MEMORANDUM OF UNDERSTANDING BETWEEN ROCKWELL DEVELOPMENT LLC AND OCONOMOWOC 1) The Memorandum of Understanding between Rockwell Development LLC and the City of Oconomowoc was entered into on or about July 17, 2012. The memorandum of understanding (MOU) is a document laying out prerequisites and conditions for the development of the Fowler Lake Project (“The Project”). The MOU states in at least three places that it is nonbinding: • RECITALS, PARAGRAPH E: The parties desire to enter into this Memorandum of Understanding for the purpose of establishing a non-binding summary of the basic elements of a transaction that, as the Developer’s plans for the Project progress, may subsequently be evidenced by a binding development agreement to be entered into by the parties. •UNDERSTANDING OF THE PARTIES, FIRST PARAGRAPH (First page, first line): “As noted in the Recitals, this Memorandum is a nonbinding agreement;…” •UNDERSTANDING OF THE PARTIES, FIRST PARAGRAPH, LAST SENTENCE (P. 1): “By execution of this Memorandum, neither party shall be obligated to proceed with any of the activities described herein.” By its very nature, the MOU is nonbinding. It does not have an offer, acceptance, consideration, or the intention to be legally bound. In short, an MOU is known as a “letter of intent.” It is not a development agreement or a contract of any sort. Even if Rockwell Development had expended a lot of money in preparation so they could move forward with the Project, that was their own risk. “One who deals with a municipality does so at his or her own risk.” Holzbauer v. Safway Steel Products, 2005 WI App. 240. SO, THE DEVELOPMENT COMPANY COULD NOT SUE THE CITY OF OCONOMOWOC FOR DECIDING NOT TO MOVE FORWARD. THEY DON’T EVEN HAVE TO RESCIND IT. THEY JUST HAVE TO *NOT* AGREE TO ANY DEVELOPMENT AGREEMENT. THE SIGNING OF A DEVELOPMENT AGREEMENT IS THE ONLY WAY TO MAKE THIS BINDING AND MAKE THE DEAL MOVE FORWARD. 2) CITY COUNCIL DUTIES They Mayor is not part of the City Council and may not be counted to determine if there is a quorum present to vote. The Mayor cannot vote unless it is to break a tie. §62.11, Wis. Stats. The council has the management and control of the City’s property and finances. It has the power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public 3) MAYORAL DUTIES The Mayor is able to enforce laws and ordinances and to ensure that all city officers and employees do their duties. §62.09(8), Wis. Stats. The Mayor can give information and he can recommend such measures that he deems advantageous to the city. The Mayor can VETO acts of the counsel. But he has to veto it with a list of objections within 5 days of the vote. §62.09(8)(c), Wis. Stats. The council needs a two-thirds vote to override a veto. THE BEST THE MAYOR COULD DO IS VETO THE RESCISSION OF THE MOU. HE COULD NOT FORCE THE COUNCIL TO CONTINUE TO A DEVELOPMENT AGREEMENT. IF KEN HERRO RECUSES HIMSELF, THEN YOU NEED 5 OF 7 COUNCIL MEMBERS TO OVERRIDE THE VETO. IF KEN HERRO VOTES, YOU NEED 6 OF 8 OF COUNCIL MEMBERS TO OVERRIDE THE VETO. 4) ROCKWELL DEVELOPMENT, LLC •This MOU is with Rockwell Development, who owes $71,387.50 to Continuum Architects & Planners, S.C. from a 2009 Waukesha County Case. (2009-CV-1242). •ROCKWELL DEVELOPMENT, LLC IS DEFUNCT AS ADMINISTRATIVELY DISSOLVED IN FEBRUARY 2012. •If there is another developer for this plan now, i.e., JEFF SEYMOUR, it is questionable if this MOU even applies to him. There is nothing in the agreement saying that the understanding goes to successor companies, officers, heirs, assigns, etc.
Posted on: Tue, 18 Nov 2014 17:24:17 +0000
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