HomeMy WebLinkAbout08. 15-356
JULY 28, 2015 15-356 RESOLUTION
(CARRIED___7-0_____LOST________LAID OVER________WITHDRAWN________)
PURPOSE: APPROVE DEVELOPER AGREEMENT, LEASE AGREEMENT,
ASSIGNMENT OF LEASE TO WHEDA; APPROVE LAND
DISPOSITION TO RIVERS PHASE II – OSHKOSH LLC;
APPROVE OPTION TO PURCHASE PARCEL J BY
NORTHPOINTE DEVELOPMENT CORPORATION- SOUTH SIDE
OF MARION ROAD
INITIATED BY: COMMUNITY DEVELOPMENT
REDEVELOPMENT AUTHORITY RECOMMENDATION: Approved
WHEREAS, The Rivers Phase II- Oshkosh LLC submitted a proposal for
construction of a planned multi-family development, on the south side of Marion Road
within the Marion/Pearl Redevelopment Area; and
WHEREAS, the City of Oshkosh (City) and Redevelopment Authority (RDA) will
remain the owner of the property during environmental remediation activities and
construction of the planned multi-family development requiring the City and RDA to
enter into lease agreements and assignments for the purpose of facilitating construction
and financing of the project during the period prior to completion of the environmental
remediation and transfer of the property to The Rivers Phase II- Oshkosh LLC; and
WHEREAS, the leases and assignments are consistent with the terms of the
Developer Agreement; and
WHEREAS, the City and Northpointe Development Corporation on November
11, 2014 entered into an Option to Purchase Parcel J; and
WHEREAS, both parties wish to mutually revoke this November 11, 2014 Option
in its entirety and enter into a new Option to Purchase with Northpointe Development
Corporation for Parcel J subject to terms within the attached Development Agreement.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper officials are hereby authorized and directed to enter into a
Developer Agreement with The Rivers Phase II- Oshkosh LLC for construction of a
planned multi-family development on the south side of Marion Road, in substantially the
same terms as attached hereto, any changes in the execution copy being deemed
approved by their respective signatures, and to carry out all actions necessary to
implement the Common Council’s obligations under the Developer Agreement.
JULY 28, 2015 15-356 RESOLUTION
CONT'D
BE IT FURTHER RESOLVED that the proper officials are hereby authorized and
directed to enter into appropriate leases, assignments, escrow agreements, cross
access agreement, and any and all other appropriate documents to facilitate
construction and financing of the planned multi-family development, and to carry out all
actions necessary to implement the City's and Redevelopment Authority's obligations
under the Developer Agreement.
BE IT FURTHER RESOLVED by the Common Council of the City of Oshkosh
that the proper officials are hereby authorized and directed to execute any and all
documents necessary to consummate the disposition of property on the south side of
Marion Road to The Rivers Phase II- Oshkosh LLC or affiliated entities upon
construction of the planned multi-family development, completion of environmental
remediation and receipt by the City of a Certificate of Completion from the Wisconsin
Department of Natural Resources.
OfHKOJH
ON THE WATER
TO: Honorable Mayor and Members of the Common Council
FROM: Allen Davis, Community Development Director
DATE: July 21, 2015
RE: Approve Development Agreement & Lease Agreement; Assignment of Lease to
WHEDA; Approve Land Disposition — Proposed Rivers II Development on the
South Side of Marion Road, Option to Purchase Parcel J, Marion and Jackson
BACKGROUND/ANALYSIS
The Common Council is being asked to approve the Development Agreement for a parcel of
land along the Fox River, part of the Marion Road Redevelopment Area. The parcel is also
located in TID #21. In the past, the RDA/City acquired the property, demolished the buildings
and remediated part of the site. The City has rebuilt the public-street and utilities serving the
parcel. The RDA/City also installed the riverwalk along the property. The parcel of land still
contains contaminated soil and poor soils for construction.
The Planned Development was submitted and the City Plan Commission and City Council
have approved the Planned Development.
The key elements of the Development Agreement are:
1. The City will use $420,000 in 2015 CIP funding to remediate the site as part of the
construction. The City's $120,000 cost for an environmental consultant is included in
the $420,000.
2. The City will use an additional $247,458 WEDC grant to pay for a portion of the
remediation and capping costs.
3. The developer will be responsible for over $300,000 in remediation costs.
4. The City will obtain the Certificate of Completion from the WisDNR upon completion of
the remediation.
5. The RDA and the City will convey the property for $1.
6. The Developer will build a 40-unit senior apartment building.
The Developer will spend about $5,900,000 in private funds on the construction.
The City will also cap the most contaminated portion of the site with park improvements.
The Lease Agreement is required for construction to begin on the property prior to
remediation and WisDNR issuing the Certificate of Completion. The Lease Assignment to
WHEDA is required due to the WHEDA financing of the project. The Lease will be
terminated upon WisDNR issuing the Certificate of Completion. The Land Disposition
would then convey the parcel.
The Developer has also requested the City extend an option for the parcel of land remaining to
the east at Jackson/Marion. The Developer has indicated they would then continue their
efforts in obtaining financing and design for a mixed use commercial/ multi-family residential
building.
The Development Agreement and all other pertinent documents were approved by the
Redevelopment Authority at its July 15th, 2015 meeting.
Fiscal Impact
The City will use $420,000 in 2015 CIP funding and an additional $247,458 in WEDC grant
funds for costs associated with remediation of the site.
Recommendation
The Council approves the development agreement and all necessary documents for the senior
housing project to proceed, as well as the extension of the Option to Purchase Parcel J at the
corner of Jackson Street and Marion Road.
Approved,
City Manager
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DEVELOPMENT AGREEMENT
This Development Agreement (the "A reement") is made as of the day of July,
2015 (the "Effective Date") by and between the CITY OF OSHKOSH, WISCONSIN, a
Wisconsin municipal corporation(the "City"), and THE RIVERS PHASE II—OSHKOSH, LLC,
a Wisconsin limited liability company(the "Developer").
RECITALS
A. The Developer is an Affiliate of Northpointe Development Corporation
(Northpointe). Northpointe received an Option to develop and purchase the Property described
herein according to the Development Agreement recorded with the Winnebago County Register
of Deeds on January 22, 2014, as Document Number 1656792. Northpointe assigns its Option
rights to the Developer, who in turn exercises this Option to develop the Property.
B. The Developer will lease certain Property located in the City of Oshkosh,
Wisconsin, from the City and from the City of Oshkosh Redevelopment Authority (the "RDA").
The leased Property is described on Exhibit A attached hereto (the "Pro er ") and is currently
leased by the City from the Redevelopment Authority beginning on or around June 1, 2006 (the
"Prime Lease
C. The Developer plans to construct on the Property a five story, 40 unit apartment
building with underground and surface parking pursuant to a plan approved by the Common
Council on December 9, 2014 through Resolution 14-541 (the "Project") and thereafter acquire
fee simple title to the Property following the completion of certain environmental remediation.
D. The Developer will develop and acquire the Property in accordance with the terms
of this Agreement.
E. The Developer's ability to proceed with this Project is contingent upon the City
providing financial and other environmental remediation assistance for the Property to be
developed pursuant to the terms set forth in this Agreement.
F. The City finds it to be in the public interest to utilize grants and other funding to
assist the Developer to undertake its Project in a manner that is consistent with the terms and
conditions of this Agreement.
G. The City finds that construction of the Project, and fulfillment of the terms and
conditions of this Development Agreement are vital and in the best interests of the City and its
residents and will fulfill a public purpose in accordance with state law.
THEREFORE, in consideration of the foregoing Recitals which are incorporated hereto
and made a part of this Agreement, the promises, covenants and agreements contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency of which are
acknowledged,the Developer and the City promise, covenant and agree as follows:
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July 8, 2015
I. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means any entity that, directly or indirectly, controls, is controlled by
or is under common control with a party to this Agreement or such parry's successors
and/or assigns. For purposes of this definition, "control" means possessing the power to
direct or cause the direction of the management and policies of tk entity by the
ownership of a majority of the voting securities of the entity.
"City" means the City of Oshkosh, Wisconsin, a Wisconsin municipal
corporation, its successors and assigns.
"City Contribution"means payments provided by the City to the Developer as set
forth in Section 2(b), below.
"Completion Date"means December 31, 2016,
"Default" means the occurrence of one or more of the events described in Section
17,below.
"Project" means the Developer's approved plan to construct a five story, 40 unit
apartment building with underground and surface parking on the Property as approved by
the Common Council on December 9, 2014 through Resolution 14-541, followed by the
Developer acquiring fee simple title to the Property upon the completion of certain
environmental remediation
"Project Costs" means the total costs of acquiring and constructing the Project,
including all capital expenditures (or expenditures that could be treated as capital
expenditures) and preliminary expenditures (such as architectural, engineering,
surveying, soil testing and similar costs that are incurred in connection with the
construction of the Project) and all other direct and indirect costs of development of the
Project in accordance with the Project Plans.
"Proieet Plans" means final detailed plans and specifications for the Project, and
all other improvements to be located on the Property.
"Property" means the parcel of land upon which the Project is located, as legally
described in Exhibit A.
"Term"means the period of time from the Effective Date of this Agreement to the
Expiration Date.
2. City Obligations.
(a) Initial Lease. The City shall lease the Property to Developer pursuant to a
Lease in the form attached hereto as Exhibit B (the "City Lease"), The term of the City
Lease shall begin on a mutually agreed upon date set forth in the City Lease, and end on
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July 8,2015
the date identified therein, or on the date upon which the City conveys the Property to
Developer pursuant to subsection (c), below.
(b) Environmental Remediation Assistance. Groundwater and soil
contamination identified in the Wisconsin Department of Natural Resources Case Nos.
02-71-282521 and 06-71-547885 remains present on the Property (the "Contamination").
Developer shall be responsible for the remediation of the Contamination to the extent
necessary to obtain a Certificate of Completion from the Wisconsin Department of
Natural Resources under its Voluntary Party Liability Exemption Program (a"Certificate
of Completion"). The City will provide Developer with a direct grant in the amount of
Four Hundred Twenty Thousand and No/100 ($420,000.00) (the "City Grant') to be
utilized by Developer solely for costs associated with remediating the Contamination on
the Property. The City shall also administer a grant for the benefit of the Property in the
amount of Two Hundred Forty Seven Thousand Four Hundred Fifty Eight and No/100
Dollars ($247,458.00) being provided by the Wisconsin Economic Development
Corporation (the "WEDC Grant"), which is also to be utilized solely for costs associated
with remediating the Contamination on the Property. The Developer is solely responsible
for all environmental remediation costs in excess of the City Grant and the WEDC Grant.
The City Grant and WEDC Grant shall be administered in accordance with the provisions
set forth in Section 6, below.
(c) Conveyance of Property to Developer. Following the issuance of a
Certificate of Completion relating to the Property's Contamination, then the
Redevelopment Authority will convey the Property to the City pursuant to Section 5.01
of the Prime Lease, and then the City will convey fee simple title to the Property to
Developer. Conveyances will be subject to all easements, covenants and restrictions of
record, municipal ordinances, taxes (if any) for the year in which the conveyance to
Developer occurs, and any restrictions imposed on the Property as a condition of the
Certificate of Completion(the"Permitted Encumbrances").
3: Conditions Precedent to City's Obligations. In addition to all other conditions
and requirements set forth in this Agreement, the obligations of the City hereunder (including,
without limitation, the obligation of the City to provide the City Contribution) are conditioned
upon the completion of each and every of the following conditions to the City's satisfaction:
(a) On or before the date of this Agreement, the Developer shall provide the
City an opinion of its counsel reasonably acceptable to the City stating, among other
things, that the persons executing this Agreement on behalf of the Developer are
authorized to do so, that the Developer has.duly authorized entry into this Agreement,
and other matters as are reasonably requested by the City.
(b) On or before the date of this Agreement, the Developer shall have
provided the City with (i) certified copies of its Articles of Organization and Operating
Agreement, and(ii) a current Certificate of Status issued by the Wisconsin Department of
Financial Institutions.
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July&,2015
(c) On the date of each payment made to Developer pursuant to Section 2(d),
above, 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.
(d) The City Common Council shall have approved a Capital Improvement
Program that includes full funding for the City Contribution identified in this Agreement.
Unless all conditions contained in this -Section 3 are satisfied within the time
period(s) described above that are allowed for the satisfaction of such conditions, or such
conditions are waived in writing by the City within the allowed time period(s), then the City may
at its option and at its sole discretion, terminate this Agreement. In the event this Agreement is
terminated, then no party to this Agreement shall have any further liability or other obligation to
the other parties.
4. Representations, Warranties of Developer. The Developer represents and
warrants to the City as follows:
(a) The Developer is a limited liability company duly organized by the State
of Wisconsin, is current with all administrative entity formation requirements of the
State, and has the power and all necessary licenses, permits, and franchises to own its
assets and properties and to carry on its business.
(b) The Developer is duly licensed or qualified to do business 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.
(c) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary limited liability company action of the Developer and
constitute the valid and binding obligations of the 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.
(d) The execution, delivery, and performance of the Developer's obligations
pursuant to this Agreement will not violate or conflict with the Developer's Articles of
Organization or Operating Agreement or any indenture, instrument or agreement by
which the Developer is bound, nor will the execution, delivery or performance of the
Developer's obligations pursuant to this Agreement violate or conflict with any law
applicable to the Developer or to the Project.
(e) There is no litigation or proceeding pending or affecting the Developer or
the Project, or, to the best of the Developer's knowledge, threatening the Developer or
the Project, that would adversely affect the Project or the Developer or the enforceability
of this Agreement, the ability of the Developer to complete the Project or the ability of
the Developer to perform its obligations under this Agreement.
(f) To the best of the Developer's knowledge, no default, or event which with
the giving of notice or lapse of time or both would be a default, exists under this
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July 8,2015
Agreement, and the Developer is not in default (beyond any applicable notice and cure
period) of any of its obligations under any other agreement or instrument to which the
Developer is party or obligor.
5. Covenants of Developer. During the Term of this Agreement, the Developer
covenants to the City as follows:
(a) The Developer shall pay for all work performed and materials furnished
for the Project as and when due.
(b) On or before the Completion Date, the Project shall be completed (subject
to matters of force inajeure), and in all other respects be ready for occupancy and use by
the Developer.
(c) The Developer shall conform and comply with, and will cause the Project
to be in conformance and compliance 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 all environmental laws,rules,regulations, and ordinances.
(d) The Developer shall cause the Project to be constructed in a good and
workmanlike manner and substantially in accordance with the Project Plans and will
promptly correct any defects, structural or otherwise, in any construction or deviations
from the Project Plans. Construction of the Project shall be completed free of all liens
and encumbrances except for those liens and encumbrances permitted by this Agreement.
(e) The Developer shall pay or cause to be paid prior to delinquency all
federal, state and local taxes in connection with the Project. The Developer shall pay
when due all operating expenses in connection with the Project.
(f) The Developer shall have in effect at all times, all permits, approvals and
licenses that may be required by any governmental authority or nongovernmental entity
in connection with the development, construction, management and operation of the
Project.
(g) Except for a mortgage against the Developer's leasehold interest, related
assignments of Leases and Rents and other collateral documentation in favor of Lender
securing the Loan, the Developer will not mortgage or otherwise place a lien or
encumbrance on the Property without first obtaining the City's consent.
(h) The Developer, at its cost and expense, shall operate, maintain, repair and
replace (including without limitation, repairs and replacements of a capital nature) all
elements of the Project. The Developer's maintenance and repair obligations shall
include both day to day maintenance and repair and extraordinary maintenance and repair
and shall include maintenance, repair and replacement of all elements or systems of the
Project as are necessary in order to maintain the Project. The Developer will not defer
any required maintenance, repair or replacement (including, without limitation, repairs
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July 8,2015
and replacements of a capital nature) of any element of the Project and shall establish
adequate reserves therefore.
(i) The Developer will not, without the City's consent, initiate any change in
the zoning classification of all or any portion of the Property.
6) The Developer shall comply with all requirements of the City Grant and
the WEDC Grant.
(k) The Developer shall be responsible for all costs of obtaining the
Certificate of Completion with respect to the Contamination in excess of the City Grant
and WEDC Grant.
b. Grant Administration.
(a) City Grant. The City shall deposit the City Grant into a mutually
approved escrow account on or before September 1, 2015. The City Grant shall be
utilized only for costs associated with remediating the Contamination, All expenditures
and requests to utilize the City Grant funds must be approved in writing by the City prior
to payment or release from the escrow account pursuant to the terms of a separate
disbursing agreement to be entered into by and among the Developer, the City and the
escrow agent (the "Disbursing Agreement"). The City will respond to any request for
approval of a payment within five (5) business days. All such approvals shall be at the
City's discretion. Use of the City Grant shall be for two purposes: (i) the amount of
$120,000 will be paid to AECOM to monitor and oversee the remediation efforts on the
City's behalf, and to advise the City on all issues related to the remediation efforts; and
(ii) the remaining amount will be spent on approved actual remediation efforts. The City
and/or the RDA will enter into an agreement with AECOM, and will submit requests for
payment for AECOM services to the escrow agent for payment up to $120,000. Amounts
owed AECOM for this project in excess of $120,000 shall be reimbursed by the
Developer to the City. The Developer shall be responsible for retaining all necessary
services and material necessary for remediation efforts, and shall be responsible for all
costs and amounts owed for remediation efforts in excess of the amount of the City
Grant.
(b) WEDC Grant. The City is responsible for administering the WEDC
Grant. The Developer agrees to comply with all WEDC requirements for the WEDC
Grant, and will hold the City harmless and indemnify the City for any violations of the
WEDC Grant's terms and conditions. This WEDC Grant is a reimbursable grant, and is
intended to pay for trucking and landfill tipping fees related to the remediation of the
Contamination. WEDC reimbursement may only be obtained after Developer has paid
for the costs for trucking and landfill tipping fees. Developer shall provide City with
documentation sufficient to allow reimbursement by WEDC. Regarding tipping fees
specifically, Developer is benefitting from the utilization of City and RDA tipping rates.
The City and its RDA will be billed for the Project's tipping fees, which will then be
passed along to the Developer for payment to the City. Payment shall be made upon
receipt. The City shall then pay the tipping fees and submit a request to WEDC for
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July 8,2015
reimbursement, The City will forward to Developer WEDC reimbursement funds upon
their receipt, subject to normal administrative processing. The City shall not authorize
any payments of City Grant funds pursuant to paragraph 6(a), above (other than payments
to AECOM), until Developer has paid in full all outstanding invoices for tipping and
related fees.
7. Damage,Destruction.
(a) In the event of fire, damage, or any other casualty to any part of the
Project, the Developer shall, at its cost and expense,to rebuild, repair and replace the
Project in the condition it was in immediately prior to the casualty and shall otherwise
complete the Project.
(b) If the Project is required to be rebuilt or repaired or replaced, then the
Project shall be rebuilt, repaired or replaced in accordance with plans and specifications
prepared by the Developer and approved by the City. The Developer agrees to apply any
necessary portion of the insurance proceeds to rebuild, repair and replace the Project.
The proceeds of insurance shall be disbursed for the replacement, rebuilding or repair of
the Project pursuant to the terms and conditions of a disbursing agreement among the
City, the Developer and the Title Company, similar in form and content to the Disbursing
Agreement entered into pursuant to Section 6, above, Any amount required in excess of
insurance proceeds for rebuilding, repair and/or replacement of the Project shall be paid
by the Developer.
S. Costs. The Developer shall each year during the Term of this Agreement pay all
reasonable and itemized fees, costs and expenses actually incurred by the City, including
administrative costs and attorneys' and consultants' fees required as a result of the Project, the
negotiation, preparation and administration of this Agreement and all documents and agreements
executed in connection therewith; provided, however, that for costs incurred after the first year,
the annual amount of such payment shall not exceed Five Thousand and No/100 Dollars
($5,000.00),which maximum amount will increase by one and one-half percent(1.5%) each year
during the Term. Developer shall also pay all reasonable and itemized fees, costs and expenses
actually incurred by the City, including attorneys'�and consultants' fees, in connection with the
enforcement of its rights against the Developer under this Agreement, including without
limitation, the enforcement of such rights in any bankruptcy, reorganization or insolvency
proceeding involving the Developer. Developer will be billed for such costs and payment is due
within 30 days of the date of invoice. Developer's obligation to pay these costs is secured by the
City's right of special assessment pursuant to Section 11(d), below.
9. City's Right to Cure Default. In case of a failure by the 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 effecting the Project, the City shall have the right, but shall not be
obligated, to effect such insurance or pay such fees, assessments, charges or taxes or take such
action as is necessary to remedy the failure of the Corporation to comply with the documents,
contracts or agreements effecting the Project, and, in that event, the cost thereof shall be payable
by the Developer to the City.
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July 8,2015
10. Real Estate Taxes and Assessments. The Developer shall pay timely to the City
generally applicable property taxes assessed and levied by the City on the Property under
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 property taxes. In
addition, the Developer agrees to pay timely to the City all special assessments that may be
assessed or levied in connection with the Property under the applicable special assessment laws,
rules, regulations, ordinances and rates in effect at the time said special assessments are assessed
or levied.
11. Minimum Assessment Guaranty.
(a) Conveyance to Third Parties. The Developer shall not sell, transfer or
convey the Property, any portion thereof or any improvements thereon, to any person or
entity unless such person or entity, for itself and its successors and assigns, agrees to be
bound by the terms of this Section 1 I to the same extent as the Developer.
(b) The Developer's obligations under Section S shall also be secured by the
City's right of special assessment or by any other remedy available to the City by statute.
In connection therewith, the Developer: (i) acknowledges that the City has incurred costs
for the payment or reimbursement of the Project Costs; (ii) agrees that the amount of the
special assessment, if levied consistent with this Agreement, constitutes a proper exercise
of the City's authority to levy special assessments in accordance with Wis. Stat.
§66.0701; (iii) agrees that the allocation of the City's costs to the Property is reasonable
and commensurate with the special benefits provided to the Property; (iv) agrees that the
amount being assessed in accordance with this Agreement does not exceed the value of
the benefits accruing to the Property from the City's expenditures identified herein; (v)
consents to the imposition and levy of such special assessments; (vi) agrees that the
approval of this Agreement by the Oshkosh Common Council shall be sufficient to
authorize the levy of special assessments in accordance herewith, and that no further
procedural steps need be taken by the City; (vii) waives all special assessment notices,
hearings and appeals provided by Wis. Stats. §66.0701 or §66.0703; and (viii)
acknowledges that the City is relying on the terms of this Agreement, and specifically the
terms of this subsection, that such reliance is reasonable, and that the City's payment of
its obligations to the Developer under this Agreement will be detrimental to the City if
the provisions relating to special assessments are not enforced and that a failure to
enforce such agreements would be inequitable.
12. Option to Purchase Nearby Property.
(a) The City and Northpointe Development Corporation (Northpointe) on
November 11, 2014 entered into an Option to Purchase certain City-owned property
identified as the "Southeast [sic] Corner of Marion Road and Jackson Street" whereby
Northpointe obtained the ability to purchase the property, more accurately described as
the Southwest Corner of Marion Road and Jackson Street(Option Property)by exercising
its Option to purchase it by complying with certain conditions. The parties wish to
mutually revoke this November 11, 2014 Option in its entirety and enter into a new
S
July 8,2015
Option to Purchase the same property subject to the terms within this Development
Agreement.
(b) Northpointe, an affiliate of Developer, shall have the Option to purchase
the property at the Southwest Corner of Marion Road and Jackson Street, and identified
as "Parcel J Option.to Purchase" on the map attached hereto as Exhibit D. This option
shall be exercisable by Northpointe giving written notice of its intention to exercise its
Option, along with the submission of a complete, formal proposal referenced in
paragraph 12.b., below, to the City on or before 11:59 p.m. on the third (3`d) anniversary
of the Effective Date. Upon receipt of Northpointe's Notice and formal proposal, the
appropriate City official is authorized to acknowledge receipt of the same. Upon
submitting its Notice and Proposal, Northpointe shall be obligated to purchase from the
City and the City shall be obligated to convey to Northpointe good and marketable fee
simple title to the Option Property for the price and upon the terms set forth herein.
(c) The purchase price for the Option Property shall be One Dollar ($1.00).
The terms of the Option include, but are not limited to:
i. The buyer and seller agreeing on a mutually acceptable
Development Agreement;
ii. Developer's Compliance with the approved Marion Road / Pearl
Avenue Redevelopment Area Phase II Development Guidelines;
iii. Developer must submit to the City a formal proposal within the
time-frame otherwise identified in this Option. The Formal proposal shall include
an application and scaled site plan detailing building elevations site plan for a
planned development;
iv. Approval of the final development plan by the Redevelopment
Authority and Common Council;
V. Developer must provide lending finance commitment; and,
vi. Obtain project approval under Planned Development Overlay
provisions.
(d) Northpointe acknowledges that the Option Property will be sold in "AS-
IS" condition, without any representations or warranties by the City whatsoever (except
for warranties of title), Title to the Option Property shall be conveyed to Northpointe free
and clear of all liens, claims and encumbrances, except municipal and zoning ordinances,
recorded easements, covenants and restrictions, general real estate taxes and assessments,
any matters which would be disclosed by an accurate survey of the Option Property, any
matters created by Developer, Northpointe, or their respective agents, and any other
matters of record except mortgages,judgments or other liens securing obligations of the
City. Northpointe shall be responsible for the premiums for any title insurance desired by
Northpointe.
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July 8,2015
(e) Northpointe's option to purchase the Option Property shall expire and be
null and void at the end of the three (3) year period noted herein.
13. Indemnifications.
(a) The Developer hereby indemnifies, defends and holds the City harmless
from and against all loss, liability, damage and expense, including reasonable attorneys'
fees, suffered or incurred by the City to the extent caused by the following: (a)the failure
of the 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 the
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 damages 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) claims arising on the Property
under the Americans with Disabilities Act, and any other laws, rules, regulations or
ordinances; (e) claims for third parties for injury to or death of any person on the
Property; and (f) the failure of the Developer to maintain, repair or replace as needed any
portion of the Project.
(b) The terns "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 waste," "hazardous materials," or "toxic substances" under any
applicable federal or state or local laws or regulations.
14. Insurance.
(a) The Developer shall maintain the following insurance policies issued by
insurers with a rating of at Ieast "A-" and in a financial size category of at least "X" as
established by A.M. Best Company and licensed to do business in the State of Wisconsin:
(i) property insurance on the Property with coverage limits equal to the full replacement
cost of the building and contents; (ii) commercial general liability insurance with limits
of $1,000,000 per occurrence and $5,000,000 in the aggregate; (iii) statutory worker's
compensation insurance; and (iv) automobile liability insurance with a combined single
limit of$1,000,000.
(b) Each insurance policy shall require the insurer to provide at least thirty
(30) days prior written notice to the City of any material change or cancellation of such
policy,
15. Nondiscrimination. The Developer shall not use the Project in any 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 the Developer shall
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July 8,2015
construct and operate the Project in compliance with all laws, rules, regulations and ordinances
relating to discrimination or any of the foregoing.
16. Default. The occurrence of any one or more of the following events shall
constitute a default hereunder:
(a) The Developer or any successor shall fail to pay when due any amount
due from it under this Agreement; or
(b) Any representation or warranty made by the Developer or any successor in
this Agreement or any document delivered by the Developer or its successor pursuant to
this Agreement shall prove to have been false in a material way as of the time made or
given; or
(c) The Developer or any successor shall breach or fail to substantially
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 the City to the Developer (or such longer period of time as is necessary to cure the
default as long as the Developer has commenced the cure of the default within the thirty
(30) day period and is diligently pursuing to cure the default and as long as the default is
cured not later than one hundred eighty (180) days following notice thereof from the
City); or
(d) The Project is not substantially completed on or before the Completion
Date (subject to matters offorce nrafeure); or
(e) The Developer shall: (i) become insolvent or generally not pay, or be
unable to pay, or admit in writing its inability to pay, its debts as they mature; or (ii)
make a general assignment for the benefit of creditors or to air agent authorized to
liquidate any substantial amount of its 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 in bankruptcy or any similar proceeding,
and such petition, application or proceeding shall remain undismissed for a period of
ninety (90) days or more, or the Developer shall file an answer to such a petition or
application, admitting material allegations thereof, or (v) apply to a court for the
appointment of a receiver or custodian for any of its assets or properties or have a
receiver or custodian appointed for any of its assets or properties, with or without
consent, and such receiver shall not be discharged within ninety (90) days after its
appointment; or(vi) adopt a plan of complete liquidation of its assets.
17. Remedies. Upon the occurrence of any default, without further notice, demand or
action by any kind by the City, the City may, at its option, pursue any one or more of the
following remedies concurrently or successively:
(a) Pursue any or all of the rights and remedies available to the City at law
and/or in equity against the Developer and/or the Project.
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July 8,2015
(b) Except as may be otherwise specifically set forth herein, no remedy herein
conferred upon the City 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 available to the City under any other covenants,
restrictions, documents or instruments, and/or now or hereafter existing at law or in
equity. No failure or delay on the part of the City 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, the City shall have no duty or
obligation whatsoever with respect to any of the matters so authorized.
18. No Personal Liability. Under no circumstances shall any council member,
official, director, attorney, employee, or agent of a party have any personal liability arising out of
this Agreement, and no party shall seek or claim any such personal liability.
19. City Authorization. The execution of this Agreement by the City is authorized by
Common Council Resolution No. dated July , 2015.
20. Miscellaneous.
(a) Except as otherwise specifically set forth herein, the respective rights and
liabilities of the City and the Developer in this Agreement are not assignable or
delegable, in whole or in part, without the prior written consent of the other party.
Provisions of this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
(b) No waiver, amendment, or variation of the terms of this Agreement shall
be valid unless in writing and signed by the City and the Developer, and then only to the
extent specifically set forth in writing.
(c) All material applicable agreements, representations, warranties, covenants,
liabilities and obligations made in this Agreement and in any document delivered
pursuant to this Agreement shall remain effective during the Term of this Agreement.
(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
or 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, air bill
prepaid, or (iii) upon transmission if by facsimile, any such communication or notice
shall be addressed as follows, unless and until any such party notifies the other in
accordance with this section of any change of address:
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July 8,2015
If to the City: City of Oshkosh
Attn: Director of Community Development
215.Church Avenue
Post Office Box 1130
Oshkosh, WI 54903-1130
Facsmile No. (920)236-5053
With a Copy to: Oshkosh City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI, 54903-1130
Facsimile No. (920) 2365106
If to the Developer: The Rivers Phase II—Oshkosh, LLC
230 Ohio Street, Suite 200
Oshkosh, WI 54902
Attn: Andrew Dumke
Facsimile No. (920)230-6484
With a copy to: Attorney Jason J. Hirschberg
Hirschberg Law, LLC
601 Oregon Street, Suite A
Oshkosh, WI 54902
Facsimile No: (920) 744-5780
(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 understandings other than
those expressly set forth in this Agreement and 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.
(f) This Agreement is intended solely for the benefit of the Developer and the
City, 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 in connection therewith. Without limiting the foregoing, no
approvals given pursuant to this Agreement by the Developer or the City, or any person
acting on behalf of either of them, shall be available for use by any contractor or other
person in any dispute with the construction of the Project.
(g) This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Wisconsin applicable to contracts made and
wholly performed within the State, with the venue of any dispute being Winnebago
County, Wisconsin.
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July 8,2015
(h) This Agreement may be executed in several counterparts. Each
counterpart shall be deemed an original, with each counterpart collectively constituting
but one in the same Agreement. Facsimile signatures shall be deemed original signatures
for all purposes of this Agreement.
(1) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be in effect to the extent of such prohibition
or enforceability without invalidating the remaining provisions of this Agreement in such
jurisdiction or affecting the validity or enforcement 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 Developer or between the City and any other person, or
cause the City to be responsible in any way for the debts or obligations of the Developer,
or any other person or cause the Developer to be responsible in any way for the debts or
obligations of the City or any other person. Each party represents, warrants and agrees,
for itself and its successors and assigns, not to make any assertion inconsistent with its
acknowledgement or with the acknowledgement 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 a party and its successors and permitted assigns, that is inconsistent with its
acknowledgement and agreement contained in the preceding sentence.
(k) Time is of the essence as to each and every obligation or agreement
contained in this Agreement.
(1) If any party is delayed or prevented from timely performing any act
required under this Agreement other than the payment of money, by reason of fire,
earthquake, war, terrorist act, flood, riot, strikes, labor disputes or shortages, government
restrictions, judicial order, public emergency, or other causes beyond the reasonable
control of the party obligated to perform, the 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) A memorandum of this Agreement may be recorded in the office of the
Register of Deeds of Winnebago County, Wisconsin, in lieu of the full Agreement. It is
understood by the parties that until Expiration Date, this Agreement will run with the
land and will be binding upon the Property.
(n) The Developer shall enter into a separate storm water management facility
operation and maintenance agreement with the City that will address storm water issues
related to the Property. In the event that storm water issues arise prior to the time this
storm water agreement is signed by the parties and recorded with the Register of Deeds,
then Developer shall fully comply with the grading and drainage plan for the Property on
file with the City Department of Public Works and all applicable storm water codes. The
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July 8,2015
City shall have the authority to enter the property and resolve all grading and drainage
issues at Developer's expense including, without limitation, special charges for such
work being placed against the Property. This Agreement inures to the benefit of the City
and its successors and assigns.
(o) The headings to 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 the Developer from compliance with all applicable laws, rules, regulations and
ordinances in addition to compliance with all the terms, conditions and covenants
contained in this Agreement.
(q) This Agreement is the product of negotiation between the parties hereto
and no tern, covenant or provision herein or the failure to include a tern, 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.
(r) Upon mutual consent of the parties to this Agreement, which consent any
party can withhold in its sole discretion, the parties can agree to submit disputes arising
under this Agreement to alternative dispute resolution.
(s) All amounts not paid when due hereunder shall bear interest at the rate of
twelve percent(12%).
22. Other Approvals. In addition to any approvals required under this Agreement, the
Developer shall be required to obtain all approvals, consents, and licenses as may be required by
any governmental or non-governmental authority in connection with the Project, including,
without limitation, all building permits, Project Plan approvals, storm water approvals, and
zoning approvals. The Developer's compliance with the terms of this Agreement shall not
relieve the Developer from complying with all applicable federal, state and local laws, rules,
regulations and ordinances in.connection with the Project and to the extent any governmental or
non-governmental entity imposes different or more restrictive conditions on the Developer or the
Project, compliance by the Developer with the terms of this Agreement shall not relieve the
Developer from complying with such different or more restrictive conditions. Likewise, any less
restrictive conditions imposed on the Developer or the Project by any governmental or non-
governmental authority shall not relieve the Developer or the Project from complying with all of
the teens and conditions of this Agreement.
[SIGNATURE PAGES FOLLOW]
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July 8,2015
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
CITY OF OSHKOSH, WISCONSIN
By:
Mark A. Rohloff
Its: City Manager
By:
Pamela R. Ubrig
Its: City Clerk
Approved as to form:
By:
Lynn A. Lorenson
Its: City Attorney
I hereby certify that the necessary provisions have been made to pay the liability which
will accrue under this Agreement.
Trena Larson, Finance Director
STATE OF WISCONSIN )
SS
COUNTY OF WINNEBAGO )
Personally came before me this day of , 2015, the above-named Mark A.
Rohloff and Pamela R. Ubrig, to me known to be the City Manager and City Clerk of the City of
Oshkosh, Wisconsin and the person who executed the foregoing document and acknowledged
the same.
X
Notary Public, State of
My commission:
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE]
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July 8,2015
THE RIVERS PHASE II—OSHKOSH, LLC
By:
Andrew J. Dumke, Managing Member
STATE OF WISCONSIN }
} SS
COUNTY OF WINNEBAGO }
On this day of 2015 personally came before me Andrew J.
Dumke, to me known to be the person who executed the foregoing instrument and acknowledged
the same.
Notary Public, State of Wisconsin
My commission expires:
NORTHPOINTE DEVELOPMENT CORPORATION(as
to Section 12 only)
By:
Its:
STATE OF WISCONSIN )
SS
COUNTY OF WINNEBAGO )
On this day of 2015 personally came before me
to me known to be person who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My Commission Expires:
17
July 8,2015
Exhibit A
Property Legal Description
Exhibit B
City Lease
Lease Agreement
Document Number Document Title
This LEASE AGREEMENT (the "Lease"), made and entered
into this day of July, 2015, is by and between the City of
Oshkosh, (CITY)a Wisconsin municipality,and the Redevelopment
Authority of the City of Oshkosh,(RDA),with their principal offices
located at 215 Church Ave., P.O. Box 1130, Oshkosh, Wisconsin
54903-1130, (collectively "Lessor") and The Rivers Phase II —
Oshkosh, LLC (Rivers II) 230 Ohio Street, Suite 200, Oshkosh,
Wisconsin 54902 ("Lessee"):
Recording Area
Name and Return Address
RECITALS C4 Attorney's Office
245 Church Ave. P.O. Box 1130
1. RDA owns real property within the Marion Road/Pearl Avenue Oshkosh,WI 54903-1130
Redevelopment Phase II Area(Project), in the City of Oshkosh, 0102220000
Winnebago County, Wisconsin.
Property Identification Number
2. The Project includes real property to be redeveloped both North of Marion Road ("Project—North") and
South of Marion Road("Project—South"). The property included in this Lease(Leased Premises)is within
Project—South, and in particular is apart of Lot 2 of Certified Survey Map 6408,which was recorded with
the Winnebago County Register of Deeds as Document Number 1520619 on October 5, 2009. A copy of
CSM 6408 is attached as Exhibit A and fully incorporated into this Lease.
3. RDA has leased its real property within the Project area to the CITY for the purpose of facilitating its
redevelopment.
4. Lessor and Lessee have entered into a Development Agreement("Agreement")dated July_,2015, and
recorded with the Winnebago County Register of Deeds as Document Number on July ,
2015, for the purpose of constructing a multi-family residential development on the Leased Premises. A
copy of the Agreement is not attached hereto but Lessee acknowledges that it read and signed the
Agreement,retains a copy of the Agreement,is familiar with it and agrees to be bound by its terms as it may
pertain to the development of the Leased Premises. A copy of the development footprint is attached at
Exhibit B and incorporated herein.
5. Environmental remediation is required to be performed on the Leased Premises and certain funding sources
for this environmental remediation require that Lessor retain ownership of the Leased Premises until
remediation is completed.
6. It is in both parties' interest that Lessee begin construction of its multi-family residential structure and
related improvements (Apartments) on the Leased Premises prior to the completion of the environmental
remediation, and the purpose of this Lease is to allow this commencement of construction.
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July 8, 2015
7. Lot 2 of CSM 6408 will be divided through a new CSM after the completion of the Apartment construction
as determined by the Lessor and the completion of the environmental remediation as detennined by the
appropriate state or federal agency. A draft of the future CSM is attached hereto as Exhibit C. The
Apartment development subject to the Agreement and to this Lease will be located on a portion of land
within Lot 2 of CSM 6408. Until the future CSM is filed, the actual location (Leased Premises) of this
Apartment development can only be described by a metes and bounds description which follows. It is
expected that the lot in the future CSM corresponding to the Leased Premises will be materially comprised
of the metes and-bounds description that follows: -
[Insert metes and bounds description]
S. The development of the Leased Premises described in the Agreement and in this Lease will be financed
through Choice Bank (Lender) and with a tax credit sale through the Wisconsin Housing and Economic
Development Authority (WHEDA). The Lender and/or WHEDA may request and may be granted an
interest in this Lease up to and including the right to purchase the Leased Premises from the Lessor in place
of Lessee. However, the assignment of any Lessee interest in the Leased Premises must be related to the
Apartments development and pursuant to the terms of the Agreement,must be contingent with such transfer
becoming effective in the event of a default by Lessee, and must be more fully described in separate
documents reasonably agreeable to the Lessor. All assignments, transfers, conveyances of the Leased
Premises will be subject to continuing obligations under the Agreement.
AGREEMENT
9. All Recitals are incorporated into this Agreement.
10. In exchange for one dollar($1.00)and other good and valuable consideration,the receipt and sufficiency of
which is hereby acknowledged, the Lessor agrees to lease to Lessee, and the Lessee agrees to accept such
lease, the property identified and described in this Lease (Leased Premises) on the terms and conditions
expressly set forth and referenced herein,
11. The term of this Lease shall commence on the date it is executed by all parties,and shall end on the earlier
of: (a)the date that is ninety-nine (99)years after the date of commencement of this Lease; (b) the date in
which Lessee, or a Project Lender as may otherwise be allowed under a lease assignment, closes on its
purchase of and acquires full ownership interest in the Leased Premises;or,(c)the Agreement is terminated.
12. This Lease shall terminate without notice upon the insolvency of Lessee,upon Lessee's seeking bankruptcy
protection, or upon any Lessee creditor other than Lender obtaining any interest in Lessee or Lessee's
property. Lessor may elect to terminate this lease based upon a material default of this Lease which remains
uncured after providing 30 days notice of such default.
13. Pursuant to the terms of the Agreement, Lessee is obligated to take certain remediation actions at the
direction of the Wisconsin Department of Natural Resources and others relating to existing hazardous
substances on the Leased Premises (Remediation). Lessee shall perform the Remediation pursuant to the
terms of the Agreement, the terms of any grants utilized for this purpose, and the teens required by the
Wisconsin Department of Natural Resources (WDNR). Lessee must take all necessary actions which will
result in a Certificate of Completion from the WDNR for the Leased Premises. Remediation of the site
cannot be completed until construction of the improvements on the Leased Premises is completed, and the
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July 8, 2015
Leased Premises cannot be conveyed by Lessor until the Remediation is complete and all applicable grants
used for Remediation are closed out. Lessee shall close on its purchase of the Leased Premises on the
earliest practical date after the later of the two following events: the issuance of the Certificate of
Completion; or,the closeout of the Remediation grants. It is expected that the grants will be closed out by
the Agencies within one hundred twenty(120)days after the issuance of the Certificate of Completion. All
parties agree that the timely expiration of this lease,and conveyance of the Leased Premises,is in everyone's
best interest and will work in good faith towards that end. Lessor shall convey the Leased Premises to
Lessee pursuant to this Lease and the Agreement.
14. There shall be no Lease payments due from Lessee to Lessor other than the payment identified in paragraph
number 10,above,except as may be required by this Lease or the Agreement during the term of this Lease.
15. The Lessee shall be allowed to construct and operate an apartment building and related improvements on the
Leased Premises as approved by Lessor pursuant to the terms of the Agreement and consistent with other
government rules and regulations. No agreements by Lessee with others which purport to allow the use of
the Leased Premises in a manner contrary to this Lease, or to the Agreement, shall be allowed,.or
enforceable, against Lessor or in rem against the Leased Premises.
16. During the term of this Lease,the Lessor shall be allowed reasonable access to the Leased Premises for any
purpose related to any municipal or police power function, to meet its obligations under this Lease or the
Agreement with The Rivers Phase 11 - Oshkosh, LLC, or to function in its capacity as the owner of the
Leased Premises; Lessor shall make all reasonable efforts to not materially disrupt Lessee's allowed use of
the property.
17. During the term of this Lease, Lessee shall be deemed the owner of all improvements constructed on the
Leased Premises by Lessee, subject to any legal rights of third parties. Lessor may take actions to gain
ownership of improvements upon the abandonment of the development and related interests by Lessee,
assignees, or others by providing known interested parties notice and a right to cure default or to affirm
interest in the Leased Premises.
18. The Lessee has had sufficient access to the Leased Premises and as a result is or should reasonably be aware
of all aspects related to its condition. The Lessor makes no express or implied promises or warranties related
to the condition of the Leased Premises except those identified in the Agreement,as Amended and Restated.
19. Lessee assumes full and complete responsibility for any development activities,fixtures,or improvements to
the Leased Premises prior to the date Lessee purchases the Leased Premises pursuant to this Lease.
20. Lessee acknowledges that it assumes the responsibility of ensuring that its investments in or on the Leased
Premises are protected through separate agreements with its Lenders or other measures allowed by law.
21. Lessee shall have all necessary insurance with sufficient limits which will cover its employees,actions and
property on the Leased Premises. Lessee shall hold the Lessor harmless from any accident or incident
involving Lessee,its employees or agents,or any dispute with The Rivers Phase If-Oshkosh,LLC or any 3rd
party resulting from any action of Lessee, its agents or assigns, occurring during the term of this Lease.
22. The Lessee is responsible for paying all utilities,costs,expenses,and obligations of any kind incurred during
the term of this Lease. The Lessee is further required, at its expense,to keep and maintain in good order,
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July 8, 2015
condition, and repair the Leased Premises and all improvements constructed thereon.
23. Lessee shall not allow any encumbrance to be filed on or against the Leased Premises,including mortgages,
easements, or similar restrictions.
24. All terms of the Agreement pertaining to the Leased Premises are incorporated into this Lease,including but
not limited to representations and warranties. Lessor may pursue any breach or default of this Lease or of the
Agreement as allowed by law.
25. Lessee's restrictions on the use of the Leased Premises during the terms of this Lease are set forth in the
Agreement,and are specifically incorporated into this Lease. All other terms,conditions,benefits,burdens,
and agreements between these parties relating to the Leased Premises shall remain in full force and effect,
without alteration,with the exception of any terms that prevent the Lessee from constructing and operating
the approved apartment complex prior to taking ownership of the Leased Premises; and,
SIGNATURE PAGE TO FOLLOW
4
July 8, 2015
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
LESSEE: LESSOR:
The Rivers Phase II-Oshkosh, LLC City of Oshkosh
A Wisconsin Limited Liability Company
By: The Rivers Phase II—Oshkosh—MM, LLC Mark A. Rohloff, City Manager
A Wisconsin Limited Liability Company,
It's Manager By:
Pamela R. Ubrig, City Clerk
By: Northpointe Development Corporation
A Wisconsin Corporation,
It's Sole Member Oshkosh Redevelopment Authority
By:
Callan L. Schultz, President Steve J. Cummings, Chair
H. Allen Davis, Executive Director
This document drafted by:
David J.Yraska
Assistant City Attorney
Oshkosh,Wisconsin 54903
5
July 8, 2015
ASSIGNMENT OF LEASE AND DEVELOPMENT AGREEMENT
THIS ASSIGNMENT OF LEASE AND DEVELOPMENT AGREEMENT (the
"Assignment") is made effective this day of ,2015, by and between THE RIVERS
PHASE II—OSHKOSH, LLC, a Wisconsin limited liability company (`Borrower"), CHOICE
BANK, a Bank Chartered by the State of Wisconsin, ("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 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;
WHEREAS, the City and Borrower have entered into a Development Agreement, dated
2015, 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
, 2015, 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
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July 8,2015
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 Borrower's
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 -these 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.
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July 8,2015
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 Agre,ements. 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.
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.
S. 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
4
July 8,2015
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. Governing 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
5
July&,2015
defined in the Development Agreement) arising, 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.
(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 Iiens 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. Control over Casualty and Condemnation Proceeds.
(a) 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.
(b) In the event of condemnation, control over any condemnation proceeds granted to
the City 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 Loam 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,
6
July 8,2015
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 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: Choice Batik
Attn: Commercial Lending Dept.
2450 Witzel Avenue
Oshkosh, WI 54904
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.
[REMAINDER OF PAGE LEFT-INTENTIONALLYBLANK;
SIGNATURE PAGE FOLLOWS]
7
July 8,2015
EACH PARTY ACKNOWLEDGES THAT THEY HAVE CAREFULLY READ
AND FULLY UNDERSTAND ALL OF THE PROVISIONS OF THIS ASSIGNMENT.
IN WITNESS HEREOF, the parties have hereunto set their hands the day and year first
above written.
BORROWER: LENDER:
The Rivers Phase II - Oshkosh,LLC, Choice Bank
a Wisconsin limited liability company
By: The Rivers Phase II—Oshkosh MM,
LLC, A Wisconsin limited liability By:
Company, Its Manager Signature
By: Northpointe Holdings Corp., Print name, title
A Wisconsin Corporation,
Its Sole Member
By:
Callan L. Schultz
President
CITY:
City of Oshkosh Redevelopment Authority City of Oshkosh
By: By:
H. Allen Davis, Executive Director Mark A. Rohloff, City Manager
By: By:
Steve J. Cummings, Chair Pamela R. Ubig, City Clerk
Approved as to Form:
By:
Lynn A. Lorenson, City Attorney
[Aelmou,ledgentents next hi,o pages.]
8
July 8,2015
STATE OF WISCONSIN )
) ss
COUNTY OF )
Personally came before me this day of , 2015, the above-named Callan
L. Schultz, to me known to be the person who executed the foregoing instrument and
acknowledged the same.
fC
Notary Public, State of Wisconsin
My Commission expires:
*Print Name
STATE OF WISCONSIN }
ss
COUNTY OF DANE )
Personally came before me this day of , 2015, the above-named Mark A.
Rohloff, to me known to be the person who executed the foregoing instrument and acknowledged
the same.
Notary Public, State of Wisconsin
My Commission expires:
STATE OF WISCONSIN )
ss
COUNTY OF WINNEBAGO )
Personally came before me this day of , 2015, the above-named Pamela
R. Ubrig, to me known to be the person who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My Commission expires:
*Print Name
9
July 8,2015
STATE OF WISCONSIN }
} ss
COUNTY OF WINNEBAGO }
Personally came before me this day of , 2015, the above-named H.
Allen Davis, to me known to be the person who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My Commission expires:
*Print Name
STATE OF WISCONSIN }
} ss
COUNTY OF WINNEBAGO }
Personally came before me this day of , 2015, the above-named Steve J.
Cummings, to me known to be the person who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My Commission expires:
*Print Name
10
July 8,2015
10. Upon further division of the City Property through a future Certified Survey May,this cross access
Easement will apply to the description/location of Phase 11 as identified in the future CSM and shall
supersede the property identified in the legal description in paragraph number 8,above.
11. The City's approval of the Phase It development included a requirement its outdoor parking lot be
connected to The Rivers'parking lot to assist with access to/from public streets,and with proper
vehicular circulation through both developments. Those using The Rivers property and the Phase II
portion of the City Property shall have full access to the other property's ingress/egress,driveways and
drive aisles which will provide a common benefit to both.
12. The terms,conditions,and Covenants identified in this Easement shall attach to The Rivers property
and to the Phase II portion of the City Property as described in this Easement,and in the future
Certified Survey Map which will identify the final boundaries of the Phase lI area of the City Property.
Each of the Properties subject to this Easement will receive benefits and burdens from the terms of this
Easement.
13. The Cross Access Easement described in this document is non-exclusive and perpetual for the
purposes of circulation within the subject properties,and the ingress and egress between the properties
and adjacent public streets.
14. Maintenance Common Access Facilities
a. Each owner of property subject to this Easement agrees with,authorizes,consents to, and agrees to
be responsible for the costs of the maintenance,repair,and replacement of improvements within
the areas of common access within their respective properties. The areas of common access for all
applicable properties are the driveways and drive aisles within the outdoor parking lots of each
Property.
K Each owner's responsibilities may require,at various times and without limitation,the costs of
inspections,surveying,engineering,acquiring permits,legal consultations,recording fees,costs
for the construction,reconstruction,and.repairs, including any paving,re-striping, and removal of
snow/ice and debris when necessary.
c. Maintenance is to be interpreted broadly to include all work necessary to ensure that the
improvements within all areas of common access remain in a good,clean,safe,and serviceable
condition at all times,and includes the prompt removal of snow and ice.
d. The owners of each property are expected to cooperate with each other regarding the
improvements and facilities in the area of common access within their property in the
maintenance,repair,replacement,and snow/ice and debris removal. Each property owner
authorizes and grants to the other property owner the right to enter the areas of common access
and take all necessary steps to ensure that any work necessary is completed in a timely, efficient,
and reasonable manner. The costs of such action shall be the responsibility of the property owner
failing to perform its required common functions. The entrance and performance of work on
another's property must be related to a purpose related to this Easement, and shall not materially
interrupt the use of the property unless no other reasonable alternative exists. Reasonable notice
shall be provided prior to undertaking action subject to this Easement. In the event a property
owner fails or refuses to act within a reasonable time,the remaining property owner(s)may also
seek any available legal remedy to enforce the terms of this Easement.
e. Property owners shall make available all paperwork relating to maintenance,repair,replacement,
snow/ice removal,and other work performed that is the subject of an invoice as allowed by this
Easement. Those requesting copies shall be responsible for reasonable costs of copying.
July 8, 2015 2
f. Snow and ice shall be removed from the cross access Easement areas in a timely and reasonable
manner. Snow and ice may be removed to areas within the property provided the property owner
consents,the snow storage does not interfere with the use of the cross access easement area,and
the storage does not violate any state or local rules. If snow storage areas are not available,then
the snow shall be removed from the Property.
I5. Each property owner is responsible for any damage to the cross access easement areas caused by the
negligent or willful acts of such property owner or others exercising the easement rights granted to
such owner,including without limitation,damage,caused by persons or vehicles using these areas of
common interest. All such damage shall be promptly repaired by the responsible property owner
without charge to the other property owners.
16. Each property owner shall secure and at all times maintain a policy of public liability insurance with an
aggregate policy limit of not less than one million and no/100 dollars($1,000,000.00)providing
primary liability coverage for the owner's portion of the areas of common interest and the owner's use
of the areas of common interest.
17. Each Lot owner shall exercise the rights granted in this Easement in a reasonable manner and avoid
any unnecessary interference with the use of the Areas of Common Access by the other property
owners,or tenants, customers,or other guests or invitees of other property owners. The owner of each
property shall be obligated to take such actions as may be reasonable necessary to prevent the parking
of vehicles or the placement of other temporary or permanent obstructions in the areas of common
access.
18. No property owner shall cause or permit the construction or installation of any structures or
improvement that would have a material adverse effect on the use of the areas of common access.
19. This Easement may require amendment(s)and modification(s)based upon the City-approved future
development of the properties,and/or the change in local,state,or federal laws. All property owners
agree to sign all amendments necessary to carryout the approved plans and/or changes in local,state,or
federal laws. This Easement may also be modified or amended for reasons not involving the future
development of the any property upon the written consent of all property owners and the City of
Oshkosh and the amendments prompt recording with the Winnebago County Register of Deeds.
20. The terms,conditions,and covenants of his Easement,shall be perpetual in terra and shall run with the
land and be binding upon and inure to the benefit of the owners of The Rivers and the Rivers Phase lI
portion of the City Property,and their respective successors,transferees and assigns.
21. This Easement shall be interpreted according to Wisconsin Law. Venue of any dispute regarding this
Easement shall be Winnebago County,Wisconsin or in a federal court district serving Winnebago
County,Wisconsin.
SIGNATURE PAGE FOLLOWS
This instrument drafted by:
Attomey David J.Praska
Oshkosh,WI 54903-1130
July 8, 2015 3
This Easement is being executed on the day and year first written above.
CITY OF OSHKOSH
Owner of the City Property
By:
Mark A.Rohloff,City Manager
By:
Pamela R.Ubrig,City Clerk
The signature of Mark A. Rohloff authenticated this day of ,2015.
The signature of Pamela R.Ubrig authenticated this day of ,2015.
RIVERFRONT SENIOR APARTMENTS,LLC
Owner of The Rivers
By:
Andrew J.Dumke,Managing Member
The signature of Andrew J.Dumke authenticated this day of ,2015.
July 8,2015 4