HomeMy WebLinkAbout10-127REVISED
APRIL 13, 2010 10 -127 RESOLUTION
(CARRIED LOST LAID OVER WITHDRAWN )
PURPOSE: AMEND DEVELOPER AGREEMENT WITH OSHKOSH RIVER
DEVELOPMENT LLC FOR PURPOSE OF ALLOWING
CONVEYANCE OF PROPERTY IN THE MARION ROAD /PEARL
AVENUE REDEVELOPMENT AREA TO OTHER ENTITIES
INITIATED BY: CITY ADMINISTRATION & OSHKOSH RIVER DEVELOPMENT
REDEVELOPMENT AUTHORITY ACTION: Approved
WHEREAS, the Redevelopment Authority (RDA) and City of Oshkosh previously
approved a Development Agreement, as amended, with Oshkosh River Development LLC
for disposition and development of development areas in the Marion Road /Pearl Avenue
Redevelopment Phase II Area; and
WHEREAS, said Development Agreement requires that the development areas be
conveyed to Oshkosh River Development who could then convey the property to another
entity, and
WHEREAS, the proposed senior housing facility, known as `The Rivers', will be
funded in part with WHEDA funds and a condition of the WHEDA tax credit purchase is
that the RDA/City must convey the parcel directly to the entity that will oversee the facility;
and
WHEREAS, similar concerns may occur as development proceeds under said
Agreement with Oshkosh River Development; and
WHEREAS, Oshkosh River Development will maintain control during the
construction of the projects; and
WHEREAS, it is proposed to amend said Development Agreement with Oshkosh
River Development to address conveyances of development areas to other entities for the
purpose of facilitating financing for the projects consistent with the intent of the
Development Agreement as Amended and Restated.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the appropriate city officials are hereby authorized and directed to prepare
and execute any necessary documents to modify the Development Agreement, as
Amended and Restated, and to address conveyances of development areas to other
entities for the purpose of facilitating financing within the Marion Road Pearl Avenue
Redevelopment Area for approved projects consistent with the intent of the Development
Agreement, as Amended and Restated.
AMENDMENT TO THE
SECOND AMENDED AND RESTATED
DEVELOPMENT AGREEMENT DATED JULY 29, 2009
This is an Amendment made on April , 2010 to the Second Amended and Restated
Development Agreement dated July 29, 2009, by and between the City of Oshkosh, a Wisconsin
Municipal Corporation, and the Redevelopment Authority of the City of Oshkosh, Wisconsin,
(collectively "City") and Oshkosh River Development, LLC ( "Developer ").
RECITALS
WHEREAS, the City and the Developer have previously entered into a Development
Agreement, which has been Amended and Restated on two or more occasions ( "Development
Agreement "); and,
WHEREAS, the Development Agreement set forth the requirements for the development
of the Marion Road/Pearl Avenue Redevelopment Phase II Area, which is located in Tax
Increment District No. 13 and portions of Tax Increment District No. 21 ( "Project Land "); and,
WHEREAS, the Developer has received approval from the City to proceed with certain
Projects on the Project Land; and,
WHEREAS, for the purpose of carrying out the development of the Project Land has
been previously approved by the City, the Developer has formed a separate legal entity for the
purpose of developing the Project Land, and more particularly for the development of
Development Area 2, as identified in Exhibit A and which is incorporated herein; and,
WHEREAS, the entity by the Developer for the purposes of obtaining financing,
developing Development Area 2, and for other reasons that will facilitate the development of
Project Land has been formed pursuant to Wisconsin law and identified as River Front Senior
Apartments, LLC; and,
WHEREAS, the Developer has provided the City with the Operating Agreement for
River Front Senior Apartments, LLC, and which Operating Agreement identifies the exact same
members as those identified in the Operating Agreement for the Developer including, but not
limited to, Andrew J. Dumke and Arthur M. Dumke; and,
WHEREAS, the Operating Agreement for the River Front Senior Apartments, LLC is
substantially the same in all other respects as the Operating Agreement for the Developer; and,
WHEREAS, the Developer has advised the City that in order to obtain necessary and
sufficient financing through a Lender, WHEDA tax credit sale, and other issues, it is necessary
that the City agree to transfer certain Project Land to formal entity(ies) other than Oshkosh River
Development, LLC; and,
1
WHEREAS, the Developer requests that the City convey, and the City agrees to convey,
Project Land to entities other than Oshkosh River Development, LLC, provided: 1) the
Developer makes such requests in writing; 2) the requested entities are comprised of the exact
same members as the Developer; 3) Andrew J. Dumke and/or Arthur M. Dumke shall retain sole
management and ownership control over the day to day operations of the other entity; and, 4) the
operating agreement or other corporate governance document(s) of the other entity is the same or
substantially similar to that which controls Oshkosh River Development, LLC;
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree as follows:
1. The recitals in this Amendment are incorporated herein as assertions and promises of
the parties on which the other may rely upon and enforce in the event of a dispute;
2. Paragraph 2(g) of the Developer Agreement, as Amended and Restated, is deleted in
its entirety and replaced with the following:
2(g) "Developer" means: Oshkosh River Development, LLC, a Wisconsin limited
liability company, and any other entity formed pursuant to the laws of Wisconsin
which are comprised of the same owners as those in Oshkosh River Development,
LLC and also which Andrew J. Dumke and/or Arthur M. Dumke retain sole
management and control over the day to day operations of the other entity, and their
permitted successors and assigns.
3. Notwithstanding any term in this Amendment, or in the Development Agreement, as
Amended and Restated, the City shall retain the right, at its sole discretion, to request
and receive from the Developer, as that definition may be amended, all financial,
corporate, development, and other information that the City it its sole discretion
believes is necessary to carry out the terms of the development agreement.
4. Notwithstanding any term in this Amendment, or in the Development Agreement, as
Amended and Restated, Oshkosh River Development, LLC, shall be jointly and
severally liable with any other entity meeting the definition of developer for all terms,
requirements, and liabilities set forth in the Development Agreement, as Amended
and Restated, including the terms of this Amendment.
5. Oshkosh River Development, LLC waives any claim against and shall hold the City
harmless from any damages resulting from the City's conveyance of any Parcel
within the Project Land to any entity other than Oshkosh River Development, LLC
where said conveyance was at the request of Oshkosh River Development, LLC.
6. In all other respects not addressed by this Amendment, the terms and conditions of
Development Agreement, as Amended and Restated, are ratified and remain in full
force and effect.
2
In Witness Whereof,. this Agreement is executed as of the date first above written.
City of Oshkosh, Wisconsin
Mark A. Rohloff, City Manager
Attest:
Pamela R. Ubrig, City Clerk
STATE OF WISCONSIN)
WINNEBAGO COUNTY)
)ss.
Personally appeared before me this _ day of , 2010, the above -named Mark A. Rohloff, City
Manager, and Pamela R. Ubrig, City Clerk, of the City of Oshkosh, Wisconsin, to me known to be the persons who
executed the foregoing agreement on behalf of the City and by its authority.
Name:
Notary Public, State of Wisconsin
My Commission expires:
Redevelopment Authority of the City of
Oshkosh, Wisconsin
Thomas Belter, Chairman
Attest:
Mark A. Rohloff, Executive Director
STATE OF WISCONSIN)
WINNEBAGO COUNTY)
)ss.
Personally appeared before me this _day of , 2010, the above -named Thomas Belter, Chairman
and Mark A. Rohloff, Executive Director, 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 Wisconsin
My Commission expires:
Oshkosh River Development, LLC, a Wisconsin
limited liability company
By:_
Name:
Title:
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally appeared before me this _ day of , 2010, the above -named
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 Public, State of Wisconsin
My Commission expires:
4
CITY HALL
215 Church Avenue
P.O. Box 1130
Oshkosh, 54903-1130 City of Oshkosh
0
OIHKQIH
TO: Honorable Mayor and Members of the Common Council and
Members of the Redevelopment Authority of the City of Oshkosh
FROM: David J. Praska, Assistant City Attorney
DATE: March 26, 2010
RE: Resolution to Approve Amendment to Development Agreement, as
Amended and Restated, for Purpose of Allowing Conveyance of
Property in the Marion Road /Pearl Avenue Redevelopment Area to
Other Entities with the Same Owners as Oshkosh River
Development, LLC and also Controlled by Art and Andy Dumke
BACKGROUND
The City of Oshkosh and The Redevelopment Authority of the City of Oshkosh
and Oshkosh River Development, LLC entered into a development agreement for
the purpose of developing the area known as the Marion Road /Pearl Avenue
Redevelopment area. The Second Amended and Restated Development
Agreement between these parties was entered into on July 29, 2009, and
anticipated the sale of individual parcels within the Redevelopment Area to
Oshkosh River Development, LLC.
The member - owners have formed a separate entity, River Front Senior
Apartments, LLC, to develop and own the WHEDA- approved senior housing
facility in development area 2 of the project. The City has learned that a
condition of the WHEDA tax credit purchase is that the City must convey the
parcel identified as development area 2 directly to the River Front Senior
Apartments, LLC. Staff's interpretation of the current form of the Development
Agreement would require that the parcel be conveyed to Oshkosh River
Development, LLC, who would then convey the property to River Front Senior
Apartments, LLC.
0
Memo Dumke Amendment: 3/26/10: Page 2
Staff has been provided the Operating Agreements for both Oshkosh River
Development, LLC and River Front Senior Apartments, LLC. Both of the limited
liability companies are owned and controlled by the same people including, but
not limited to, Andy and Art Dumke. The terms of the Operating Agreements are
substantially the same.
ANALYSIS
The developer has requested that the Development Agreement be modified to
allow for the conveyance of property in this development area to entities other
than Oshkosh River Development, LLC. The resulting proposed Amendment to
the development agreement allows the conveyance of the development property
to other entities, provided the other entities are owned by the same individuals as
Oshkosh River Development, LLC, and controlled on a day -to -day basis by Andy
and /or Art Dumke. The remainder of the Development Agreement would remain
in place. All entities will remain bound by the terms of the Development
Agreement. The only change is the party to whom property may ultimately be
conveyed.
FISCAL IMPACT
There is no anticipated Fiscal Impact from the requested action
RECOMMENDATION
It is recommended that the Redevelopment Authority and the Common Council
approve the resolution to Amend the Development Agreement, as Amended and
Restated, to allow the conveyance of property in the development area to other
entities owned and controlled by the same persons who own and control the
Oshkosh River Development, LLC.
ectfu Submitted, Approved:
Davi
lJ! Praska
Mark A. Rohloff
Assistant City Attorney City Manager