HomeMy WebLinkAbout20. 14-116
MARCH 11, 2014 14-116 RESOLUTION
(CARRIED__6-0_____LOST_______LAID OVER_______WITHDRAWN_______)
PURPOSE: APPROVE ASSIGNMENT OF LEASE WITH WHEDA AND
CONTINGENT AMENDMENT OF THE DEVELOPMENT
AGREEMENT WITH MARION ROAD APARTMENTS LLC /
RIVERS II DEVELOPMENT
INITIATED BY: COMMUNITY DEVELOPMENT
REDEVELOPMENT AUTHORITY RECOMMENDATION: Approved
WHEREAS, the Common Council and Redevelopment Authority (RDA)
previously approved a Developer Agreement and Lease Agreement with Marion Road
Apartments LLC and an Assignment of Lease to WHEDA as part of the construction
plans for a multi-family apartment development on the south side of Marion Road within
the Marion/Pearl Redevelopment Area; and
WHEREAS, upon review of the Assignment of Lease, WHEDA is requesting a
revision that should Marion Road Apartments LLC default on its loan with WHEDA
during construction of the project, WHEDA would not indemnify and hold the City/RDA
harmless or its environmental engineer, AECOM, for any intentional or negligent acts of
the City/RDA or AECOM; and
WHEREAS, said revision to the Assignment of Lease with WHEDA would also
be a contingent amendment to the Development Agreement with Marion Road
Apartments LLC.
NOW, THERFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the attached Assignment of Lease with WHEDA is hereby approved and
the proper officials are hereby authorized to execute an Assignment of Lease, similar in
terms to the attached, any changes in the execution copy being deemed approved by
their respective signatures.
BE IT FURTHER RESOLVED that the Development Agreement with Marion
Road Apartments LLC is hereby amended to reflect the amendments in the Assignment
of Lease as requested by WHEDA in the event Marion Road Apartments LLC defaults
on its loan with WHEDA.
OfHKOfH
0 NE WATER
TO: Honorable Mayor and Members of the Common Council
FROM: Allen Davis, Community Development Director
DATE: March 7, 2014
SUBJECT: Approve Assignment of Lease with WHEDA and Contingent Amendment
of the Development Agreement with Marion Road Apartments LLC /
Rivers II Development
Background
In November, 2013, the Council and RDA approved an Assignment of Lease and
Development Agreement as part of the Marion Road Apartments LLC (Rivers 11)
redevelopment in the Marion Road Redevelopment District. The Lease was based on
the Rivers I project from 2011. The developer has guaranteed a value of at least
$5,200,000 for the Rivers II project in TID #21.
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The approved documents were then included in the developer's application to the
Wisconsin Housing and Economic Development Authority (WHEDA) for a $7,000,000
loan. WHEDA legal counsel reviewed the documents and has requested a change to
the agreement language. While most of the requested changes are not substantial, one
proposed revision involves the Indemnification paragraph of the agreement and staff
considers this proposed revision a material change requiring RDA and City Council
approval.
Analysis
Marion Road Apartments LLC is the project developer and is contributing about
$1,000,000 to the project. The RDA owns the land and the City is spending $800,000 to
remediate the site in the course of the construction. In addition, the City has obtained a ,
$300,000 WEDC grant to help pay for what we believe will be higher remediation costs
on the site. Once the construction is complete, WisDNR will grant the RDA a Certificate
of Completion and the RDA will be able to transfer title to the new owner, protected from
environmental liability. Because the City will continue to own the real property during
the construction of the project, the agreement includes a provision that the developer
holds the City harmless for all acts and costs in the course of the project. That would
not change with the revision.
If the developer fails to perform, the Agreement would allow WHEDA to assume the
benefits, obligations and liabilities of the Agreement. If WHEDA steps into the shoes of
the developer, and completes the project, the proposed revision could affect the City.
A typical indemnification provision would indemnify a party such as the City for all
losses and costs. If WHEDA assumes the completion of the Rivers 2 project, WHEDA
does not want to indemnify and hold harmless the City and our contract environmental
engineer, AECOM, for any intentional or negligent acts of the City or AECOM. This is
not necessarily unusual or unreasonable. The City requires AECOM to carry
$1,000,000 in professional Errors and Omission insurance to cover such circumstances.
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However, in addition, under the proposed revision WHEDA as the successor to the
Developer would also not pay the City's attorney's fees, professional service fees and
expert witness fees related to acts or omissions prior to WHEDA assuming the
Agreement, even when such acts or omissions were not the acts or omissions of the
City or the City's consultant and over which the City may have had no control. As noted
above, because the City as the landowner can be drawn into disputes and controversies
related to the developer's actions on the property during construction (environmental
issues, damage to property of other, personal injury, etc...), the City in the developer's
agreement sought legal assurances that if the City is sued related to something the City
had no control over that the developer would protect the City and hold it harmless and
reimburse the City if the City is required to pay for losses or incurs costs defending itself
for something that the developer did or did not do. The proposed revision would likely
eliminate the ability of the City to recover for its costs for attorney and professional fees
and expert witness fees if it is drawn into a controversy.
These possible fees could amount to thousands of dollars and would not be covered by
the City's insurance because the City has contractually agreed to assume these risks.
This type of exclusion is not typical and in the Rivers I project, neither Westpointe Bank
nor WHEDA required this clause. However, WHEDA has new legal counsel on staff.
Now that Rivers I is complete, I think the developer, City and AECOM have a better
understanding of the potential construction risks on the site. In addition, the developer's
investment in the project, their track record in Marion Road and the City, it would seem
that it is unlikely WHEDA will take over the construction and complete the project. If
WHEDA does take over the project, WHEDA would also assume the minimum valuation
clause and WHEDA has indicated that they would pay the property taxes. The funds
that the City may have to spend on the attorneys, professional and expert witness may
be T1F eligible expenses .
The RDA approved WHEDA's request at their March 5, 2014 meeting. In the RDA's I
deliberation on the issue, the following points were discussed;
1. The developer's track record has been good in the City and on Marion Road.
2. The RDA owns property all around site and should not be a problem neighbor.
3. The developer will be using North Central as the general contractor and they also
have a good track record in the City.
4. We have good knowledge of the site's underground conditions and the City's
remediation engineer, AECOM, has helped remediate and close all the sites on
Marion in the last 10 years.
5. Rivers 1 has been a success and the developer still owns it, and would be
motivated to protect it, and that would deter him from walking away from the
Rivers 2 project.
6. The developer would lose their $955,000 equity, which is an incentive for him to
build the project, and not let WHEDA take over.
The WHEDA loan closing is scheduled for the middle of March, 2014,
Recommendation
Council approves the WHEDA-proposed revision to the Assignment of Lease and
Development Agreement.
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ASSIGNMENT OF LEASE AND DEVELOPMENT AGREEMENT
THIS ASSIGNMENT OF LEASE AND DEVELOPMENT AGREEMENT (the 'Assignment") is
made effective this day of , 2014, by and between MARION ROAD APARTMENTS, LLC, a
Wisconsin limited liability company ("Borrower"), WISCONSIN HOUSING AND ECONOMIC
DEVELOPMENT AUTHORITY, a Wisconsin public body corporate and politic ("Lender"), the CITY OF
OSHKOSH, a Wisconsin municipality, and the CITY OF OSHKOSH REDEVELOPMENT AUTHORITY
(collectively, the "City") by virtue of being the Landlord of the Property (collectively referred to as
"Parties") (individually as"Party").
RECITALS
WHEREAS, the City of Oshkosh Redevelopment Authority is the owner of that property
commonly known as Lot 2 of Project - South as part of the Marion Road/Pearl Avenue Redevelopment
Phase 11 Area and more particularly described as part of Lot 2 of Certified Survey Map 6408 in Exhibit A
attached to this Assignment (the "Property"), which Certified Survey Map 6408 was recorded with the
Winnebago County Register of Deeds on October 5, 2009, as Document Number 1520619, and is
incorporated into this Assignment;
WHEREAS, the City and Borrower have entered into a Development Agreement, dated
December. 19, 2013, for the Property (the "Development Agreement") which, among other things,
governs aspects of the development of the Property, a copy of which is attached hereto as Exhibit B;
WHEREAS, the City and Borrower have entered into a Lease Agreement, dated December 19,
2013, for the Property (the "Lease") to allow Borrower to begin development and construction on the
Property, a copy of which is attached hereto as Exhibit C;
WHEREAS, the Lender is making a loan to the Borrower for construction of a building on the
Property (the"Loan"); and
WHEREAS, in order to make such loan, the Lender is requiring that the City of Oshkosh and the
City of Oshkosh Redevelopment Authority both consent to this Assignment, and that Borrower enters into
this Assignment as a condition of obtaining the Loan.
NOW THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties
agree as follows:
AGREEMENT
1. Recitals. The foregoing recitals are adopted by the Parties, incorporated herein by
reference and made a part of this Assignment,
2. Assignment. As a condition of obtaining the Loan, Borrower hereby assigns, grants,
and conveys to Lender all of its rights, title, and interest under the Lease and the Development
Agreement (the Lease and the Development Agreement collectively referred to as the "Agreements") for
collateral purposes. The Parties agree that such assignment is being done solely for the purpose of
securing all payments and obligations of the Borrower in relation to all loans and loan obligations issued
to the Borrower for construction purposes or other purposes in relation to the development or use of the
Property, and that the Lender will not exercise its rights under this Assignment unless Borrower is in
default under the terms and conditions of any note, line of credit, loan document, this Assignment, or any
other obligation secured by this Assignment, for construction or development on the Property.
3. Payment and Performance. Borrower agrees to pay to Lender all amounts owed to the
Lender that are secured by this Assignment in a timely manner, and Borrower agrees to strictly perform
(1) all of Borrower's obligations under this Assignment; (2) all of Borrowers obligations under each of the
Agreements; and (3) all of Borrower's obligations under any agreements between Borrower and Lender
associated with, or related to, the Loan (collectively, the "Loan Documents" as such term is defined in
the Loan Agreement even date herewith between Borrower and Lender). So long as Borrower is not in
default under the terms of this Assignment and not in default of any of the Agreements or Loan
Documents, Borrower shall remain in sole possession and control of the Property (subject to any rights
retained by the City) and be considered to be the Lessee under the Lease.
4. Notice. Borrower agrees that at no time shall Borrower be in default under the terms and
conditions of any of the Agreements, and in the event that Borrower shall be in default of any of the
Agreements, or any default under those Agreements is about to take place (including, but not limited to,
the insolvency of Borrower and other defaults contemplated in Section 12 of the Lease, and
abandonment by Borrower contemplated in Section 17 of the Lease), Borrower agrees to immediately
notify Lender. In the event that Borrower shall be in default of.any of the Agreements, the City shall
reasonably endeavor to notify Lender pursuant to Section 17 below, and shall give Lender a reasonable
opportunity to either step into the Agreements, or cure such default on account of Borrower. Borrower
and Lender agree to notify the City of any default, beyond any applicable cure period, under any of the
Loan Documents. The City shall not be liable to Lender for any damage sustained by Lender due to a
default of Borrower under the Agreements, City's failure to alert Lender of such default, or any action
Lender does or does not take in response to a default by Borrower under the Agreements.
5. Warranties and Representations by Borrower. Borrower hereby represents and
warrants that as of the date of signing this Assignment, the following:
a. Ownership. Borrower is entitled to all rights and title under the Lease and has not
entered into any other loan obligation in relation to the Property.
b. Right to Assign. Borrower has full right and approval from the City to assign the
Agreements for collateral purposes.
C. No Prior Assignment. Borrower has not conveyed or previously assigned any right under
any of the Agreements prior to entering into this Assignment.
d. No Further Transfer. Borrower will not sell, assign, encumber, or otherwise dispose of
any of Borrower's rights in the Agreements other than those issued in this Assignment.
6. Lender's Right to Step Into the Agreements. Lender shall have the right, but not the
obligation, at any time upon a default by Borrower under this Assignment or any of the Agreements to:
(a) enter upon and take possession of the Property under the Lease, (b) to perform Borrower's duties and
receive Borrower's benefits under the Lease, and (c) to perform Borrower's duties and receive Borrower's
benefits under the Development Agreement with the City with respect to the Property: In the event of a
default by the Borrower, the Lender shall be given a reasonable opportunity to cure any default by the
Borrower under the terms of the Agreements to preserve its collateral interest in the Property, including,
but not limited to the right to purchase the Property, and receive the benefit of the City Grant, the WEDC
Grant, and the City Contribution (as those terms are defined in the Development Agreement),all on the
same terms and conditions as the Borrower. Lender may engage any agent or agents as Lender may
deem appropriate to carry out the terms and conditions of those Agreements. To the extent that the
Lender steps into the Lease and/or the Development Agreement in place of the Borrower, the Lender
specifically assumes all obligations and liabilities of the Borrower pursuant to such Agreement, except as
modified in Section 14 below.
Prior to stepping into the Lease or the Development Agreement, the Lender shall notify the City in writing
of its intent to take such action. The Lender's notification to the City shall identify the specific default(s)of
the Borrower and the specific authority for the Lender's action. Borrower agrees that the City shall be
able to reasonably rely upon the information in the Lender's notice and to take all reasonable actions in
reliance upon such notice. Borrower releases, and specifically waives, all claims for damages under any
theory against the City based upon the City's reasonable reliance upon the Lender's notice.
The Lender's rights with respect to the Development Agreement shall survive any termination of the
Lease triggered by the purchase of the Property as contemplated in the Lease.
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7. Lender's Right to Confer with the City. Lender shall have the right at any time, even
though no default may have occurred under this Assignment or any of the Agreements, to confer with the
City to determine whether, to the City's knowledge, any default has occurred in relation to Borrower's
performance under the Agreements.
8. Consent by City. The City hereby consents to this Assignment so long as Lender does
not exercise its rights to assume either of the Agreements until such time as either: (a) the Lender is
notified of an actual default under this Assignment or one or more of the Agreements; or (b) the Lender
has declared a default under any of the Loan Documents.
9. Legal Expenses. If any legal action or other proceeding between the Lender and the
Borrower is brought for the enforcement of this Assignment, or because of an alleged or actual dispute,
breach, default or misrepresentation between the Lender and the Borrower in connection with any
provision of this Assignment, and the Lender shall be successful in the enforcement of this Assignment,
the Lender shall be entitled to recover from the Borrower reasonable attorneys' fees and other costs
incurred in such action or proceeding in addition to any other relief to which it may be entitled.
10. No Waiver. The failure of Lender to insist upon any one or more instances of strict
performance of any of the terms of this Assignment or to institute any action, including the rights and
privileges granted to it shall not be construed as a waiver of such terms.
11. Binding Effect. This Assignment binds and inures to the benefit of the Parties and their
respective successors and permitted assigns, as the case may be.
12. Governinq Law and Venue. This Assignment has been negotiated and executed in the
State of Wisconsin and shall be governed by and interpreted and construed in accordance with the laws
of the State of Wisconsin. In the event of any dispute, the venue of any litigation shall be the Circuit
Courts of Winnebago County, Wisconsin.
13. Right to Record Memorandum of Assignment. Contemporaneously with the
execution of this Assignment, the Parties shall execute the Memorandum of Assignment, as set forth in
Exhibit D attached to this Assignment, and deliver an original of such Memorandum of Assignment to
Lender. Lender may cause the Memorandum of Assignment to be recorded with the Register of Deeds of
Winnebago County. Upon the termination of this Assignment, or the termination of one or both of the
Agreements, at the request of any Party, the Parties will execute a document in recordable form,
amending or terminating the Memorandum of Assignment as applicable.
14. Modification of Terms in Event of Assumption by Lender.
(a) If Lender specifically assumes all obligations and liabilities of the Borrower pursuant to
the Lease, upon such assumption, the terms of the Lease shall be modified as follows:
(i). Lender shall not,be required to hold the City harmless from any accident or
incident arising, in whole or in part, from (1) the intentional or negligent acts of
the City, AECOM, Inc. (the City's agent overseeing the remediation), or either's
agents, contractors, subcontractors, invitees or employees, or (2) any
professional errors or omissions of AECOM, Inc.
(ii) Lender's obligation to hold the City harmless from any accident or incident shall
exclude attorneys'fees, professional service fees, and expert witness fees.
(b) If Lender specifically assumes all obligations and liabilities of the Borrower pursuant to
the Development Agreement, upon such assumption, the terms of the Development
Agreement shall be modified as follows:
(i) Lender shall not be required to hold the City harmless and indemnify the City for
any violations of the terms and conditions of the WEDC Grant (as defined in the
Development Agreement) arising, in whole or in part, from (1) the intentional or
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negligent acts of the City, AECOM, Inc., or either's agents, contractors,
subcontractors, invitees or employees, or (2) any professional errors or
omissions of AECOM, Inc.
(ii) Lender shall not be required to indemnify the City under Section 13 of the
Development Agreement to the extent such loss, liability, damage or expense
arises, in whole or in part, from (1) the intentional or negligent acts of the City,
AECOM, Inc., or either's agents, contractors, subcontractors, invitees or
employees, or(2) any professional errors or omissions of AECOM, Inc.
(iii) Lender's indemnification obligations under Section 13 of the Development
Agreement shall exclude attorneys' fees, professional service fees, and expert
witness fees.
15. Lender's Liens and Encumbrances. Notwithstanding anything to the contrary in Section 23 of
the Lease, the City hereby explicitly permits the granting and recording of liens and encumbrances
associated with the Loan against Borrower's leasehold interest in the Leased Premises (as that term is
defined in the Lease). The granting of such liens and encumbrances by Borrower to Lender shall not
constitute a default under Section 23 the Lease. If Borrower fails to acquire fee title to the Leased
Premises, then upon the termination or expiration of the Lease, any liens and encumbrances held by
Lender on Borrower's leasehold interest shall automatically terminate, and such liens and encumbrances
shall be released of record upon request by the City. Notwithstanding the foregoing, any liens and
encumbrances held by the Lender on the buildings, structures, and improvements located, or to be
located, on the Property shall not terminate or be released upon the termination or expiration of the
Lease.
16. Subordination of City Mortgage and Control over Casualty and Condemnation Proceeds.
(a) Per Section 11(c) of the Development Agreement, the City agrees and acknowledges
that the mortgage contemplated in Section 11 of the Development Agreement (the "City
Mortgage") shall be subordinate to Lender's liens and encumbrances on the Property
(including Lender's leasehold mortgage during the term of the Lease, and Lender's
mortgage on Borrower's fee estate once it takes fee title), and the City shall execute and
deliver to Lender any reasonable documents required to document such subordination of
the City Mortgage both as of the date hereof (if the City Mortgage has already been
recorded), and upon the conveyance of the Property to Borrower.
(b) In the event of fire or any casualty, control over any insurance proceeds granted to the
City in the Development Agreement or in the City Mortgage shall be subordinate to the
rights over such proceeds granted to Lender in the Loan Documents.
(c) In the event of condemnation, control over any condemnation proceeds granted to the
City in the City Mortgage shall be subordinate to the rights over such proceeds granted to
Lender in the Loan Documents.
17. Notice of Default. Lender and the City acknowledge that both have a mutual interest in the
successful remediation of the Property, and the successful construction and operation of the
improvements, as contemplated in the Agreements and the Loan Documents (collectively, the "Project").
As such, upon a default by Borrower under either of the Agreements or under any of the Loan
Documents, and prior to the City or Lender enforcing any remedy against Borrower that would have a
material adverse effect on the City or Lender except in the case of an emergency, the City, in the case of
a default under either of the Agreements, shall endeavor in good faith to notify Lender; and Lender, in the
case of a default under any of the Loan Documents, shall endeavor in good faith to give notice to the City.
The City and Lender shall then discuss the specifics of the default and the alternative remedies that may
be available to address the default in light of the relevant facts and circumstances. The City and Lender
shall work together in good faith in an effort to salvage the Project. In connection with any such effort that
involves Lender assuming any obligations under the Agreements, the City shall in good faith carefully
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consider granting any reasonable request from Lender to further amend the Agreements so that no
defaults exist under the Agreements at the time of assumption.
Notices of default shall be given to the City and Lender at the following addresses:
City: City of Oshkosh
Attn: City Attorney
City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh,WI 54903-1130
Lender: Wisconsin Housing and Economic Development Authority
Attn: General Counsel
201 West Washington Avenue, Suite 700
Madison, Wl 53703-2727.
18. Multiple Counterparts. This Assignment may be simultaneously executed in multiple
counterparts, all of.which shall constitute one and the same instrument and each of which shall be
deemed to be an original.
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EACH PARTY ACKNOWLEDGES THAT THEY HAVE CAREFULLY READ AND FULLY
UNDERSTAND ALL OF THE PROVISIONS QF THIS ASSIGNMENT.
IN WITNESS HEREOF, the parties have hereunto set their hands the day and year first above
written.
BORROWER: LENDER:
Marion Road Apartments, LLC, Wisconsin Housing and Economic
a Wisconsin limited liability company Development Authority
By: Northpointe Holdings, LLC,
a Wisconsin limited liability company By:
Sole Member Timothy J. Radelet
General Counsel
By:
Callan L. Schultz
Member
CITY:
City of Oshkosh Redevelopment Authority City of Oshkosh
By: By:
Name: Name:
Title: Executive Director Title: City Manager
By:
Name:
Title: City Clerk
By:
Name:
Title: City Attorney
[Acknowledgements next two pages.]
Signature Page to Assignment of Lease and Development Agreement
STATE OF WISCONSIN )
)ss
COUNTY OF }
Personally came before me this day of , 2014, the above-named Callan L.
Schultz, to me known to be the person who executed the foregoing instrument and acknowledged the
same.
*
Notary Public, State of Wisconsin
My Commission;
*Print Name
STATE OF WISCONSIN )
) ss
COUNTY OF DANE }
Personally came before me this day of , 2014, the above-named Timothy J.
Radelet, to me known to be the person who executed the foregoing instrument and acknowledged the
same.
Kathleen A. Kober
Notary Public, State of Wisconsin
My Commission expires: May 8, 2016
STATE OF WISCONSIN }
)ss
COUNTY OF WINNEBAGO }
Personally came before me this day of 2014, the above-named
to me known to be the person who executed the foregoing instrument and
acknowledged the same.
Y
Notary Public, State of Wisconsin
My Commission:
*Print Name
STATE OF WISCONSIN }
) ss
COUNTY OF WINNEBAGO )
Personally came before me this day of 2014, the above-named
to me known to be the person who executed the foregoing instrument and
acknowledged the same.
*
Notary Public, State of Wisconsin
My Commission:
*Print Name
Acknowledgements Page to Assignment of Lease and Development Agreement
STATE OF WISCONSIN )
) ss
COUNTY OF WINNEBAGO }
Personally came before me this day of 2014, the above-named
to me known to be the person who executed the foregoing instrument and
acknowledged the same.
t
Notary Public, State of Wisconsin
My Commission:
"Print Name
STATE OF WISCONSIN }
}ss
COUNTY OF WINNEBAGO }
Personally came before me this day of 2014, the above-named
, to me known to be the person who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My Commission:
`Print Name
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Acknowledgements Page to Assignment of lease and Development Agreement
EXHIBIT A
Legal Description
NEED
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A-9
EXHIBIT B
Copy of Development Agreement
See attached
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L7^�
EXHIBIT C
Copy of Lease Agreement
See attached
C-1
EXHIBIT D
Form of Memorandum of Assignment
See attached six (6) pages
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D-1
MEMORANDUM OF
ASSIGNMENT OF LEASE
AND DEVELOPMENT
AGREEMENT
Document Number
Document Title
Recording Area
Name and Return Address
Legal Services
Wisconsin Housing and Economic
Development Authority
P.O. Box 1728
Madison, WI 53701-1728
Parcel Identification Number(PIN)
See Exhibit A attached
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F
MEMORANDUM OF ASSIGNMENT OF LEASE AND DEVELOPMENT AGREEMENT
THIS MEMORANDUM OF ASSIGNMENT OF LEASE AND DEVELOPMENT AGREEMENT (the
"Memorandum") is made effective this day of , 2014, by and between MARION ROAD
APARTMENTS, LLC, a Wisconsin limited liability company ('Borrower"), WISCONSIN HOUSING AND
ECONOMIC DEVELOPMENT AUTHORITY, a Wisconsin public body corporate and politic ("Lender"),
the CITY OF OSHKOSH, a Wisconsin municipality, and the CITY OF OSHKOSH REDEVELOPMENT
AUTHORITY (collectively, the "City") by virtue of being the Landlord of the Property (collectively referred
to as"Parties") (individually as"Party").
The City is the owner of that property commonly known as Lot 2 of Project- South as part of the
Marion Road/Pearl Avenue Redevelopment Phase II Area and more particularly described as part of Lot
2 of Certified Survey Map 6408 in Exhibit A attached to this Assignment (the "Property"), which Certified
Survey Map 6408 was recorded with the Winnebago County Register of Deeds on October 5, 2009, as
Document Number 1520619, and is incorporated into this Assignment;
The City and Borrower have entered into a Development Agreement, dated December 19, 2013,
for the Property (the "Development Agreement"), and recorded on January 22, 2014 as Document
Number 1656792 in the Office of the Register of Deeds of Winnebago County, which, among other
things, governs aspects of the development of the Property;
The City and Borrower have entered into a Lease Agreement, dated December 19, 2013, for the
Property (the °Lease"), and recorded on February 10, 2014 as Document Number 1657712 in the Office
of the Register of Deeds of Winnebago County to allow Borrower to begin development and construction
on the Property;
Pursuant to an Assignment of Lease and Development Agreement (the "Assignment"), of even
date herewith, by and between the Parties, Borrower has assigned all right title and interest under the
Lease and the Development Agreement to Lender, and the City has consented to such assignment. I
Original copies of the Assignment are in possession of the Parties. The Assignment contains
other terms not herein set forth but which are incorporated by reference herein. This Memorandum is
executed for the purpose of placing parties dealing with the Property on notice of the existence of the
Assignment. Additional information concerning the terms of the Assignment can be obtained from the
Parties, at the following addresses:
Borrower: Marion Road Apartments, LLC
420 South Koeller Street, Suite 230
Oshkosh,Wisconsin 54902
City: City of Oshkosh
Attn: City Attorney
City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh,W 54903-1130
Lender: Wisconsin Housing and Economic Development Authority
Attn: General Counsel
201 West Washington Avenue, Suite 700
Madison, WI 53703-2727.
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This Memorandum is intended for recording purposes only, and does not modify, supersede, add
to, or change all or any of the terms of the Lease, the Development Agreement, or the Assignment in any
respect.
This Memorandum may be simultaneously executed in multiple counterparts, all of which shall
constitute one and the same instrument and each of which shall be deemed to be an original.
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IN WITNESS HEREOF, the parties have hereunto set their hands the day and year first above
written.
BORROWER: LENDER:
Marion Road Apartments, LLC, Wisconsin Housing and Economic
a Wisconsin limited liability company Development Authority
By: Northpointe Holdings, LLC,
a Wisconsin limited liability company By:
Sole Member Timothy J. Radelet
General Counsel
By:
Callan L. Schultz
Member
CITY:
City of Oshkosh Redevelopment Authority City of Oshkosh
By: By:
Name: Name:
Title: Executive Director Title: City Manager
By:
Name:
Title: City Clerk
By:
Name:
Title: City Attorney
[Acknowledgements next pages.]
Signature Page to Memorandum of Assignment of Lease and Development Agreement
STATE OF WISCONSIN )
) ss
COUNTY OF )
Personally came before me this day of , 2014, the above-named Callan L.
Schultz, to me known to be the person who executed the foregoing instrument and acknowledged the
same.
4
Notary Public, State of Wisconsin
My Commission:
*Print Name
STATE OF WISCONSIN )
) ss
COUNTY OF DANE )
Personally came before me this day of , 2014, the above-named Timothy J.
Radelet, to me known to be the person who executed the foregoing instrument and acknowledged the
same.
Kathleen A. Kober
Notary Public, State of Wisconsin
My Commission expires: May 8, 2016
STATE OF WISCONSIN )
) ss
COUNTY OF WINNEBAGO }
Personally came before me this day of 2014, the above-named
to me known to be the person who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My Commission:
*Print Name
STATE OF WISCONSIN )
) ss
COUNTY OF WINNEBAGO }
Personally came before me this day of 2014, the above-named
, to me known to be the person who executed the foregoing instrument and
acknowledged the same.
*
Notary Public, State of Wisconsin
My Commission:
*Print Name
Acknowledgements Page to Memorandum of Assignment of Lease and Development Agreement
STATE OF WISCONSIN )
) ss
COUNTY OF WINNEBAGO )
Personally came before me this day of , 2014, the above-named
, to me known to be the person who executed the foregoing instrument and
acknowledged the same.
}
Notary Public, State of Wisconsin i
My Commission:
"Print Name
STATE OF WISCONSIN }
)ss
COUNTY OF WINNEBAGO }
Personally came before me this day of , 2014, the above-named
, to me known to be the person who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My Commission:
*Print Name
This Instrument was drafted by:
Wisconsin Housing and Economic Development Authority
201 West Washington Avenue, Suite 700
P.O. Box 1728
Madison, Wisconsin 53701-1728
Acknowledgements Page to Memorandum of Assignment of lease and Development Agreement
EXHIBIT A
TO MEMORANDUM OF ASSIGNMENT OF LEASE
AND DEVELOPMENT AGREEMENT
Legal Description
NEED