HomeMy WebLinkAboutOshkosh River Development LLC 7/2009-CNG #2Second Amended and Restated Development Agreement
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This Second Amended and Restated Development Agreement is made this cV day
of July, 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, which was amended and restated by an Amended and
Restated Development Agreement dated April 29, 2009, 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) The City, the Authority and Oshkosh River Development, LLC want to modify
certain terms and provisions of the Prior Development Agreement.
(iii) The parties 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. Pro iect 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 and the Authority to
develop the Project Land (as hereinafter defined). This Second Amended and Restated
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:
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AUG 13 2009
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(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: 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 or
the Developer itself, if the Developer is acting as general contractor for a Parcel Project, hired 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 and the Authority to be a separate and distinct parcel of
real estate on which a Parcel Project will be constructed and developed. A Development Area
may contain one or more Parcels.
(m) "Parcel Land" means: The land comprising a Parcel.
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(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 or any other owner of a Parcel 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 pursuant to Parcel Plans approved by the City and the Authority. It is intended that the
Parcels in Development Area 2 will be used for residential uses. It is intended that the Parcels in
Development Area 3 will be used for commercial and residential purposes as a primary use.
Each of the projects to be developed on any Parcel 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 on
the Project Land.
(r) "Project Architect" means: For each Project, the architect hired to design
the Parcel Project and to perform all other architectural services in connection with the Parcel
Project.
(s) "Project Land" means: Development Areas 2 and 3 as shown on Exhibit
A attached hereto, and any other Parcel developed by the Developer pursuant to paragraph 28
below.
(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.
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(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 Parcel Projects
for Development Areas 2 and 3 and any Parcel included in the coverage of this Second Amended
and Restated Development Agreement pursuant to paragraph 28; and (b) unless otherwise agreed
by the parties, the City and the Authority will construct the Public Improvements; and (c) the
City or the Authority will convey the Project Land to the Developer.
4. Conditions Precedent to City's and Authority's Oblilzations In addition to all
other conditions and requirements set forth in this Agreement, the obligations of the City and the
Authority under this Second Amended and Restated 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 and the Authority so that the
development on Development Areas 1, 2, 3 and 4 will 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 August 31, 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.
(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.
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(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. 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 zoning and land use approvals and permits 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 and the Authority for the
purpose of obtaining all other permits, approvals and licenses as are required in
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 and the Authority, 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 Areas 1 and 4 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.
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(f) On or before July 31, 2009, each of the City and the Authority
shall have approved this Second Amended and Restated Development Agreement.
(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 and Authority's sole options:
(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
(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 and the Authority of a letter of credit
in an amount determined by City and the Authority 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.
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(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 Second Amended and Restated 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 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, on the one hand,
and the City and the Authority, on the other hand, 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. The final Parcel and Development Area
boundaries for Development Areas 2 and 3 will be determined by mutual agreement of
the parties to this Second Amended and Restated 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.
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The obligations of the City and the Authority under this Second Amended and Restated
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 Second Amended and
Restated 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
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 Second Amended and Restated 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.
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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 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 its 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.
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(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.
(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 Breakdown 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, each of Art Dumke and
Andy Dumke shall at all times own the same percentage membership interest in Developer
that each owned as of the date of this Agreement. 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 or any other
entity which owns a Parcel and there shall be no amendment or modification to the
formation documents of Developer or such other ownership entity which would in any way
modify or change such day -to -day management and control of Developer or such ownership
entity by Art Dumke and /or Andy Dumke. Prior to completion of construction of the
Project, Art Dumke and/or Andy Dumke shall at all times have sole day -to -day management
and control over the Project. In the event the City and the Authority consent to the transfer
of any Parcel to a person or entity other than Developer, the City and the Authority may
impose other restrictions on the transfer of ownership interests in such person or entity and
on issues related today -to -day management and control of any Parcel Project as a condition
to the City's and Authority's consent to the transfer of any Parcel to such person or entity.
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(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 Project in the Project without the prior written consent of the City and the Authority,
which consent the City and /or the Authority may withhold in their sole discretions. If
consent is granted, the transferee of any Parcel shall be bound by the terms of this Second
Amended and Restated Development Agreement with respect to the Parcel transferred as if
the transferee had been an original parry to this Second Amended and Restated Development
Agreement and all provisions of this Second Amended and Restated Development
Agreement applicable to the Developer shall be applicable to such transferee. Any
transferee, as a condition of the City's and the Authority's consent, shall be required to
assume in writing all obligations of the Developer under this Second Amended and Restated
Development Agreement with respect to the Parcel transferred.
(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, 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.
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2nd Amendment Osh River 6/09 11
(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 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.
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2nd Amendment Osh River 6/09 12
(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) The City and the Authority shall be reasonably satisfied that as of
December 31, 2009, the assessed value of the new improvements constructed by the
Developer and others on Development Areas 1, 2, 3 and 4 (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 and others on Development Areas 1,
2, 3 and 4 (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 and others on Development Areas 1, 2, 3, and 4 (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
Development Areas 1, 2, 3 and 4 (not including the value of the land) will be not less than
$28,300,000 in the aggregate. In the event the City or the Authority receives grant funds in
connection with the Public Improvements, and if the grant or other available funds reduce
the City's and/or the Authority's borrowing 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.
(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) If the Developer develops Development Area 1 pursuant to paragraph 28
below, 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
QB18241754.4
2nd Amendment Osh River 6/09 13
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) If Developer develops Development Area 1 pursuant to paragraph
28 below, the Developer shall provide enhanced green space and a walkway
between or on one of the Parcels that may be created in Development Area 1,
between Marion Road and the riverwalk, in a location designated by the City and
the Authority. At the request of the City and the Authority, the Developer will
grant the City and the Authority a 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 and the Authority 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 and the Authority in their sole discretions.
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:
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2nd Amendment Osh River 6/09 14
(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;
(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 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 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 the Parcel Project Cost Breakdown for the Parcel Project. 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
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2nd Amendment Osh River 6/09 15
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
(e) Developer or any of its members 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 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
(f) If Developer shall cease to exist; or
(g) 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
QB \8241754.4
2nd Amendment Osh River 6/09 16
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.
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. 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, this Second Amended and Restated 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.
16. Signage 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.
----------------------------------------
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2nd Amendment Osh River 6/09 17
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 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.
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2nd Amendment Osh River 6/09 18
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 409 -277 of the City's Common Council dated July 14, 2009 and by
Resolution #09 -07 of the Authority dated June 29, 2009.
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 as
follows:
(a) An approximately 1.132 -acre, 30 -foot wide riverwalk between
Development Areas 1 and 2 and the Fox River to be designed, constructed and installed in
accordance with plans and guidelines established by the City and the Authority; and
(b) Improvements to the river edge bordering the riverwalk adjacent to
Development Areas 1 and 2, to be designed, constructed and installed in accordance with plans
and guidelines established by the City and the Authority; and
(c) Public transient docks located adjacent to the riverwalk in a location
determined by the City and the Authority and in a time period determined by the City and the
Authority in their sole discretions.
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2nd Amendment Osh River 6/09 19
It is the City's and Authority'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 Riphts 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 Development Areas 1 and 4 and the 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 Development Areas 1 and 4 and the Public Improvements and each Parcel.
The general approach the City and the Authority will take in carrying out a Parcel Remediation
Plan is set forth in Exhibit C attached hereto. It is the intent of the City and the Authority that
through implementation of the remediation plan, which may include site improvements by the
Developer that contribute to implementation of the remediation plan (e.g., capping activities),
that environmental closure will be achieved for the Parcels in the Development Areas. The
parties understand, however, that the City and the Authority 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
and the Authority will consult with the Developer in the preparation of each Parcel Remediation
Plan. The City and the Authority may, but are 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 and the Authority 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:
(a) The City and the Authority 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 and Authority'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 and the Authority will cooperate with the Developer in obtaining
grants from various governmental entities to help offset Developer's costs associated with the
remediation.
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2nd Amendment Osh. River 6/09 20
(d) In the event that an unforeseen environmental condition is discovered on
any particular Parcel, which condition would cause the cost of remediation of any Parcel to be
greater than what was anticipated at the time the Parcel Remediation Plan was prepared, and if
neither the Developer nor the City nor the Authority is willing to pay the additional cost of
remediation, then the Parcel shall be withdrawn from the coverage of this Second Amended and
Restated Development Agreement. Such withdrawal shall not be a default by the City or the
Authority or the Developer under this Second Amended and Restated Development Agreement.
Developer understands and agrees that in such event, the Developer shall no longer have the
right to develop such Parcel.
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 Areas 1 and 4 . The City and the Authority intend to solicit and
consider proposals for the development of Development Areas 1 and 4. Developer shall have the
right, but not the obligation, to submit proposals to the City and the Authority. Those proposals
will be assessed in the same manner as proposals received from any other person or entity. With
respect to Development Areas 1 and 4, the City and the Authority agree, however, that they will
not solicit or accept any proposal for the development of office buildings, residential apartments
and /or condominiums, mixed commercial /residential development or a stand -alone restaurant
from any person or entity other than Developer prior to December 31, 2012. Thereafter, there
shall be no restrictions on the use of Development Areas 1 and 4, and the City and the Authority
may approve any uses by any person or entity for Development Areas 1 and 4 as they see fit.
The Developer understands that the City and the Authority shall have the right, but not the
obligation, to require that any proposal for the development of Development Areas 1 and 4 be a
comprehensive and detailed development plan for the entire Development Area 1 and 4, and
satisfy the City's and Authority's goals for valuation as described in subparagraph 6(u) above. In
the event the Developer develops any Parcel pursuant to the provisions of this paragraph 28, then
such Parcel shall be automatically subject to the terms and conditions of this Agreement and
shall become part of the Project Land for all purposes of this Second Amended and Restated
Development Agreement. Developer agrees that at such time, a memorandum of this Agreement
shall be recorded in the office of the Register of Deeds of Winnebago County, Wisconsin, with
respect to such Parcel, 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) below, this Agreement will run with such Parcel and will be
binding upon such Parcel and any owner and/or lessee and/or mortgagee of all or any portions of
such Parcel and their successors and assigns.
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.
QB18241754.4
2nd Amendment Osh River 6/09 21
(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 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, shall be available for use by any contractor or other
person in any dispute relating to construction of the Project.
----------------------------------------
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2nd Amendment Osh River 6/09 22
(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 Second Amended and Restated 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, 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.
QB18241754.4
2nd Amendment Osh River 6/09 23
(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 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 Second Amended and Restated Development Agreement amends,
restates and supercedes the Prior Development Agreement in its entirety.
QB18241754.4
2nd Amendment Osh River 6/09 24
In Witness Whereof, this Agreement is executed as of the date first above written.
City of Oshkosh, Wisconsin
Mark A. Rohloff, City Manag
Attest:'
Pamela R. Ubrig, City Clerk
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY ) n
Personally appeared before me thia'� day of , 2009, the above -named Mark A.
Rohloff, City Manager, and Pamela R. Ubrig, City Cl , o 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.
QB \8241754.4
2nd Amendment Osh River 6/09
4 e: ZQa-4oLV
Notary Public, State of Wisconsin
My Commission expires: �� 6
25
Redevelopment Authority of the City of
Oshkosh, Wisconsin
By:
Thoma elter, Chairm
Attest:
Jac inney, cutive Director
STATE OF WISCONSIN
)ss.
WINNEBAGO COUNTY )
Personally appeared before me thisA day of � t"- , 2009, the above -named Thomas
Belter, Chairman and Jackson Kinney, Executive Director, of he 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.
uc Q '� %nz
Notary Pu lic, State of Wiscopsi
My Commission expires: `I I jo 1
QB \8241754.4
2nd Amendment Osh River 6/09 26
Oshkosh River Development, LLC, Wisconsin
limited liabi ' c any
By:
Nam .
Title: 1;- A ,--C.<
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally appeared before me this A ayof it , 2009, the above -named
q r� btm) a) Ern 6 ear of Oshkosh River Development, 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.
Notary Pub tic, State of Wisconsin
My Commission expires: ,2)d4l / 3
This instrument was drafted by
and upon recording return to:
Ann K. Comer, Esq.
Quarles & Brady LLP
411 E. Wisconsin Avenue
Milwaukee, WI 53202
QB \8241754.4
2nd Amendment Osh River 6/09 27
Exhibit A
(Development Areas 1, 2, 3, and 4)
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Exhibit B
(Marion Road/Pearl Avenue Redevelopment Phase II Area)
QB \8241754.4
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 \8241754.4 -30-
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 Party Liability
Exemption program. Integrating environmental remediation with property
redevelopment will control costs and maintain the project momentum for all stakeholders.
QB \8241754.4 -31-