HomeMy WebLinkAboutRDA-River DevelopmemtAmended 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 entered into a Development Agreement dated July
11, 2007, with respect to the acquisition or lease by Akcess Acquisition Group - Oshkosh, LLC of
certain land as defined therein (the "Prior Development Agreement ").
(ii) Akcess Acquisition Group Oshkosh, LLC has asked that. the City and the
Authority permit it to assign the Prior Development Agreement to the Developer.
(iii) Developer has asked the City and the Authority to consent to the assignment and
to enter into this Amended and Restated Development Agreement with respect to the acquisition,
option, lease and development of the Project Land and the Developer has asked the City and the
Authority to grant it an option with respect to the Option Land (both as hereinafter defined).
(iv) The City and the Authority have consented to the assignment and agree to amend
and restate the Prior Development Agreement on the terms and conditions set forth herein, for
the purpose of setting forth certain rights, duties and obligations of the parties with respect to the
development of the Project Land and the Option Land.
Now, Therefore, inconsideration of the recitals and mutual agreements herein set forth,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Project Overview On or about September 22, 1998, May 25, 1999, June 27,
2000, and January 11, 2005 the City of Oshkosh established the Marion Road/Pearl Avenue
Redevelopment Phase II Area. Portions of the Marion Road/Pearl Avenue Redevelopment Area
are located in Tax Increment District No. 13 and portions are located in Tax Increment District
No. 21. Oshkosh River Development, LLC, has made a proposal to the City to develop 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 Development,
LLC will develop that portion of the Project Land conveyed to it. The parties agree that the
development of the Project Land and/or the Option Land must best achieve the goals and
objectives for the Project Land and the Option Land as reflected in the Marion Road/Pearl
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Avenue Redevelopment Plan and it is a condition of the City's and the Authority's obligations
under this Agreement that such goals and objectives be achieved.
2. Definitions As used in this Agreement, the following terms shall have the
following meanings:
(a) "Affiliate" means: (i) a person or an entity that directly or indirectly
controls, or is controlled by, or is under common control with, Developer; or (ii) a person or
entity that directly or indirectly beneficially owns or holds any ownership interest in Developer;
or (iii) any entity in which Developer or any member of Developer has an ownership interest; or
(iv) any person or entity that is an officer or director or member of Developer. As used in this
definition, the term "control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a person or entity, whether through the
ownership of voting securities, by contract or otherwise.
(b) "Authority" means: The Redevelopment Authority of the City of
Oshkosh, Wisconsin, its successors and assigns.
(c) "City" means: The City of Oshkosh, Wisconsin, a Wisconsin municipal
corporation, its successors and assigns.
(d) "Closing" means: With respect to the Project Land, the later to occur of
(i) the closing of Project Lender's loan(s) for the Project, and (ii) the satisfaction of all conditions
precedent to the commencement of disbursement of the Project Lender's loan(s) for the Project.
With respect to the Option Land, the later to occur of (i) the closing of Project Lender's loan(s)
for the Option Project, and (ii) the satisfaction of all conditions precedent to the commencement
of disbursement of the Project Lender's loan(s) for the Option Project.
(e) "Closing Date" means: With respect to the Project Land, the date on
which the Project Lender's loan(s) for the Project is closed and all conditions to the
commencement of disbursement of the Project Lender's loan(s) for the Project have been
satisfied. With respect to the Option Land, the date on which the Project Lender's loan(s) for the
Option Project is closed and all conditions to the commencement of disbursement of the Project
Lender's loan(s) for the Option Project have been satisfied.
(f) "Completion Date" means: For each of Development Areas 1 -B, 2 and 4,
December 31, 2009; for Development Area 1 -A, December 31, 2013; and if the option to
purchase the Option Land is 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.
(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 Cost Breakdown" means: For each Development
Area, a current completion and draw schedule and cost breakdown of construction and non-
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construction cost items (i.e., a line -item budget), clearly identifying development, construction,
furnishing, equipping, financing, contingency and all other direct and indirect costs of
development, construction and installation of the Development Area Project in accordance with
the Development Area Plans for the Development Area Project.
(i) "Development Area Parcel" means: The land comprising a Development
Area.
0) "Development Area Plans" means: For each Development Area, final
detailed plans and specifications for the Development Area Project to be constructed thereon,
which shall include, without limitation, the following: all improvements now located or to be
located on the subject Development Area, the footprint of all improvements and the square
footage of all improvements, all easements, pathways, exterior boundary lines, walkways,
parking and circulation areas, adjoining public streets and alleys, utilities, exits and entrances, all
signage, curbs, gutters, sidewalks, landscaping, medians and street lighting, all materials to be
used in construction, all interior and exterior finishes, the number and types of units, the number
of stories in the buildings and parking structures or lots, building sections and elevations,
description of room and space sizes, plan arrangement of rooms and functional spaces, exterior
elevations, the stacking of floors and all construction elements, a narrative description of all
structural systems, mechanical systems, electrical systems and any specialty systems. The
Development Area Plans for a Development Area Project must be in sufficient detail to permit
Developer and the General Contractor to enter into a guaranteed maximum price construction
contract for the Development Area Project.
(k) "Development Area Project" means: The project to be constructed and
developed on a Development Area Parcel by Developer pursuant to Development Area Plans
approved by the City and the Authority. The Development Area Project for Development Area
1 -B is an approximately 25,000 square foot office building with associated parking and other
ancillary improvements (the "First Office Building "); the Development Area Project for
Development Area 1 -A is an office building with associated parking and other ancillary
improvements (the "Second Office Building "); the Development Area Project for Development
Area 2 is a restaurant with associated parking and ancillary improvements (the "Restaurant "); the
Development Area Project for Development Area 4 is an approximately 64,000 square foot
apartment building or condominium project with associated parking and other ancillary
improvements (the "Apartment /Condominium Building "). The Development Area Project for
Development Area 5 will be determined by mutual agreement of the parties and must be
acceptable to the City and the Authority, in their sole discretions.
(1) "General Contractor" means: For each Development Area, the general
contractor hired by the Developer or the Developer itself, if the Developer.is acting as general
contractor for a Development Area, to construct the Development Area Project under a
guaranteed maximum price contract.
(m) "Marion Road/Pearl Avenue Redevelopment Phase II Area" means: The
land shown on Exhibit B attached hereto.
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(n) "Marion Road/Pearl Avenue Redevelopment Plan" means the City's
redevelopment plan governing the Marion Road/Pearl Avenue Redevelopment Phase II Area.
(o) "Option Land" means: The land comprising Development Area 5.
(p) "Option Project" means: The improvements to be constructed and
development by Developer on the Option Land.
(q) "Project" means: The improvements to be constructed and developed by
Developer on the Project Land.
(r) "Project Architect" means: For each Development Area, the architect
hired by Developer to design the Development Area Project and to perform all other architectural
services in connection with the Development Area Project.
(s) "Project Land" means: The land comprising Development Areas 1 -A, 1-
B, 2, and 4 as shown on Exhibit A attached hereto.
(t) "Project Lender" means: For each Development Area, one or more
mortgage lenders making the initial construction/permanent loan(s) for the Development Area
Project, in an aggregate amount not to exceed the value of the Development Area Project.
(u) "Project Plan" means: The Project Plan for the Oshkosh Tax Increment
District No. 21, dated February 14, 2006, as amended from time to time.
(v) "Public Improvements" means those improvements described in paragraph
24 below.
(w) "TIF District" mean: Oshkosh Tax Increment District No. 21.
(x) "Title Company" means: For each Development Area, the title company
issuing the loan policy of title insurance to the Project Lender for the respective Development
Area Project.
3. Commitments Subject to the terms and conditions of this Agreement: (a)
Developer, at its cost and expense, will construct, install, furnish and equip the Project; and (b)
unless otherwise agreed by the parties, the City will construct the Public Improvements; (c) the
City or the Authority will convey the Project Land to the 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,
furnish and equip the Option Project.
4. Conditions Precedent to City's and Authority's Obligations In addition to all
other conditions and requirements set forth in this Agreement, the obligations of the City and the
Authority under this Development Agreement (including without limitation, the obligation of the
City and/or the Authority to convey the Project Land and/or the Option Land to Developer and
the right of the Developer to exercise its option to purchase all or any portion of the Option
Land), are conditioned upon the satisfaction of each and every of the following conditions:
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(a) On or before 30 days prior to the Closing Date for each of the
Project Land and the Option Land, Developer, at its cost, will provide the
Development Area Cost Breakdown for each Development Area in the Project Land or
the Option Land, as the case may be, to the City and the Authority. The Development
Area Cost Breakdowns shall be certified by Developer, the Project Architect and the
General Contractor as accurate and complete. The Development Area Cost
Breakdowns shall show that all hard costs of construction, installation, furnishing and
equipping of each Development Area Project are not less than the amount determined
to be necessary by the City for the Project and the Option Project to meet the values
set forth in paragraph 6(u) below. The Development Area Cost Breakdowns must
otherwise show a state of facts acceptable to the City and the Authority.
(b) On or before January 31, 2009, Developer shall provide the City
and the Authority with a timetable for construction and completion of the Project. On
or before 60 days prior to the Closing Date for the Option Land, Developer shall
provide the City and the Authority with a timetable for construction and completion of
the Option Project.
(c) Prior to the execution of this Agreement, Developer shall provide
the City and the Authority with evidence satisfactory to the City and the Authority that
Developer is authorized to enter into this Agreement and that the persons signing this
Agreement on behalf of Developer are authorized to sign this Agreement. On or
before the Closing Date for each of the Project Land and the Option Land, Developer,
at its cost, shall provide a certified copy of its articles of organization and operating
agreement and a certificate of status issued by the Wisconsin Department of Financial
Institutions. Such formation documents must show a state of facts as to ownership,
management and control acceptable to the City and the Authority. If any member or
manager of Developer is an entity, then that entity's organizational documents and a
certificate of status for said entity must also be provided to the City and the Authority.
Said entity's organizational documents must show a state of facts acceptable to the
City and the Authority.
(d) On or before 60 days prior to the Closing Date for each of the
Project Land and the Option Land, Developer, at its cost, shall obtain an unconditional
written financing commitment(s) from the Project Lender, under the terms of which
Project Lender agrees to make mortgage loan(s) to Developer for the purpose of
construction, furnishing, equipping and installation of the Project or the Option
Project, as the case may be. On the Closing Date for each of the Project Land and the
Option Land, Developer shall close such Project Lender's loan(s) which are the
subject of the financing commitment(s), on terms and conditions set forth in the
financing commitment(s) and in connection therewith, at the City's or the Authority's
request, the Developer shall provide all documents to be executed in connection with
the Project Lender's loan(s) to the City and the Authority, which documents must be
acceptable to the City and the Authority and which documents must contain terms and
conditions consistent with this Agreement.
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(e) The Developer must submit the Development Area Plans for the
Project and if applicable, the Option Project, to the City and the Authority for the
purpose of zoning and land use review and approval and issuance of a conditional use
permit. On or before 60 days prior to the Closing Date for each of the Project Land
and the Option Land, Developer, at its cost, shall provide the City and the Authority
with the Development Area Plans for the Project or the Option Project, as the case
may be, which Development Area Plans must comply with the terms of this
Agreement. Prior to Closing, the Developer shall have obtained the Authority's
approval of the Development Area Plans for the Project or the Option Project, as the
case may be, and the City's Plan Commission's review and Common Council approval
of the Development Area Plans for the Project or the Option Project, as the case may
be, for compliance with all applicable zoning and land use laws, rules, regulations and
ordinances. Further, prior to Closing for each of the Project Land and the Option
Land, the Developer shall have obtained any conditional use permit as may be
required for a particular Development Area Project
The Developer and each Development Area Developer must also submit
State - approved Development Area Plans for the Project and/or the Option Project, as
the case may be, for a separate review and approval by the City for the purpose of
obtaining all other permits, approvals and licenses as are required in connection with
construction of a Development Area Project, including without limitation, all building
permits. On or before 60 days prior to a Closing Date for each of the Project Land and
the Option Land, Developer, at its cost, shall provide the City and the Authority with
the State - approved Development Area Plans for the Project or the Option Project, as
the case may be, which State - approved Development Area Plans must comply with the
terms of this Agreement. Prior to Closing for each of the Project Land and the Option
Land, the Developer shall have obtained any and all permits, licenses and approvals
from the City, including without limitation building permits, as may be required in
connection with the Project or the Option Project, as the case may be.
The Developer understands and agrees that the City and the Authority are
not required to issue any approvals, permits or authorizations unless the Development
Area and Development Area Project comply with applicable laws and ordinances, the
Project Plan and the Marion Road/Pearl Avenue Redevelopment Plan. It is understood
that the development of each Development Area must best achieve the goals and
objectives for the Project Land and the Option Land and the Public Improvements as
reflected in the Marion Road/Pearl Avenue Redevelopment Plan and it is a condition
of the City's and the Authority's obligations under this Agreement that such goals and
objectives be achieved.
(f) On or before October 31, 2008, each of the City and the Authority
shall have approved this Development Agreement and the transactions contemplated
herein, and all other agreements and/or transactions which require approval. On or
before the 30 days prior to the Closing Date for each of the Project Land and the
Option Land, any conditions imposed in connection with the City's or the Authority's
approval of any of the foregoing shall have been satisfied.
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(g) On or before 60 days prior to Closing Date for each of the Project
Land and the Option Land, Developer shall have provided to the City and the
Authority, evidence satisfactory to the City and the Authority that the Developer has
the funds sufficient to complete the Project or the Option Project, as the case may be,
in accordance with the Development Area Plans for the Project and the Option Project.
The evidence may include, without limitation, any one or more of the following, each
of which can be required at the City's sole option:
(i) A deposit with the Title Company at the Closing for each
of the Project or the Option Project, as the case may be, equal to the difference
between (i) the total aggregate cost of the Project or the Option Project, as the case
may be, as shown in the greater of (A) the Development Area Cost Breakdowns for
the Project or the Option Project, as the case may be, or (B) the combination of the
guaranteed maximum price construction contract for the Project or the Option Project,
as the case may be, plus the other costs which will be incurred for the construction,
installation and equipping of the Project or the Option Project, as the case may be,
minus (ii) the proceeds of the Project Lender's loan(s) for the Project or the Option
Project, as the case may be, which funds must be available for disbursement and be
disbursed for the Project or the Option Project, as the case may be, prior to the
disbursement of the Project Lender's loan(s) for the Project or the Option Project, as
the case may be; and/or
Developer; and/or
Developer; and/or
(ii) Individual payment guaranties from the principals of
(iii) Additional collateral to secure the obligations of the
(iv) Deposit with the City of a letter of credit in an amount
determined by City to guarantee the Developer's liabilities and obligations with respect
to the Project or the Option Project, as the case may be.
(h) The Closing for the Project Land must occur on or before February
28, 2009, unless Developer's due diligence period is extended as described in
paragraph 5 below. If the due diligence period is extended as described in paragraph 5
below, then the Closing shall occur on or before 15 days following the expiration of
any such extension.
(i) On or before 30 days prior to a Closing Date for each of the Project
Land and the Option Land, Developer, at its cost, shall provide the City and the
Authority with evidence satisfactory to the City and the Authority that the Project or
the Option Project, as the case may be, conforms and complies with all applicable
laws, rules, regulations and ordinances as well as any covenants, restrictions,
documents or instruments governing the Project Land, the Option Land, the Project,
the Option Project and /or the TIF District, including without limitation, the applicable
Project Plan, and the Marion Road/Pearl Avenue Redevelopment Plan governing the
Project Land and Project and the Option Land and the Option Project.
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0) No uncured default, or event which with the giving of notice or
lapse of time or both would be a default, shall exist under this Agreement. Developer
shall not be in default (beyond any applicable period of grace) of any of its obligations
under any other agreement or instrument with respect to the Project, Project Land,
Option Land or the Option Project, as the case may be, to which Developer is a party
or an obligor.
(k) On or before the Closing Date for the Project Land, counsel for
Developer shall provide an opinion reasonably acceptable to the City and the
Authority, stating among other things, that the persons executing this Agreement and
the agreements entered into hereunder are authorized to do so, that Developer has duly
authorized entry into this Agreement and the agreements entered into hereunder, that
this Development Agreement and any other agreements entered into hereunder are
enforceable, and other matters as are requested by City or the Authority.
(1) At or prior to the Closing Date for the Project Land, Developer
shall have executed and delivered to the City and /or the Authority any documents and
agreements as are required by this Agreement.
(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 Authority, must be acceptable to the City and the Authority.
(n) On or before 30 days prior to Closing Date for each of the Project
Land and the Option Land, Developer shall have entered into a guaranteed maximum
price construction contract with the General Contractor for the Project or the Option
Project, as the case may be, an architect's agreement with the Project Architect and all
other contracts and agreements necessary in connection with completion and
construction of the Project or the Option Project, as the case may be, which contracts
and agreements must be acceptable in all respects to the City and the Authority. The
guaranteed maximum price construction contract for the Project and the Option Project
must show that the costs of construction of the Project and the Option Project do not
exceed the amount shown on the Development Area Cost Breakdowns for the Project
and the Option Project.
(o) On or before 30 days prior to the Closing Date for the Project
Land, Developer shall divide the Project Land into the Development Areas 1 -A, 1 -B,
2, 3, and 4 in accordance with applicable laws and ordinances, so that each
Development Area is a distinct Development Area of real estate, including no other
land within the boundaries of the distinct Development Area. On or before 30 days
prior to the Closing Date for the Option Land, Developer shall divide Development
Area 5 in accordance with applicable laws and ordinances, so that each parcel of real
estate within Development Area 5 is a distinct parcel of real estate, including no other
land within the boundaries of the distinct parcel. All documents and instruments
required to satisfy this condition, including without limitation any plats, certified
survey maps, and any other documents and/or instruments shall be provided to City
and the Authority by Developer and shall show a state of facts acceptable to City and
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the Authority. The Developer and the City shall each pay one -half of the cost of
complying with this subparagraph (o).
The obligations of the City and the Authority under this Development Agreement and the
obligation of the City and/or the Authority to convey the Project Land to Developer, and the
right of the Developer to exercise its option to purchase the Option Land and to purchase the
Option Land, are conditioned upon the satisfaction of all of the conditions set forth above within
the times periods set forth above. If each of the conditions set forth above is not satisfied in the
time period within which such condition was required to be satisfied as set forth above, then the
City or the Authority, at either of their options, exercised in their sole discretions, may terminate
this Agreement, in which event, none of the parties to this Agreement shall have any further
liability or obligation to the other parties accruing on or after the date of termination. All
liabilities and obligations of the Developer arising prior to the date of termination of this
Agreement shall survive termination of the Agreement.
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 specifically stated.
Subject to the provisions of paragraph 7(a) below, in the event the City or the Authority
cause a delay in the Developer's meeting the time periods set forth above solely because of the
City's or Authority's failure to respond to Developer in a reasonably timely manner, then the time
period for the particular action shall be extended by the number of days of the delay caused by
the City or the Authority.
5. Conditions Precedent to Developer's Obligations In addition to all other
conditions and requirements set forth in this Agreement, the obligations of the Developer under
this Development Agreement are conditioned upon the satisfactory completion by Developer of
its due diligence with respect to the Project. Developer shall have until January 31, 2009, to
complete its due diligence with respect to the Project Land and the Option Land, including
without limitation, preparation of plans and specifications, preparation of marketing studies,
arrangement of financing for the Project, performance of any other studies or tests with respect to
the Project and/or the Option Project, obtaining of any licenses, approvals and permits with
respect to the Project and/or the Option Project, performance of a general inspection and
investigation of the Project Land and the Option Land and completion of a feasibility analysis
with respect to Developer's intended use of the Project Land and the Option Land. The results of
the Developer's due diligence investigation must be acceptable in all respects to Developer. If in
the City's and the Authority's exercise of their sole discretions, Developer is proceeding
diligently with the performance of its due diligence investigations, then Developer shall have the
right to extend this contingency for two additional periods of 30 days each.
If Developer has not notified the City and the Authority in writing of the satisfaction of
the condition set forth in this paragraph 5 on or before January 31, 2009, or if extended, the
expiration of the extension period(s) (but in no event later than March 31, 2009), the Developer
or City or Authority may terminate this Agreement, in any of their sole discretions by notice in
writing to the other parties, in which event, none of the parties to this Agreement shall have any
further liability or obligation to the other parties accruing on or after the date of termination. If
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the Developer has not given such notice to the City and the Authority on or before ten days
following January 31, 2009, or if this condition is extended, ten days following the expiration of
the extension period(s) (but in no event later than April 10, 2009), then Developer shall be
deemed to have waived or satisfied this condition. All liabilities and obligations of the
Developer arising prior to the date of termination of this Agreement shall survive termination of
the Agreement.
6. Representations and Warranties and Covenants of Developer The Developer
represents and warrants and covenants as follows:
(a) All copies of documents, contracts and agreements which Developer has
furnished and will furnish to the City and the Authority, are and will be true and correct in
all material respects.
(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 becoming delinquent.
(c) Developer will pay for all work performed and materials furnished for the
Project.
(d) No statement of fact by Developer contained in this Agreement and no
statement of fact furnished or to be furnished by Developer to the City or the Authority
pursuant to this Agreement contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary in order to make the statements herein
or therein contained not misleading at the time when made.
(e) Developer is a Wisconsin limited liability company, duly formed and
validly existing and has the power to enter into the Agreement and perform the transactions
described herein. Developer has or will obtain all necessary licenses, permits and franchises
to own its assets and properties and to carry on its business. Developer is in good standing
in the State of Wisconsin and all other jurisdictions in which failure to do so would have a
material adverse effect on its business or financial condition.
(f) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary limited liability company action of Developer and
constitute the valid and binding obligations of Developer enforceable in accordance with
their terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium,
general principles of equity, and other similar laws of general application affecting the
enforceability of creditors' rights generally.
(g) The execution, delivery, and performance of Developer's obligations
pursuant to this Agreement will not violate or conflict with Developer's articles of
organization or operating agreement or any indenture, instrument or agreement by which
Developer is bound, nor will the execution, delivery, or performance of Developer's
obligations pursuant to this Agreement violate or conflict with any law `applicable to
Developer or the Project or the Option Project.
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(h) There is no litigation or proceeding pending or threatened against or
affecting Developer, that would adversely affect the Project or Developer or the Option
Project or the enforceability of this Agreement, the ability of Developer to complete the
Project or the Option Project, as the case may be, to cause the completion of the Project or
the Option Project, as the case may be, or the ability of Developer to perform its obligations
under this Agreement.
(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 a particular Development Area Project, and the
City and the Authority shall be entitled to rely on the Development Area Cost Breakdown in
connection with each Development Area Project.
0) Developer is not in default (beyond any applicable period of grace) of any
of its obligations under any other agreement or instrument entered into in connection with
the Project Land, the Project, the Option Land or the Option Project.
(k) Prior to completion of construction of the Project and if the option to
purchase the Option Land is exercised, Art Dumke and/or Andy Dumke shall at all times
own not less than 51% in the aggregate of the membership interests in Developer. Prior to
completion of construction of the Project and if the option to purchase the Option Land is
exercised, Art Dumke and/or Andy Dumke shall at all times during the term of this
Agreement have sole management and control over the day -to -day operations of Developer
and the Project and the Option Project and there shall be no amendment or modification to
the formation documents of Developer which would in any way modify or change such
management and control of Developer by Art Dumke and /or Andy Dumke.
(1) Prior to completion of construction of the Project and if the option to
purchase the Option Land is exercise, the Option Project, Developer shall not sell, convey,
assign, or otherwise transfer any Development Area in the Project or the Option Project or
the operation and management of each Development Area in the Project and the Option
Project.
(m) Construction of the Project shall commence not later than 10 days
following the Closing for the Project. Developer will continue construction of the Project
diligently and shall complete, or shall cause the completion of, construction of each
Development Area Project in the Project not later than December 31, 2009. Construction of
the Option Project shall commence not later than 10 days following the Closing for the
Option Project. Developer will continue construction of the Option Project diligently and
shall complete, or shall cause the completion of, construction of each Development Area
Project in the Option Project not later than December 31, 2012. Each Development Area
Project will be deemed completed upon the occurrence of all of the following with respect to
each Development Area Project: (i) a certificate of occupancy is issued by the appropriate
governmental authorities for all of the units in the Development Area Project and for the
entire Development Area Project; and (ii) the Project Architect has certified that (A) all of
the units in the Development Area Project have been substantially completed in accordance
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with the Development Area Plans, and (B) the entire Development Area Project has been
substantially completed in accordance with the Development Area Plans.
(n) Developer will conform and comply with all applicable federal, state, local
and other laws, rules, regulations and ordinances, including without limitation, all zoning
and land division laws, rules, regulations and ordinances, all building codes and ordinances
of the City and County, all environmental laws, rules, regulations and ordinances and all
applicable securities laws, rules, regulations and ordinances. Developer covenants that it
will perform and observe the covenants contained in the covenants, restrictions, documents
and instruments governing the Project Land, the Option Land, the TIF District and the
Marion Road/Pearl Avenue Redevelopment Phase II Area, including without limitation, the
Marion Road/Pearl Avenue Redevelopment Plan.
(o) Developer will cause each Development Area Project to be constructed in
a good and workmanlike manner and substantially in accordance with the Development
Area Plans for the Development Area Project and will promptly correct any defects,
structural or otherwise, in construction or deviations from the Development Area Plans for
the Development Area Project. Construction of each Development Area Project shall be
completed free of all liens and encumbrances except for those liens and encumbrances
permitted by this Agreement or those liens and encumbrances being contested in good faith
by Developer. Developer shall not, however, as a result of any contest, permit any
Development Area Project to be the subject of any foreclosure of any such lien or
encumbrance.
(p) Developer shall not, without City's and the Authority's prior written
consent, change the scope of any Development Area Project after its approval by the City
and the Authority or materially change the type or number of units in a Development Area
Project or the uses of the Development Area Project.
(c) Developer will not, without City's and Authority's prior written consent:
(i) approve any changes in any Development Area Project or permit any work to be done
pursuant to any changes or modify any Development Area Plans; (ii) increase or decrease
any line item of the Development Area Cost Breakdown for a Development Area; or (iii)
modify or amend any agreement affecting any Development Area Project in a manner which
would cause the agreement to be inconsistent with this Agreement. Developer shall obtain
the approval of the City and the Authority for change orders which when aggregated with
prior change orders cause the costs of a Development Area Project to increase or decrease
by more than 15% of the amount shown on the Development Area Cost Breakdown for hard
construction costs for such Development Area Project.
(r) Developer will permit City, the Authority, the City's and/or the
Authority's construction consultant or construction reviewer or inspector, at all reasonable
times: (a) to review and inspect the Project and the Option Project and all matters relating to
the development thereof, and (b) to review and if necessary, copy all of Developer's and
General Contractor's books and records pertaining to the development, construction and
operation of any Development Area Project.
QB16560109.3 12
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Neither the City nor the Authority assumes any obligation to Developer for the
sufficiency or adequacy of such reviews, it being acknowledged that such reviews are made
for the sole and separate benefit of City and the Authority. Any and all notes and copies of
records made by or on behalf of the City and/or the Authority related to such reviews shall
be treated as confidential to the full extent permitted by law. The fact that City or the
Authority may make construction reviews shall in no way relieve Developer from its duty to
independently ascertain that the construction of any Development Area Project is being
completed substantially in accordance with the approved Development Area Plans.
(s) Developer shall:
(i) As soon as possible and in any event within five (5) business days
after receiving notice of the occurrence of any default, notify City and Authority in writing
of the action which is being taken or proposed to be taken by Developer with respect thereto.
(ii) Promptly notify City and Authority of the commencement of any
litigation or administrative proceeding that would cause any representation and warranty or
covenant of Developer contained in this Agreement to become untrue in any material
respect.
(iii) Notify City and the Authority, and provide copies, immediately
upon receipt, of any notice, pleading, citation, indictment, complaint, order or decree from
any federal, state or local government agency or regulatory body, asserting or alleging a
circumstance or condition that requires or may require a financial contribution by
Developer or an investigation, clean-up, removal, remedial action or other response by or on
the part of Developer under any environmental laws, rules, regulations or ordinances or
which seeks damages or civil, criminal or punitive penalties from or against Developer for
an alleged violation of any environmental laws, rules, regulations or ordinances.
(t) It is the intention of Developer and the City and the Authority that the sole
business of Developer shall be the ownership and operation of the Project and the Option
Project, the leasing and operation of the Project and the Option Project, the management of
the Project and the Option Project and Developer covenants that it will not take any action
inconsistent with such intention, including without limitation the acquisition of real or
personal property unrelated to the Project or-the Option Project, investment in the assets or
stock of any other person, joining with any other person in any partnership or joint venture
or the creation or incurring of indebtedness unrelated to the Project or the Option Project.
(u) Developer guarantees that as of December 31, 2009, the assessed value of
the new improvements constructed by the Developer on Development Area 1 -B, 2 and 4
(not including the value of the land) will be not less than $12,000,000; and as of December
31, 2013, the assessed value of the new improvements constructed by the Developer on
Development Area 1 -A (not including the value of 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
Developer on Development Areas 1 -A, 1 -B, 2, 4, and 5 (not including the value of the land)
will be not less than $27,000,000.
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(v) Developer shall have in effect at all times, all permits, approvals and
licenses as may be required by any governmental authority or non - governmental entity in
connection with the development, construction, management and operation of the Project
and the Option Project, as the case may be.
(w) Except for each Project Lender's loan(s), Developer will not incur, create,
assume, permit to exist, guarantee, endorse or otherwise become directly or indirectly or
contingently responsible or liable for any indebtedness secured by all or any portion of the
Project or the Option Project.
(x) Developer shall not make any changes to any Development Area Plans
unless the Developer shall have provided to the City and the Authority, evidence that it has
immediately available funds sufficient to pay for such changes.
(y) Developer warrants that each Development Area Cost Breakdown will
accurately reflect all Development Area Project costs that will be incurred by the Developer
in the development, completion, construction, furnishing and equipping of the subject
Development Area Project and the City and the Authority are entitled to rely on each
Development Area Cost Breakdown.
(z) Developer, at its cost and expense, shall construct a marina with
permanent docks and slips adjacent to the riverwalk near Development Area 4. The marina,
docks and slips shall be owned by the City and/or the Authority and leased to Developer on a
long -term lease, the terms and conditions of which must be acceptable to the parties. The tenant
under the lease shall at all times be the owner of Development Area 4 and any transfer of
ownership of Development Area 4 shall automatically effect an assignment of the tenant's
interest in the lease to the owner of Development Area 4. The Developer, at its cost, shall obtain
all permits, approvals and licenses required in connection with the construction, installation and
operation of the marina, docks and slips. The plans and specifications for the marina, docks and
slips are subject to the prior written approval of the City and the Authority, which approval they
may grant or withhold in their sole discretions.
The representations and warranties contained herein shall be true and correct at all
times during the term of this Agreement. Developer shall comply with all covenants contained
herein at all times during the term of this Agreement.
7. Representations and Warranties and Covenants of City and the Authority
The City and the Authority represent and warrant to, and covenant with, the Developer as
follows:
(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 as expeditiously as possible, taking into account applicable laws,
rules, regulations and ordinances.
(b) The City and the Authority will construct the riverwalk and seawall
adjacent to the Project (described in paragraph 24 below) simultaneously with construction
of three of the four projects proposed for Development Area 1 -B, 2, 3 and/or 4. The City and
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the Authority may elect, however, in their sole discretions, to construct the riverwalk and
seawall adjacent to the Project simultaneously with construction of two of the four projects
proposed for those Development Areas.
(c) The City and the Authority will build public transient docks located
adjacent to the riverwalk near Development Area 3. The docks will be constructed at or
about the same time as the riverwalk is constructed.
(d) It is the hope of the parties that a hotel would be built on Development
Area 3, but in any event, Development Area 3 will be held by the City /Authority for future
development. If by October 31, 2010, the City and the Authority are unable to secure a
development proposal for a hotel for Development Area 3, then from November 1, 2010
through October 31, 2011, the Developer shall have the exclusive right to
develop Development Area 3; provided, however, the Developer's development of
Development Area 3 and the use of Development Area 3 shall be subject to the prior written
consent of the City and the Authority. The Developer shall exercise its right to develop
Development Area 3 by notice in writing to the City and the Authority given on or before
October 31, 2011. To be effective, such notice must be accompanied by final plans and
specifications for the project to be developed, the project budget, evidence of financing for
the project, a construction schedule and any other materials reasonably requested by the City
and the Authority in order for the City and the Authority to evaluate the project and
Developer's ability to complete the project in the time periods set forth in the construction
schedule. In addition to the provisions of this Development Agreement, approval of the
development shall be subject to all applicable laws, rules, regulations and ordinances. If the
Developer does not exercise its option to develop Development Area 3 as required herein on
or before October 31, 2011, then the Developer's exclusive right to develop Development
Area 3 shall automatically terminate and the City and/or the Authority shall have the right to
do whatever they choose with Development Area 3, including the right to allow other
developers to develop Development Area 3.
8. Insurance Developer shall maintain the following insurance policies issued by
insurers licensed in the State of Wisconsin, with a ratings and in the financial size category of
insurers of similar projects, with such policies (the "Insurance Policies ") covering loss by perils,
hazards, liabilities and other risks and casualties and in such amounts as may be reasonably
required by the City and the Authority:
(a) Following completion of construction of each Development Area Project,
"all risks" property insurance insuring against such risks as are insured against by owners of
similar projects, in amounts equal to 100% replacement cost of all buildings, improvements,
fixtures, equipment and other real and personal property constituting the subject
Development Area Project with an extended replacement cost endorsement;
(b) During the construction of each Development Area Project, builder's risk
insurance in form and amounts reasonably satisfactory to the City and the Authority;
(c) During the term of this Agreement, commercial general liability insurance
covered under a comprehensive general liability policy including contractual liability in
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amounts maintained by owners of similar projects, and insuring against bodily injury,
including personal injury, death and property damage;
(d) During the term of this Agreement, the contractors performing work in
connection with the Development Area Project shall have worker's compensation insurance
in amounts meeting all statutory state and local requirements; and
Authority.
(e) Such other insurance as may be reasonably requested by City or the
Each Insurance Policy shall require the insurer to provide at least thirty (30) days prior written
notice to the City and the Authority of any material change or cancellation of such policy. The
City and the Authority shall be named as an additional insureds/loss payees on all policies of
insurance except worker's compensation insurance.
9. Damage/Destruction Developer shall not be released from its liabilities and
obligations under this Agreement in the event of fire, damage or any other casualty to any part of
any Development Area Project. In the event of fire, damage or any other casualty to any part of
any Development Area Project prior to completion of the subject Development Area Project,
Developer agrees, at its cost and expense, to complete the Development Area Project and the
Project, and if the option to purchase the Option Land is exercised, the Option Project, timely
and in a manner to create the values set forth in paragraph 6(u) above. Any change in any
Development Area Cost Breakdown resulting from the fire, damage or other casualty must be
approved by the City and the Authority.
10. Default The occurrence of any one or more of the following events shall
constitute a default ( "Default ") hereunder:
(a) Developer shall fail to pay any amounts due from it under this Agreement
on or before ten (10) days following the date when due; or
(b) Any representation or warranty made by Developer in this Agreement, or
any document or financial statement delivered by Developer pursuant to this Agreement,
shall prove to have been false. in any material respect as of the time when made or given; or
(c) Developer shall breach or fail to perform timely or observe timely any of
its covenants or obligations under this Agreement, and such failure shall continue for thirty
(30) days following notice thereof from City or the Authority to Developer (or such longer
period of time as is necessary to cure the default as long as Developer has commenced the
cure of the default within the 30 -day period, is diligently pursuing the cure of the default and
as long as the default is cured not later than 90 days following the notice thereof from the
City or the Authority); or
(d) Construction of any Development Area Project shall be abandoned for
more than thirty (30) consecutive days and Developer does not re- commence construction
within 30 days following notice from the City or the Authority of the default caused by the
abandonment, or if any Development Area Project or the Project or the Option Project, as
the case may be, is not completed on or before the Completion Date for that Development
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Area or Project or Option Project, as the case 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
(e) If there is a default in paragraph 6(u) above; or
(f) Developer or any of its members or any Guarantor shall: (i) become
insolvent or generally not pay, or be unable to pay, or admit in writing its/his/her inability to
pay, its/his/her debts as they mature; or (ii) make a general assignment for the benefit of
creditors or to an agent authorized to liquidate any substantial amount of its/his/her assets; or
(iii) become the subject of an "order for relief' within the meaning of the United States
Bankruptcy Code, or file a petition in bankruptcy, for reorganization or to effect a plan or
other arrangement with creditors; or (iv) have a petition or application filed against
it/him/her in bankruptcy or any similar proceeding, or have such a proceeding commenced
against it/him/her, and such petition, application or proceeding shall remain undismissed for
a period of ninety (90) days. or Developer or any of its members or any Guarantor shall file
an answer to such a petition or application, admitting the material allegations thereof; or (v)
apply to a court for the appointment of a receiver or custodian for any of its/his/her assets or
properties, or have a receiver or custodian appointed for any of its/his/her assets or
properties, with or without consent, and such receiver shall not be discharged within ninety
(90) days after his appointment; or (vi) adopt a plan of complete liquidation of its/his/her
assets; or
(g) If Developer shall cease to exist or if any Guarantor dies; or
(h) A default shall occur under any other loan or indebtedness of Developer
with respect to the Project or the Option Project, as the case may be, including without
limitation, any Project Lender's loan(s), which default is not cured within the time period set
forth in the documents governing such other loan or indebtedness.
11. Remedies Upon the occurrence of any Default, without notice (other than the
notice required under paragraphs 10(a), (c), and (d)), demand or action of any kind by the City or
the Authority, the City or the Authority may, at their respective options, pursue any or all of the
rights and remedies available to the City or the Authority at law and/or in .equity and/or under
this Agreement against Developer, and/or the Project Land, the Project, the Option Land and/or
the Option Project. In addition, the City and /or the Authority shall have the right to suspend
performance of any of its obligations or covenants under this Agreement. Further, the City's
and/or the Authority's obligation to convey any further portion of the Project Land or the Option
Land to Developer or any other person or entity shall automatically terminate and Developer's
option to purchase the Option Land shall automatically terminate.
If any Development Area Project is not commenced or completed within the time periods
set forth in paragraph 6(m) above, then in addition to all other remedies set forth herein, at the
request of the City or the Authority, the Developer shall reconvey the subject Development Area
to the Authority by warranty deed, free and clear of all liens and encumbrances. At the City's or
the Authority's request, any construction on the subject Development Area shall be removed and
QB \6560109.3 17
Osh Riv,Dev Agmt 10/29/08
demolished at the cost of Developer, prior to reconveyance of the Development Area to the City
or the Authority.
If the provisions of paragraph 6(u) above have not been met in the time periods set forth
in paragraph 6(u), then in addition to all other remedies, the City and the Authority, at their
options and in their sole discretions, shall have the right to terminate Developer's rights to
purchase any further portions of the Project Land and/or the Option Land and the Developer's
option to purchase the Option Land. Thereafter, the City and the Authority shall have the right
to convey all other portions of the Project Land and or the Option Land to any other person or
entity.
Except as may be otherwise specifically set forth herein, no remedy herein conferred
upon the City or the Authority is intended to be exclusive of any other remedy and each and
every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement, and /or now or hereafter existing at law or in equity. No failure or delay
on the part of the City or the Authority in exercising any right or remedy shall operate as a
waiver thereof nor shall any single or partial exercise of any right preclude other or further
exercise thereof or the exercise of any other right or remedy. Notwithstanding any of the
foregoing authorizations, neither the City nor the Authority shall have any duty or obligation
whatsoever with respect to any of the matters so authorized.
12. Costs The Developer shall pay all costs and expenses associated with the
enforcement of the City's and/or the Authority's rights against Developer, including without
limitation the enforcement of such rights in any bankruptcy, reorganization or insolvency
proceeding involving Developer or any of its members or any Guarantor. Any and all such fees,
costs and expenses incurred by the City or the Authority which are to be paid by the Developer
shall be paid by Developer to the City or the Authority, as the case may be, on demand. In the
event of a default or breach by Developer under this Agreement, Developer shall pay all costs
and expenses incurred by the City and the Authority in connection with the Developer's
involvement in the Project and the Option Project, and the preparation and negotiation of the
option, this Development Agreement, and any other document or agreement, including without
limitation, attorneys fees and the fees of the City's and the Authority's financial consultant(s).
13. City's /Authority's Right to Cure Default In case of failure by Developer to
procure or maintain insurance, or to pay any fees, assessments, charges or taxes arising with
respect to the Project or the Option Project, as the case may be, or to comply with the terms and
conditions of this Agreement or any other document, contract or agreement affecting the Project
or the Option Project, as the case may be, including without limitation, the terms and conditions
of any documents governing any Project Lender's loan(s), which failure is not cured within any
applicable cure period, the City or 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, contracts or
agreements affecting the Project or the Option Project, as the case may be, and, in that event, the
cost thereof shall be payable by Developer to the City or the Authority, as the case may be.
14. Cost Overruns Any cost overruns incurred in connection with the Project or the
Option Project shall be paid for by Developer.
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15. Parking Developer understands and agrees that it shall be Developer's
obligation to provide adequate parking for each Development Area Project complying with all
applicable laws, rules, regulations and ordinances, at Developer's cost and expense.
16. Signage All signage installed at the Project and the Option Project, both during
construction and after completion of the Project and the Option Project, must comply with all
applicable laws, rules, regulations and ordinances and must be approved by the City and the
Authority as part of the City's and/or the Authority's approval of each Development Area's
Development Area Plans. All signage shall be maintained, repaired and replaced as necessary by
Developer at its expense.
17. Real Estate Taxes and Assessments Developer agrees to pay, or cause to be
paid, timely to the City generally applicable property taxes assessed and levied by the City in
connection with each Development Area Project under its applicable property tax laws, rules,
rates, regulations and ordinances in effect from time to time. Nothing in this Agreement shall
impair any statutory rights of the City with respect to the assessment, levy, priority, collection
and /or enforcement of real estate and personal property taxes. In addition, Developer agrees to
pay, or cause to be paid, timely to the City all special assessments as may be assessed or levied
in connection with each Development Area Project under the applicable special assessment laws,
rules, regulations, ordinances and rates in effect at the time said special assessments are assessed
or levied. Developer agrees that it will not sell, lease, assign or otherwise transfer or convey any
interest in the Project or the Project Land and, if the option to purchase the Option Land is
exercised, the Option Project or the Option Land, to a person or entity exempt from general
property taxation or in a manner which would cause all or any portion of the Project or the
Project Land or the Option Project or the Option Land to be exempt from general property
taxation (the "Tax- Exempt Covenant "). This Tax - Exempt Covenant will run with the Project
Land and the Project and if the option to purchase the Option Land is exercised, the Option Land
and the Option Project, and will bind all owners in title to the Project Land and the Project and if
the option to purchase the Option Land is exercised, the Option Land and the Option Project,
during the term of the Tax - Exempt Covenant. In the event any part of the Project Land and/or
the Project and if the option to purchase the Option Land is exercised, the Option Land and the
Option Project, is exempt from general property taxation, the owner of such exempt portion of
the Project Land and Project or the Option Land and Option Project, as the case may be, shall
agree to make a payment to the City in lieu of taxes pursuant to the terms and conditions of an
agreement acceptable in form and content to the City. In the 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 Project,
the Project Land, the Option Land or the Option Project, as the case may be, exempt from
taxation shall make a payment in lieu of taxes to the City pursuant to the terms and conditions of
an agreement acceptable in form and content to the City.
18. Indemnifications Developer hereby indemnifies, defends, covenants not to sue
and holds the City and the Authority harmless from and against all loss, liability, damage and
expense, including attorneys' fees, suffered or incurred by the City or the Authority in any way
in connection with the Project or the Project Land or the Option Land or the Option Project,
including without limitation: (a) the failure of Developer or its contractors, subcontractors,
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agents, employees, or invitees to comply with any environmental law, rule, regulation or
ordinance, or any order of any regulatory or administrative authority with respect thereto; (b) any
release by Developer or its contractors, subcontractors, agents, employees, or invitees of
petroleum products or hazardous materials or hazardous substances on, upon or into the Project;
(c) any and all damage to natural resources or real property or harm or injury to persons resulting
or alleged to have resulted from any failure by the Developer and or its contractors,
subcontractors and/or agents to comply with any law, rule, regulation or ordinance or any release
of petroleum products or hazardous materials or hazardous substances as described in clauses (a)
and (b) above; (d) any violation by Developer at the Project or the Project Land or the Option
Project or Option Land of any environmental law, rule, regulation or ordinance; (e) the failure of
Developer to comply with the environmental remediation plan in effect with respect to the
Project Land or the Option Land as described in paragraph 26 below; (f) claims arising under the
Americans With Disabilities Act, and any other laws, rules, regulations or ordinances; (g) the
failure by Developer to comply with any term or condition of this Agreement; (h) injury to or
death of any person at the Project, the Project Land, the Option Project and/or the Option Land
and/or injury to any property resulting from the Project, the Project Land, the Option Land
and/or the Option Project; and (i) the failure of Developer to maintain, repair or replace, as
needed, any portion of the Project, the Project Land, the Option Project and/or the Option Land.
The terms "hazardous substances" means any flammable explosives, radioactive
materials, hazardous wastes, toxic substances, or related materials, including without limitation,
any substances defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "toxic substances" under any applicable federal or state or local
laws or regulations.
This paragraph 18 shall not be construed as limiting the Developer's right to sue the City
and/or the Authority in the event of a default or breach by the City or the Authority under this
Agreement.
19. Fire and Safety Hazards 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.
20. Nondiscrimination The City, the Authority, and the Developer a agree that the
Project and Option Project shall not be sold to, leased or used by any party in a manner to permit
discrimination or restriction on the basis of race, creed, ethnic origin or identity, color, gender,
religion, marital status, age, handicap or national origin, and that the construction and operation
of the Project and Option Project shall be in compliance with all laws, rules, regulations and
ordinances relating to discrimination or any of the foregoing.
21. No Personal Liability Under no circumstances shall the City or the Authority or
any council person, officer, official, director, attorney, employee, member or agent of the City
or the Authority have any personal liability arising out of this Agreement, and no parry shall seek
or claim any such personal liability.
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22. City /Authority Authorization The execution of this Agreement by the City was
authorized by Resolution 08 -411 of the City's Common Council dated October 28, 2008 and by
Resolution 08 -14 of the Authority dated October 9, 2008.
23. Staff Approval All documents and agreements that require approval by the City
or the Authority in connection with this Agreement or the Project, the Project Land, the Option
Project or the Option Land shall be approved by the proper City officials designated by the City
or Authority, as the case may be.
24. Public Improvements The City shall make certain Public Improvements
adjacent to or on the Project Land. Those Public Improvements are:
(a) An approximately 1.132 -acre, 30 -foot wide riverwalk between the Project
Land and the Fox River to be designed, constructed and installed in accordance with plans and
guidelines established by the City; and
(b) Improvements to the seawall bordering the riverwalk adjacent to the
Project Land, to be designed, constructed and installed in accordance with plans and guidelines
established by the City; and
(c) Public transient docks located adjacent to the riverwalk near Development
Area 3.
It is the City's intention that the riverwalk trail section identified in this subparagraph 24(a) will
be connected to Wisconsin Street and the WIOUWASH Recreation Trail in accordance with the
adopted Fox River Corridor Riverwalk Plan and Design Guidelines. The City will coordinate the
making of the Public Improvements with the development of the Project as described in
paragraph 7(b) and paragraph 7(c) above.
25. Water Rights/Riparian Rights Nothing in this Agreement does or is intended
to give the Developer or any other owner or lessee of any part of the Project or Project Land or
Option Land or Option Project or Public Improvements or any other person or entity, any water
rights or riparian rights with respect to the Fox River, or any other body of water near or
surrounding the Project Land, the Option Land and/or the Public Improvements. Neither the
Developer nor any other owner or lessee of any part of 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 Option Land and /or the Public Improvements without the City's and the Authority's prior
written consent, which consent the City and/or the Authority can withhold in their respective sole
discretions.
26. Environmental Remediation The City and the Authority acknowledge that the
Project Land and Option Land and Public Improvements may contain certain contaminants that
must be remediated prior to or during any development on the Project Land and the Option Land.
The City and the Authority will prepare an environmental remediation plan in connection with
the Project Land, the Option Land and the Public Improvements and each Development Area.
The general approach the City will take in a Development Area Remediation Plan is set forth in
Exhibit C attached hereto. The parties understand, however, that the City shall prepare an
QB \6560109.3 21
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environmental remediation plan specific to each Development Area (the plan for each
Development Area being referred to herein as a "Development Area Remediation Plan ") once the
Development Area Plans for that Development Area have been completed. The City will consult
with the Developer in the preparation of each Development Area Remediation Plan. The City
may, but is not required to, perform some remediation pursuant to the general remediation plan
or any Development Area Remediation Plan prior to the transfer of any Project Land or Option
Land to the Developer. The City may elect instead to have the Developer perform the
environmental remediation for a Development Area pursuant to the Development Area
Remediation Plan for that Development Area. With respect to the environmental remediation of
the Project Land and the Option Land, the following terms shall apply:
(a) The City will pay the cost of the environmental
remediation performed in accordance with the Development Area Remediation Plan.
(b) If Developer requests a level of remediation greater than the
remediation set forth in the City's Development Area Remediation Plan, the Developer will pay
for the added cost for carrying out the increased level of remediation. Any amount the
Developer has agreed to pay for environmental remediation shall be included in the
Development Area's Development Area Cost Breakdown.
(c) The City will cooperate with the Developer in obtaining grants
from various governmental entities to help offset Developer's costs associated with the
remediation.
27 Brokers' Fees /Commissions In the event the Developer incurs any broker fee
or commission in connection with any transactions contemplated by this Agreement, the
Developer shall pay or cause to be paid any such fee or commission and neither the City nor the
Authority shall be liable for any such fee or commission. Developer hereby indemnifies and
holds harmless the City and the Authority with respect to the payment of any such fee or
commission claimed to be due as a result of any actions of Developer.
28. Option. The City and the Authority hereby grant an option to Developer to
purchase Development Area 5. The purchase price for Development Area 5 shall be $1.00. The
option shall automatically expire, without need of any further document or instrument, on
December 31, 2012. Developer shall exercise the option by written notice to the City and the
Authority, given not later than December 31, 2012. If the Developer fails to timely give notice
of the exercise of its option, then the option shall automatically terminate, without need of any
further document or instrument. If Developer exercises its option to purchase the Option Land,
then all conditions precedent to the Closing on the Option Land as set forth in this Agreement,
must be satisfied prior to the Closing of the sale of the Option Land to Developer and as a
condition of the City's and Authority's obligation to sell the Option Land to the Developer. The
Closing of the sale of the Option Land to Developer must occur on or before February 28, 2013.
It is understood and agreed that Developer's option to purchase the Option Land is conditioned
upon their being no Default under this Agreement as of the date of exercise of the option and as
of the date of the Closing of the sale of the Option Land to Developer. The option to purchase
the Option Land shall not be sold, transfer, assigned or conveyed by Developer to any other
QB \6560109.3 22
Osh Riv,Dev Agmt 10/29/08
person or entity without the prior written consent of the City and the Authority, which consent
the City and the Authority may grant or withhold in their sole discretions.
29. Miscellaneous
(a) Except as otherwise specifically set forth herein, the respective rights and
liabilities of City, the Authority, and the Developer under this Agreement are not assignable
or delegable, in whole or in part, without the prior written consent of the other parties. The
provisions of this Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the parties.
(b) No waiver, amendment, or variation in the terms of this Agreement shall
be valid unless in writing and signed by the City, the Authority and Developer, and then
only to the extent specifically set forth in writing.
(c) All agreements, representations, warranties, covenants, liabilities and
obligations made in this Agreement and in any document delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the Closing.
(d) All communications or notices required or permitted by this Agreement
shall be in writing and shall be deemed to have been given (i) upon delivery to an officer of
the person entitled to such notice, if hand delivered, or (ii) two business days following
deposit in the United States mail, postage prepaid, or with a nationally recognized overnight
commercial carrier that will certify as to the date and time of delivery, airbill prepaid, or (iii)
upon transmission if by facsimile, and each such communication or notice shall be
addressed as follows, unless and until any of such parties notifies the other in accordance
with this Paragraph of a change of address:
If to the City or the
Authority: City of Oshkosh, Wisconsin
215 Church Avenue, P.O. Box 1130
Oshkosh, WI 54903 -1130
Attention: Director of Community
Development
Facsimile No.: (920) 236 -5053
If to the Developer: Oshkosh River Development, LLC
222 Ohio Street
Oshkosh, WI 54902
Attention: Andy Dumke
Facsimile No.: 920 - 230 -6484
(e) This Agreement and the documents executed pursuant to this Agreement
contain the entire understanding of the parties with respect to the subject matter hereof.
There are no restrictions, promises, warranties, covenants or undertakings other than those
expressly set forth in this Agreement and the documents executed in connection with this
QB \6560109.3 23
Osh Riv,Dev Agmt 10/29/08
Agreement. This Agreement and the documents executed in connection herewith supersede
all prior negotiations, agreements and undertakings between the parties with respect to the
subject matter hereof, including without limitation, the terms of the term sheet executed in
connection with the Project Land and the Option Land.
(f) This Agreement is intended solely for the benefit of Developer and the
City and the Authority, and no third parry (other than successors and permitted assigns) shall
have any rights or interest in any provision of this Agreement, or as a result of any action or
inaction of the City or the Authority in connection therewith. Without limiting the
foregoing, no approvals given pursuant to this Agreement by Developer or the City or the
Authority, or any person acting on behalf of any of them, shall be available for use by any
contractor or other person in any dispute relating to construction of the Project or the Option
Project.
(g) This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Wisconsin applicable to contracts made and wholly
performed within such state.
(h) This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but such counterparts shall together constitute but one and the
same agreement. Facsimile signatures shall be deemed original signatures for all purposes
of this Agreement.
(i) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions of this Agreement in such
jurisdiction or affecting the validity or enforceability of any provision in any other
jurisdiction.
0) Nothing contained in this Agreement or any other documents executed
pursuant to this Agreement, shall be deemed or construed as creating a partnership or joint
venture between the City and the Authority on the one hand and Developer on the other
hand or between the City or the Authority on the one hand and any other person, or cause
the City or the Authority to be responsible in any way for the debts or obligations of
Developer or any other person. Developer further represents, warrants and agrees, for itself
and its successors and permitted assigns, not to make any assertion inconsistent with its
acknowledgment and agreement contained in the preceding sentence in the event of any
action, suit or proceeding, at law or in equity, with respect to the transactions which are the
subject of this Agreement and this paragraph may be pleaded and construed as a complete
bar and estoppel against any assertion by or for Developer, and its successors and permitted
assigns, that is inconsistent with its acknowledgment and agreement contained in the
preceding sentence.
(k) TIME IS OF THE ESSENCE of each and every obligation or agreement
contained in this Agreement.
QB16560109.3 24
Osh Riv,Dev Agmt 10/29/08
(1) If any party is delayed or prevented from timely completing construction
of any Development Area Project, by reason of fire, earthquake, war, flood, riot, strikes,
labor disputes, governmental restrictions, judicial order, public emergency, or other causes
beyond the control of the party obligated to perform, performance of such act shall be
excused for the period of such delay and the time for the performance of any such act shall
be extended for a period equivalent to such delay.
(m) This Development Agreement shall terminate on the expiration of the
maximum statutory life of the TIF District.
(n) A memorandum of this Agreement shall be recorded in the office of the
Register of Deeds of Winnebago County, Wisconsin, prior to the recording of the Project
Lender's mortgage(s), or any other mortgage on Project, it being understood by the parties
that until termination of this Agreement as set forth in subparagraph 29(m) above, this
Agreement will run with the land and will be binding upon the Project Land and the Project
and the Option Land and the Option Project and any owner and/or lessee and/or mortgagee
of all or any portions of the Project Land and the Project and the Option Land and the
Option Project and their successors and assigns.
(o) The headings in this Agreement are for reference only and are not
intended to modify any of the terms and conditions of this Agreement.
(p) Nothing contained in this Agreement is intended to or has the effect of
releasing Developer from compliance with all applicable laws, rules, regulations and
ordinances in addition to compliance with all terms, conditions and covenants contained in
this Agreement.
(q) This Agreement is the product of negotiation among all of the parties
hereto and no term, covenant or provision herein or the failure to include a term, covenant or
provision shall be construed against any party hereto solely on the basis that one party or the
other drafted this Agreement or any term, covenant or condition contained herein.
(q) This Amended and Restated Development Agreement amends, restates
and supercedes the Prior Development Agreement in its entirety.
QB16560109.3 25
Osh Riv,Dev Agmt 10/29/08
In Witness Whereof, this Agreement is executed as of the date first above written.
City of Oshkosh, Wisconsin
Attest:
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Ubrig, City Clerk
Personally appeared before me this3L day of e , 2008, the above -named Mark A.
Rohloff and Pamela R. Ubrig, the City Manager and City Clerk, respectively, of the City of
Oshkosh, Wisconsin, to me known to be the persons who executed the foregoing agreement on
behalf of the City and by its authority.
Name:
Notary Public, State of Wisconsin
My Commission expires: d f
QB16560109.3 26
Osh Riv,Dev Agmt 10/29/08
pp ROVE
1TY A �
$NKOSH, WISCO�SIP1
STATE OF AC " ONSIN )
)ss.
WINNEBAGO COUNTY )
Redevelopment Authority of the City
Oshkosh, Wisconsin
By:
Thomas Belter, Chairman
Atte
Director
of
Personally appeared before me this l day of 2008, the above -named Thomas
Belter and Jackson Kinney, the Chairman and Executive Director, respectively, of the
Redevelopment Authority of the City of Oshkosh, Wisconsin, to me known to be the persons
who executed the foregoing agreement on behalf of the Authority and by its authority.
Name:
Notary Public, State of Wisconsi
My Commission expires: 4
QB \6560109.3 27
Osh Riv,Dev Agmt 10/29108
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Oshkosh River ,00opment C, Wisconsin
limited liabil' o any
By:
Name: + h ,
Title: n k, k 134? V
STATE OF WISCONSIN )
)ss.
W" ) A rL COUNTY )
�
ersonally appeared before me this ZL day of L i , 2008, the above -named
E qem�' ,C' of Oshkosh River Develoment, LLC, a Wisconsin
limited liability company, to me known to be the person who executed the foregoing agreement
on behalf of said limited liability company and by its authority.
Name:
Notary Public, State of Wiscon m
My Commission expires: i r'
This instrument was drafted by
and upon recording return to:
Ann K. Comer, Esq.
Quarles & Brady LLP
411 E. Wisconsin Avenue
Milwaukee, WI 53202
QB16560109.3 28
Osh Riv,Dev Agmt 10/29/08
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Exhibit C
General Remediation Plan
Marion Road/Pearl Avenue Redevelopment Phase II Brownfield Properties
Redevelopment of the Marion Road/Pearl Avenue Brownfield properties will continue to
occur in a manner that reduces the overall economic impact of environmental
remediation. Environmental conditions at these properties are characterized by elevated
levels of volatile organic compounds, petroleum volatile organic compounds, RCRA
metals, and polynuclear aromatic hydrocarbons. Fill soils ranging in thickness from 5 to
18 feet are present throughout the anticipated redevelopment area. This fill material
typically consists of foundry sand, wood chips, concrete, gravel, sand, and buried organic
material. Due to the presence of this fill material, the Department of Natural Resources
will require an application to construct on a historic fill site.
In addition to the fill materials, other specific environmental conditions identified on the
riverfront properties including the following:
1 Chlorinated compounds impacting soil and groundwater quality were present in a
limited area in the southeast corner of the former Mercury Marine property. Soil
and groundwater with elevated concentrations of chlorinated compounds may be
considered hazardous waste.
2. Petroleum impacted soil near former underground and above ground storage tank
locations and former pump island locations.
3. Concentrations of petroleum hydrocarbons in groundwater samples collected
from on -site monitoring wells.
4. Shallow groundwater elevations controlled, in part, by seasonal fluctuations of
the Fox River and the permeability of fill soils.
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
QB \6560109.3 -31-
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.
3. Utilize paved parking areas and hardscape to act as direct contact prevention caps,
eliminating the need for extensive excavation and disposal of underlying fill
material.
4. Although some areas of the brownfield properties north of Marion Road may be
suitable for conventional building foundations, consider constructing buildings
and other structures utilizing a pile foundation to reduce the amount of excavation
required and limit the potential for construction dewatering and groundwater
treatment.
5. Maintain a basement or lower level floor elevation above the normal groundwater
elevation to limit significant excavation of fill material, reduce the need for
construction dewatering and permanent dewatering to control groundwater
elevations.
This general remediation plan is established to provide an initial frame work for
designing site improvements along the Marion Road/Pearl Avenue Brownfield
redevelopment area. Details of environmental remediation plan for each Development
Area will be developed, concurrent and in cooperation with detailed redevelopment plans
with the goal of obtaining a Certificate of Completion under the Voluntary Parry Liability
Exemption program. Integrating environmental remediation with property
redevelopment will control costs and maintain the project momentum for all stakeholders.
QB16560109.3 _32_
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