answer to such a petition o ation, admitting
(v) apply to a court for t tment of a rec
its/his/her assets or properties, receiver or cus
its is or properties, or t consent, a:
ge ninety (90) da fter ointment;
ete liaul f its/his/her ass ; or
shall
A def hall occur un
er 7ithou ect t Project or the
in ati Project Lender
within e pe the docun
covenants under t eement.
convey any further po of the
other person or entity s ton
the Option Land shall auto
•angemen creditors;
other
1 Project,
.n(s), which
inde
lybe
A cured
loan or
occ any Def1VJ&ithout notice (other
QB16560109.3 18
Osh Riv,Dev Agmt 10/24/08
..
Authority
without
specifically
y is intended to
Wae cumulative
now or
or the A
urther exercise
n y of the forel
I
r obligation
the
h .the eJ
and all such
Cm d by the De
ay be, on dei
Developer
Project, an
and any other
the fees of the C
no remedy he
we any other reme
be in dition to every
r existing at law or in
exercising any right
single or 1 exercise of any
exercise o other right or
ns, neither ity nor the
ect to any matters
Le De er shall pay all elks and expens , ate th the
QB \6560109.3 19
Osh Riv,Dev Agmt 10/24/08
the Authority shall have the right, but shall not be obligated, to obtain such insurance or
pay such fees, assessments, charges or taxes or take such action as is necessary to remedy
the failure of Developer to comply with the documents, c h ts or agreements affecting
the Project or the Option Project, as the case may be, t event, the cost thereof
shall be payable by Developer to the City or the Aut s the e may be.
14. Cost Overruns Any cost
Project or the Option Project shall be paid f�
15. Parking Developer
obligation to provide adequate par
with all applicable laws, rules,
expense.
Development Area's Devi
and replaced as necessary
the Option PrO
L e Oe Option Proj
d must be
QB16560109.3 20
Osh Riv,Dev Agmt 10/24/08
event a court finds the Tax - Exempt Covenant is not valid or enforceable or if for any
reason the Tax - Exempt Covenant is terminated, then Developer, its successors and
assigns or any other owner in title to any part of the Projeqfte Project Land, the Option
e, as needed, rtion Prod roject LalWption Project and/or
?tion Land.
terms "hazard bstanc N le explosives, radioactive
materials, rdous wastes, suted materials, including without
limitation, ubstances de an the definition of "hazardous
substances," ` ous wastes,' s," "toxic substances" under any
applicable federa to or local 1
This paragraph VSafezards. nstrued as limiting the Developer's right to sue
the City and /or the Aent of a default or breach by the City or the
Authority under this A
19. Fire an Developer agrees to construct, or cause the
construction of, each Development Area Project in conformance with all fire and safety
standards specified by applicable law.
QB \6560109.3 21
Osh Riv,Dev Agmt 10/24/08
(c)
Area 3.
the riverwalk near
It is the intention that verwal section identified in this subparagraph
24(a) an will b ected to Wis n Street IOUWASH Recreation Trail in
accord wit adopted Fox Corrido rwalk Plan and Design Guidelines.
The City will coo the makin he Publ' mprovements with the development of
the Project as describ aragraph and paragraph 7(c) above.
QB \6560109.3 22
Osh Riv,Dev Agmt 10/24/08
the Project or Project Land or Option Project or Option Land shall place any piers or boat
slips or other improvements or structures of any kind in or on the Fox River, or any other
body of water near or surrounding the Project Land, the on Land and /or the Public
Improvements without the City's and the Authority's pr' consent, which consent
the City and /or the Authority can withhold in their re e so cretions.
Development Area Kemediation Plan 1 orth in t
Proj
.t C attache eto. 1 he
environmental diation
City may
r a Devel
Area. respect to the
Land, the wing terms
shall apply
cost
Area
(b)
than the reme set
veloper will
iation. Any
re ion shall be i
Brea
(c)
grants from v gove
the remediation. Nk
QB16560109.3
Osh Riv,Dev Agmt 10/24/08
er requests evel of rem ton greater
th Developmen rea RemedRitioin Plan, the
ed c carrying the increased level of
eloper reed t for environmental
fI
in evelop velopment Area Cost
ity will rat with the Developer in obtaining
ties to he Developer's costs associated with
23
discretions.
respective
of
Agreement
Developer,
r en cov enants, liabilities
delivered pursuant to
of this Agreement and the
QB \6560109.3
Osh Riv,Dev Agmt 10/24/08
24
If to the City or the
Authority:
If to the Developer:
City of Oshkosh, Wisconsin
215 Church AAQue, P.O. Box 1130
Oshkosh, 54902
Attention: Andy Dumke
csimile No.: 920 - 230 -64
Ntect s be th s with respec e subject matter
limitatio the t f the term executed in
and and t ption
ment is inten or eflt of De d
QB \6560109.3
Osh Riv,Dev Agmt 10/24/08
25
provisions of this Agreement in such jurisdiction or affecting the validity or
enforceability of any provision in any other jurisdiction.
successors and as
(o) The is Agreement are for reference only and are not
intended to modify any o sand conditions of this Agreement.
(p) Nothing ntained in this Agreement is intended to or has the
effect of releasing Developer from compliance with all applicable laws, rules,
QB16560109.3 26
Osh Riv,Dev Agmt 10/24/08
(q) This Agreement is the product
parties hereto and no term, covenant or provisi
term, covenant or provision shall be construe
basis that one party or the other drafted t
condition contained herein.
(q) This Amended
restates and supercedes the Prio
In Witness Whereof, this Agreement is
18, t ove -named
er and City Clerk,
be the persons who
hority.
ary Public, State of Wisconsin
Commission expires:
ao among all of the
ilure to include a
p ereto solely on the
or any term, covenant or
QB \6560109.3 27
Osh Riv,Dev Agmt 10/24/08
regulations and ordinances in addition to compliance with all terms, conditions and
covenants contained in this Agreement.
Redevelopment Authority of the City of
Oshkosh, Wisconsin
By: Any __
Chairman
STATE OF WISCONSIN )
)ss.
COUNTY )
Personally appea before me this _
an Ip
respectively, of the Redevel t Authority of
known to be the persons w uted the i
Authority and by its authority.
ame:
QB16560109.3 28
Osh Riv,Dev Agmt 10/24/08
Director
2008, the abo
Ken ecutive JP,
Wisconsin, to
behalf of
Public, StIWWisconsin
Oshkosh River Development, LLC, a
Wisconsin liV&d liability company
STATE OF WISCONSIN )
)ss.
COUNTY )
By:
Nar
Personally appeared before me this
named
a Wisconsin limited liabilr mpany, to me
foregoing agreement on beha id limited
y of , 200
f OshkNh River Develo
be th rson who execufl
y its authority.
Name: NMI
No Pub to of Wisconsin
QB \6560109.3
Osh Riv,Dev Agmt 10/24/08
29
Exhibit A
(Development Areas)
QB16560109.3
Exhibit B
(Marion Road/Pearl Avenue Redevelopment Phase II Area)
QB16560109.3 -31-
Exhibit C
General Remediation Plan
Marion Road/Pearl Avenue Redevelopment Phase II Brownfield Properties
18 feet are present throughout the anticipated
typically consists of foundry sand, wood chip
material. Due to the presence of this fill mater
will require an application to
In addition to the fill materials, other
riverfront properties
1. Chlorinated c
limited area in
area. is fill material
sand, an organic
lent of Nat al Resources
identified on the
C groundwater quality were present in a
former Mercury Marine property. Soil
ions of chlorinated compounds may be
oleum impa soil dfflToriner underground and above ground storage tank
To successfully redevelop the riverfront Development Areas, while establishing and
maintaining environmental closure, direct contact with the underlying soils will be
prevented, groundwater collection and construction dewatering will be limited, and any
soil fill generated during construction will be managed as a solid waste. Redevelopment
on a historic
QB16560109.3 -32-
plans shall recognize the need to control environmental remediation costs, by
incorporating the following general elements:
1. Incorporate hardscaping and landscaping to reduce disturbance in the area of the
former chlorinated solvent release (southeast portion of the Mercury Marine
property).
2. Establish site grading to reduce the volume of soil which will be transported off
site as a solid waste, or potentially as a hazardous waste kdirct 3. Utilize paved parking areas and hardscape to act a prevention caps,
eliminating the need for extensive excavation a of underlying fill
material.
4. Although some areas of the brownfi<pro s orth o ion Road may be
suitable for conventional building consider co ting buildings
and other structures utilizing a pile f uce the amo cavation
required and limit the potential fo o watering an oundwater
treatment.
5. Maintain a basement or Lowe vel floor elevatAftbove the normal groundwater
designing site improWentsJJAWng the NWon Road/Pearl Avenue Brownfield
redevelop Deta env W "°a al remediation plan for each Development
Area e develop nc in cooperation with detailed redevelopment plans
wit th 1 of obtainin ertifi e of Completion under the Voluntary Party Liability
Exemption gram. tegrating environmental remediation with property
redevelopment ontr osts and maintain the project momentum for all stakeholders.
QB16560109.3 -33-