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Amended and Restated Development Agreement
This Amended and Restated Development Agreement is made this day of
2009, 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 Oshkosh River Development, LLC entered into an Amended and Restated
Development Agreement dated October 31, 2008, with respect to the acquisition, option,
lease and development by Oshkosh River Development, LLC, of certain land as defined
therein (the "Prior Development Agreement ").
(ii) Oshkosh River Development, LLC has asked that the City and the
Authority modify certain terms and provisions of the Prior Development Agreement.
(iii) The City and the Authority have agreed to modify the Prior Development
Agreement and 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.
Now, Therefore, in consideration 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). 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 the terms on which Oshkosh
River Development, LLC will develop that portion of the Project Land conveyed to it.
The parties agree that the development of the Project Land must best achieve the goals
and objectives for the Project Land 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.
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
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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: For each Parcel, the later to occur of (i) the
closing of Project Lender's loan(s) for the Parcel Project, and (ii) the satisfaction of all
conditions precedent to the commencement of disbursement of the Project Lender's
loan(s) for the Parcel Project.
(e) "Closing Date" means: For each Parcel, the date on which the
Project Lender's loan(s) for the Parcel Project is closed and all conditions to the
commencement of disbursement of the Project Lender's loan(s) for the Parcel Project
have been satisfied.
(f) "Completion Date" means: For each Parcel Project, 18 months
following commencement of construction of the respective Parcel Project.
(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, 2,
3 and 4, as shown on Exhibit A.
(i) "General Contractor" means: For each Parcel, the general
contractor hired by the Developer or the Developer itself, if the Developer is acting as
general contractor for a Parcel Project, to construct the Parcel Project under a guaranteed
maximum price contract.
0) "Marion Road/Pearl Avenue Redevelopment Phase II Area"
means: The land shown on Exhibit B attached hereto.
(k) "Marion Road/Pearl Avenue Redevelopment Plan" means the
City's redevelopment plan governing the Marion Road/Pearl Avenue Redevelopment
Phase II Area.
(1) "Parcel" means: Any portion of the Project Land determined by
mutual agreement of the Developer and the City to be a separate and distinct parcel of
real estate on which a Parcel Project will be constructed and developed by Developer. A
Development Area may contain one or more Parcels.
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W "Parcel Land" means: The land comprising a Parcel.
(n) "Parcel Plans" means: For each Parcel, final detailed plans and
specifications for the Parcel Project to be constructed thereon, which shall include,
without limitation, the following: all improvements now located or to be located on the
subject Parcel, 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 Parcel Plans for a Parcel Project must be in sufficient
detail to permit Developer and the General Contractor to enter into a guaranteed
maximum price construction contract for the Parcel Project.
(o) "Parcel Project" means: The project to be constructed and
developed on a Parcel by Developer pursuant to Parcel Plans approved by the City and
the Authority. It is intended that the Parcels in Development Area 1 will be used for
offices and commercial space as a primary use. It is intended that the Parcels in
Development Area 2 will be used for a hotel and/or commercial and/or residential uses.
It is intended that the Parcels in Development Area 3 will be used for residential purposes
as a primary use. It is intended that the Parcels in Development Area 4 will be used for
commercial and residential purposes as a primary use. Each of the projects to be
developed on a Parcel by the Developer will be determined by mutual agreement of the
parties and must be acceptable to the City and the Authority, in their sole discretions.
(p) "Parcel Project Cost Breakdown" means: For each Parcel, a
current completion and draw schedule and cost breakdown of construction and non-
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 Parcel Project in
accordance with the Parcel Plans for the Parcel Project.
(q) "Project" means: The improvements to be constructed and
developed by Developer on the Project Land.
(r) "Project Architect" means: For each Project, the architect hired by
Developer to design the Parcel Project and to perform all other architectural services in
connection with the Parcel Project.
(s) "Project Land" means: The land shown on Exhibit A attached
hereto.
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(t) "Project Lender" means: For each Parcel, one or more mortgage
lenders making the initial construction/permanent loan(s) for the Parcel Project, in an
aggregate amount not to exceed the value of the Parcel 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" means: Oshkosh Tax Increment District No. 21.
(x) "Title Company" means: For each Parcel, the title company
issuing the loan policy of title insurance to the Project Lender for the respective Parcel
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 other than
Development Area 2 to the Developer; and (d) pursuant to the terms of paragraph 28
below, the City or the Authority will convey the land within Development Area 2 to the
Developer and the Developer, at its cost and expense, will construct, install, furnish and
equip Parcel Projects on the land within Development Area 2.
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 any Parcel to
Developer, are conditioned upon the satisfaction of each and every of the following
conditions:
(a) On or before 30 days prior to the Closing Date for each
Parcel, Developer, at its cost, will provide the Parcel Project Cost Breakdown
for such Parcel, to the City and the Authority. The Parcel Project Cost
Breakdowns shall be certified by Developer, the Project Architect and the
General Contractor as accurate and complete. The Parcel Project Cost
Breakdowns shall show that all hard costs of construction, installation,
furnishing and equipping of each Parcel Project are not less than the amount
determined to be necessary by the City for the Project to meet the values set
forth in paragraph 6(u) below. The Parcel Project Cost Breakdowns must
otherwise show a state of facts acceptable to the City and the Authority.
(b) On or before June 30, 2009, Developer shall provide the
City and the Authority with a timetable for construction and completion of the
Project. On or before 45 days prior to the Closing Date for each Parcel,
Developer shall provide the City and the Authority with a timetable for
construction and completion of the Parcel Project to be located on such Parcel.
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(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 of the first Parcel to be
conveyed to Developer, 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 45 days prior to the Closing Date for each
Parcel, 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 Parcel Project. On
the Closing Date for each Parcel, 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.
(e) The Developer must submit the Parcel Plans for each
Parcel 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 45 days prior to the Closing Date for each Parcel, Developer, at its cost,
shall provide the City and the Authority with the Parcel Plans for the Parcel
Project, which Parcel Plans must comply with the terms of this Agreement.
Prior to Closing for each Parcel, the Developer shall have obtained the
Authority's approval of the Parcel Plans for the Parcel Project to be located on
the Parcel and the City's Plan Commission's review and Common Council
approval of the Parcel Plans for the Parcel Project, for compliance with all
applicable zoning and land use laws, rules, regulations and ordinances.
Further, prior to Closing for each Parcel, the Developer shall have obtained any
conditional use permit as may be required for the Parcel Project to be located
on the Parcel.
The Developer must also submit State - approved Parcel Plans for
each Parcel, for a separate review and approval by the City for the purpose of
obtaining all other permits, approvals and licenses as are required in
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connection with construction of a Parcel Project, including without limitation,
all building permits. On or before 45 days prior to a Closing Date for each
Parcel, Developer, at its cost, shall provide the City and the Authority with the
State - approved Parcel Plans for the Parcel Project to be located on the Parcel,
which State - approved Parcel Plans must comply with the terms of this
Agreement. Prior to Closing for each of the Parcels, 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
Parcel Project to be located on the Parcel.
The Developer understands and agrees that the City and the
Authority are not required to issue any approvals, permits or authorizations
unless the Parcel and Parcel 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 Parcel
must best achieve the goals and objectives for the Project Land and
Development Area 2 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 April 30, 2009, 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 Parcel, any conditions imposed in connection with the City's or the
Authority's approval of any of the foregoing shall have been satisfied.
(g) On or before 45 days prior to Closing Date for each Parcel,
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 Parcel Project to be located on the Parcel, in
accordance with the Parcel Plans for the Parcel. 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 Parcel, equal to the difference between (i) the total aggregate cost of the
Parcel Project as shown in the greater of (A) the Parcel Project Cost
Breakdowns for the Parcel Project, or (B) the combination of the guaranteed
maximum price construction contract for the Parcel Project, plus the other
costs which will be incurred for the construction, installation and equipping of
the Parcel Project, minus (ii) the proceeds of the Project Lender's loan(s) for
the Parcel Project, which funds must be available for disbursement and be
disbursed for the Parcel Project prior to the disbursement of the Project
Lender's loan(s) for the Parcel Project; and/or
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(ii) Individual payment guaranties from the principals
of Developer; and/or
(iii) Additional collateral to secure the obligations of the
Developer; and/or
(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 Parcel Project.
(h) The Closing for the first Parcel to be conveyed by the
Authority to the Developer must occur on or before September 30, 2009.
(i) Prior to a Closing Date for each Parcel, Developer, at its
cost, shall provide the City and the Authority with evidence satisfactory to the
City and the Authority that the Parcel Project to be located on the Parcel,
conforms and complies with all applicable laws, rules, regulations and
ordinances as well as any covenants, restrictions, documents or instruments
governing the Parcel, the Project Land, the Parcel 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.
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 or Project Land, to which Developer is a party or an
obligor.
(k) In addition to the requirement set forth in subparagraph (c)
above, on or before the Closing Date for the first Parcel to be conveyed to
Developer, 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 first parcel to be
conveyed to Developer, 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
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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 Parcel,
Developer shall have entered into a guaranteed maximum price construction
contract with the General Contractor for the Parcel Project to be located on the
Parcel, an architect's agreement with the Project Architect and all other
contracts and agreements necessary in connection with completion and
construction of the Parcel Project, which contracts and agreements must be
acceptable in all respects to the City and the Authority. The guaranteed
maximum price construction contract for each Parcel Project must show that
the costs of construction of the Parcel Project do not exceed the amount shown
on the Parcel Project Cost Breakdowns for the Parcel.
(o) On or before 30 days prior to the Closing Date for each
Parcel, Developer shall divide the Parcel from the balance of the Project Land
in accordance with applicable laws and ordinances, so that each Parcel 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
the Authority. The Developer and the City shall each pay one -half of the cost
of complying with this subparagraph (o). It is agreed by the parties hereto that
the boundaries of each Development Area as shown on Exhibit A show the
general location of each Development Area but the final Parcel and
Development Area boundaries will be determined by mutual agreement of the
parties to this Development Agreement as development of the Project Land
progresses. The boundaries of each Parcel and each Development Area must
be acceptable to the City and the Authority, in their sole discretions.
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 first Parcel of the
Project Land to Developer, 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.
The continuing obligations of the City and the Authority under this Development
Agreement and the obligation of the City and/or the Authority to convey any other Parcel
(other than the first Parcel) of the Project Land to Developer, are conditioned upon the
satisfaction of all of the conditions set forth above within the times periods set forth
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above. If each of the conditions set forth above for each Parcel 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 any further rights of Developer under this Agreement, in which event,
neither the City nor the Authority 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 June 30, 2009, to complete its due diligence with respect to the Project 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 project(s) to be located thereon, obtaining
of any licenses, approvals and permits with respect to the Project and /or the Parcel
Project(s) to be located on the Parcels, performance of a general inspection and
investigation of the Project Land and completion of a feasibility analysis with respect to
Developer's intended use of the Project Land.
On or before ten (10) business days following June 30, 2009, the Developer shall
notify the City and the Authority in writing if the Developer has or has not satisfied the
condition(s) contained in this paragraph 5. If Developer has timely notified the City and
the Authority that it has satisfied the conditions or waives the conditions, then this
Agreement shall continue in full force and effect. If the Developer has timely notified the
City and the Authority that the Developer has not satisfied the conditions but the
Developer is willing to waive the conditions, then this Agreement will continue in full
force and effect and the conditions set forth in this paragraph 5 shall be deemed waived.
If the Developer has timely notified the City and the Authority that the Developer has not
satisfied the conditions and if the Developer is not willing to waive the conditions, then
any of the Developer or the City or the Authority may thereafter terminate this
Agreement by notice in writing to the other parties, given on or before July 31, 2009. If
on or before 10 business days following June 30, 2009, the City and the Authority have
not received any notice from Developer with respect to the satisfaction or waiver of the
conditions set forth in this paragraph 5, then either the City or the Authority may at any
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time thereafter terminate this Agreement by notice in writing to the Developer. Upon
termination of this Agreement pursuant to this paragraph 5, 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.
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.
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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
enforceability of this Agreement, the ability of Developer to complete the Project, to
cause the completion of the Project, or the ability of Developer to perform its
obligations under this Agreement.
(i) The Parcel Project Cost Breakdowns will accurately reflect all
Parcel Project costs that will be incurred in the development, completion,
construction, furnishing and equipping of a particular Parcel Project, and the City
and the Authority shall be entitled to rely on the Parcel Project Cost Breakdown in
connection with each Parcel 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 or the Project.
(k) Prior to completion of construction of the Project, 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, 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 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, Developer shall
not sell, convey, assign, or otherwise transfer any Parcel or the operation and
management of each Parcel Parcel in the Project.
(m) Construction of each Parcel Project shall commence not later than
10 days following the Closing for the Parcel on which the Parcel Project will be
located. Developer will continue construction of each Parcel Project diligently and
shall complete, or shall cause the completion of, construction of each Parcel Project
not later than 18 months following the date of commencement of construction of
such Parcel Project. Each Parcel Project will be deemed completed upon the
occurrence of all of the following with respect to each Parcel Project: (i) a certificate
of occupancy is issued by the appropriate governmental authorities for all of the units
in the Parcel Project and for the entire Parcel Project; and (ii) the Project Architect
has certified that (A) all of the units in the Parcel Project have been substantially
completed in accordance with the Parcel Plans, and (B) the entire Parcel Project has
been substantially completed in accordance with the Parcel Plans. Developer shall
complete construction of the entire Project not later than December 31, 2013.
(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,
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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 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 Parcel Project to be constructed in a
good and workmanlike manner and substantially in accordance with the Parcel Plans
for the Parcel Project and will promptly correct any defects, structural or otherwise,
in construction or deviations from the Parcel Plans for the Parcel Project.
Construction of each Parcel 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 Parcel 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 Parcel Project after its approval by the City
and the Authority or materially change the type or number of units in a Parcel Project
or the uses of the Parcel Project.
(q) Developer will not, without City's and Authority's prior written
consent: (i) approve any changes in any Parcel Project or permit any work to be done
pursuant to any changes or modify any Parcel Plans; (ii) increase or decrease any
line item of the Parcel Project Cost Breakdown for a Parcel; or (iii) modify or amend
any agreement affecting any Parcel 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 Parcel Project to increase or decrease by
more than 15% of the amount shown on the Parcel Project Cost Breakdown for hard
construction costs for such Parcel 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 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 Parcel Project.
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
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construction of any Parcel Project is being completed substantially in accordance
with the approved Parcel 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,
the leasing and operation of the Project, the management of the 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, 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.
(u) Developer guarantees that as of December 31, 2009, the assessed
value of the new improvements constructed by the Developer on the Project Land
(not including the value of the land) will be not less than $3,000,000.00; and as of
December 31, 2010, the assessed value of the new improvements constructed by the
Developer on the Project Land (not including the value of the land) will be not less
than $13,000,000 in the aggregate; and as of December 31, 2011, the assessed value
of the new improvements constructed by the Developer on the Project Land (not
including the value of the land) will be not less than $18,000,000 in the aggregate;
and as of December 31, 2012, the assessed value of the new improvements
constructed by Developer on the Project Land (not including the value of the land)
will be not less than $28,300,000 in the aggregate. The City and the Authority agree
that in the event the City or the Authority receives grant funds in connection with the
Project, and if the grant funds reduce the City's and/or the Authority's borrowing
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needs in connection with the City's /Authority's construction of the Public
Improvements, then the valuations set forth in this subparagraph (u) may be reduced
to reflect the reduction in the City's /Authority's borrowing needs. If the City and
Authority secure a hotel development for Development Area 2 and if the hotel is
constructed on Development Area 2, then the valuations set forth in this
subparagraph (u) for the years 2010 and 2011 would be adjusted accordingly as
determined by the City and the Authority.
(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.
(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.
(x) Developer shall not make any changes to any Parcel 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 Parcel Project Cost Breakdown will
accurately reflect all Parcel Project costs that will be incurred by the Developer in the
development, completion, construction, furnishing and equipping of the subject
Parcel Project and the City and the Authority are entitled to rely on each Parcel
Project Cost Breakdown.
(z) Developer, at its cost and expense, may construct a marina with
permanent docks and slips adjacent to the riverwalk in the area shown on Exhibit A
attached hereto. If constructed, the marina, docks and slips shall be owned by the City
and/or the Authority and leased to Developer (as long as Developer is the owner of one or
more Parcels adjacent to the marina, docks and slips) 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 one or more Parcels adjacent to the marina, docks and slips or if
not the owner of one or more of such Parcels, then the tenant under the lease must be
approved by the City and the Authority, in their sole discretions. 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.
(aa) The Developer shall provide enhanced green space and a walkway
between the Parcels located between Marion Road and the riverwalk, in a location
designated by the City. At the request of the City, the Developer will grant the City a
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permanent easement upon, over, across and through such green space and walkway for
the use by and benefit of the public.
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 Parcel Project as expeditiously as possible, taking into
account applicable laws, rules, regulations and ordinances.
(b) The City and the Authority may elect, in their sole discretions, to
construct the riverwalk and river edge (described in paragraph 24 below) adjacent to
the Project at any time; provided, however, the City and the Authority agree to
commence construction of the riverwalk and river edge on a schedule that coincides
with the development of the Parcel Projects in the riverfront area.
(c) The City and the Authority will build public transient docks
located adjacent to the riverwalk in an area selected by the City and the Authority and
in a time period determined by the City in its sole discretion.
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 Parcel 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 Parcel Project with an extended replacement cost endorsement;
(b) During the construction of each Parcel 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 amounts maintained by owners of similar projects, and
insuring against bodily injury, including personal injury, death and property damage;
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(d) During the term of this Agreement, the contractors performing
work in connection with the Parcel Project shall have worker's compensation
insurance in amounts meeting all statutory state and local requirements; and
(e) Such other insurance as may be reasonably requested by City or
the Authority.
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. Damaize/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 Parcel Project. In the event of fire, damage or any other casualty to any
part of any Parcel Project prior to completion of the subject Parcel Project, Developer
agrees, at its cost and expense, to complete the Parcel Project and the Project, timely and
in a manner to create the values set forth in paragraph 6(u) above. Any change in any
Parcel Project 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 Parcel 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 Parcel Project or the Project, as the case may be, is not
completed on or before the Completion Date for that Parcel or Project, as the case
may be, or if any portion of the Project shall be damaged by fire or other casualty
and not be repaired, rebuilt or replaced as required by Paragraph 9 above; or
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(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, 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 and /or the 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 to Developer or any other person or entity shall automatically terminate.
If any Parcel Project is not commenced or completed within the time periods set
forth in paragraphs 2(f) and 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 Parcel 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
Parcel shall be removed and demolished at the cost of Developer, prior to reconveyance
of the Parcel 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
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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. Thereafter, the
City and the Authority shall have the right to convey all other portions of the Project
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
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 to comply with the terms and conditions of
this Agreement or any other document, contract or agreement affecting the Project,
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, 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 shall be paid for by Developer.
15. Parking Developer understands and agrees that it shall be Developer's
obligation to provide adequate parking for each Parcel Project complying with all
applicable laws, rules, regulations and ordinances, at Developer's cost and expense.
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dev agmt Osh River 3/09 18
16. Si na e. All signage installed at the Project, both during construction and
after completion of the 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 the Parcel Plans for each Parcel. 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 Parcel 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 Parcel 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, 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 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 will bind all owners in title to the
Project Land and the Project, during the term of the Tax - Exempt Covenant. In the event
any part of the Project Land and /or the Project, is exempt from general property taxation,
the owner of such exempt portion of the Project Land or Project, 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 or the Project Land, 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, including
without limitation: (a) the failure of Developer or its contractors, subcontractors, 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 of any environmental law, rule, regulation or
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dev agmt Osh River 3/09 19
ordinance; (e) the failure of Developer to comply with the environmental remediation
plan in effect with respect to the Project 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 or the
Project Land and/or injury to any property resulting from the Project or the Project Land,;
and (i) the failure of Developer to maintain, repair or replace, as needed, any portion of
the Project or the Project 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 Parcel 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 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 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 party shall seek or claim any such personal liability.
22. City /Authority Authorization The execution of this Agreement by the
City was authorized by Resolution of the City's Common Council dated
and by Resolution - of the Authority dated
23. Staff Approval All documents and agreements that require approval by
the City or the Authority in connection with this Agreement or the Project or the Project
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:
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dev agmt Osh River 3/09 20
(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 river edge 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 in a
location determined by the City and in a time period determined by the City in its sole
discretion.
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 in the manner described in paragraphs 7(b) and 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 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 and/or the Public Improvements. Neither the Developer
nor any other owner or lessee of any part of the Project or Project 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 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 Public Improvements may contain certain contaminants that
must be remediated prior to or during any development on the Project Land. The City
and the Authority will prepare an environmental remediation plan in connection with the
Project Land and the Public Improvements and each Parcel. The general approach the
City will take in a Parcel Remediation Plan is set forth in Exhibit C attached hereto. The
parties understand, however, that the City shall prepare an environmental remediation
plan specific to each Parcel (the plan for each Parcel being referred to herein as a "Parcel
Remediation Plan") once the Parcel Plans for that Parcel have been completed. The City
will consult with the Developer in the preparation of each Parcel Remediation Plan. The
City may, but is not required to, perform some remediation pursuant to the general
remediation plan or any Parcel Remediation Plan prior to the transfer of any Project Land
to the Developer. The City may elect instead to have the Developer perform the
environmental remediation for a Parcel pursuant to the Parcel Remediation Plan for that
Parcel. With respect to the environmental remediation of the Project Land, the following
terms shall apply:
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dev agmt Osh River 3/09 21
(a) The City will pay the cost of the environmental
remediation performed in accordance with the Parcel Remediation Plan.
(b) If Developer requests a level of remediation greater
than the remediation set forth in the City's Parcel 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
Parcel Project 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. Development Area 2 . It is the hope of the parties that a hotel would be
built on Development Area 2. The City and the Authority shall not be required to convey
all or any portion of the Development Area 2 to Developer if the City and the Authority
are able to secure a development proposal for a hotel for Development Area 2 by
September 30, 2009. If by September 30, 2009, the City and the Authority are unable to
secure a development proposal for a hotel for Development Area 2, then as long as the
Developer is not in default under the terms of this Development Agreement, and as long
as all conditions precedent to the conveyance of each Parcel as set forth in this
Agreement have been satisfied by Developer, then the City and/or the Authority shall
convey Parcels in Development Area 2 to Developer. The Developer shall use
Development Area 2 only for the purpose of construction of a hotel and/or commercial
space and/or residential housing.
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.
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dev agmt Osh River 3/09 22
(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 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.
(f) This Agreement is intended solely for the benefit of Developer and
the City and the Authority, and no third party (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,
QB \6560109.8
dev agmt Os6 River 3/09 23
shall be available for use by any contractor or other person in any dispute relating to
construction of the 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.
(1) If any party is delayed or prevented from timely completing
construction of any Parcel 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. Notwithstanding the foregoing, in the
event the Developer has not completed the Project on or before December 31, 2013,
the City and the Authority may, at their options and in their sole discretions,
QB16560109.8
dev agent Osh River 3/09 24
terminate this Agreement in which event, Developer shall have no further rights
under this Agreement, including without limitation, the right to conveyance from the
City and the Authority of any further portion of the Project Land. Upon such
termination, Developer shall complete any Parcel Project commenced prior to such
termination in accordance with the terms of this Agreement. Any liabilities and
obligations of the Developer accruing prior to such termination shall survive such
termination.
(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 any owner and/or lessee and /or
mortgagee of all or any portions of the Project Land and the 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 parry 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.
QB \6560109.8
dev agmt Osh River 3/09 25
In Witness Whereof, this Agreement is executed as of the date first above written.
City of Oshkosh, Wisconsin
By:
APPROV ED Mark A. Rohloff, City Manager
A
CITY TO
NKOSW, IN CONSIM
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally appeared before me this L day of t ag , 2009, the above -named
Mark A. Rohloff and Pamela R. Ubrig, City Manager and qty 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 authori
Pub ' tate isconsin
My Commission expires: /-:z
QB \6560109.8
dev agmt Osh River 3/09 26
Redevelopment Authority of the City of
Oshkosh, Wisconsin
�r /'� 15
By: ( - / -/ omas B l/
Thomas re el el
Attest: `- `y
Jack /04 R. Kinn , Vecutive Director
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally appeared before me this day of , 2009, 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.
Notary Public, State of Wisc nMy Commission expires:
QB \6560109.8
dev agent Osh River 3/09 27
Oshkosh River DevAopment, LLC, a
Wisconsin I' i i ility c n
By:
Name: v
Title: 6n , :l f 4-
STATE OF WISCONSIN )
)ss.
COUNTY )
Personally appeared before m thisA day of APA1 � , 2009, the above -
named � Y VR��0� 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 o pang nd by 'ts aut o 'ty.
Name:
Notary Public, State of W lscO s�}
My Commission expires: �'(� P LN
This instrument was drafted by:
Ann K. Comer, Esq.
Quarles & Brady LLP
411 E. Wisconsin Avenue
Milwaukee, WI 53202
QB \6560109.8
dev agmt Osh River 3/09 28
Exhibit A
(Exterior Boundaries of Project Land)
QB16560109.8
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Exhibit B
(Marion Road/Pearl Avenue Redevelopment Phase II Area)
QB16560109.8
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:
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
QB16560109.8 -31-
dev agmt Osh River 3/09
plans shall recognize the need to control environmental remediation costs, by
incorporating the following general elements:
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 Party Liability
Exemption program. Integrating environmental remediation with property
redevelopment will control costs and maintain the project momentum for all stakeholders.
QB16560109.8 -32-
dev agnt Osh River 3/09