HomeMy WebLinkAbout19-24 Merge REDEVELOPMENT AUTHORITY OF THE CITY OF OSHKOSH,WISCONSIN
AUGUST 13, 2019 19-24 RESOLUTION
(CARRIED LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE DEVELOPMENT AGREEMENT WITH MERGE, LLC
FOR REDEVELOPMENT OF PARCELS H. I AND J WITHIN THE
MARION ROAD REDEVELOPMENT AREA
WHEREAS, a Development Agreement must be approved by City Council to
implement TIF #36 Project Plan, approved by Council on June 11, 2019; and
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment of the City of
Oshkosh that the proper City officials are hereby authorized and directed to enter into a
Developer Agreement with Merge, LLC for redevelopment of Parcels H, I and J within
Marion Road Redevelopment area, per the attached, 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 City's
obligations under the Developer Agreement.
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Oshkosh
TO: Redevelopment Authority
FROM: Allen Davis, Director of Community Development
Lynn A. Lorenson, City Attorney
DATE: August 8, 2019
RE: Approve Development Agreement with Merge,LLC for Redevelopment of Parcels
H, I And J within the Marion Road Redevelopment Area
BACKGROUND
Council approved creation of TIF District #36 — Merge Redevelopment Project on June 11, 2019
related to the proposed redevelopment of 3 parcels within the Marion Road/Jackson Street area.
The District was created with the purpose of providing incentives needed to facilitate the
development of a mixed-use project consisting of 240 residential units and approximately 39,000
square feet of commercial space along with parking and amenities.
ANALYSIS
The Development Agreement provides for paygo financing to the Developer equal to 25% of
Project Costs as an incentive to purchase the property and complete the redevelopment project.
Without this incentive the cash return on the investment in this property is too low to attract
investment capital and development is unlikely to occur or to occur in the manner proposed. A
copy of the proposed Development Agreement is attached. The main provisions of the
Development Agreement include:
• Provision for the development of the property in 3 phases with the initial phase beginning
construction on or before June 30, 2020 and completion of all 3 phases on or before
December 31, 2023
• Payment of 90% of the available tax increment from the property through paygo
financing to a maximum principal amount equal to 25% of the total project costs
expended by the Developer; no interest will accrue on the principal due
City Hall,215 Church Avenue P.O.Box 1130 Oshkosh,WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
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Oshkosh
• A lookback clause in year 10 of the Agreement allowing the City to review the actual IRR
and adjust the City Contribution should the project achieve a 15% annual IRR over the
payment term
• Payment of the full amount to the Developer is anticipated to occur in 2038 (The TIF
District could remain open through 2047 to allow for additional public projects if desired)
• During the term of the Development Agreement the Developer agrees to provide the City
an annual report setting forth general rental amounts as well as information pertaining
to occupancy and vacancy
• Provisions related to existing environmental conditions on the property which will be
addressed by Merge during project construction, including appropriate liability
protections for the City
• Provisions requiring Merge to be retained as the manager of the property during the term
of the Agreement or approval of assignments of the Agreement to non-affiliated entities
FISCAL IMPACT
Approval of the Development Agreement for the Merge Redevelopment will have no fiscal
impact on the provision of city services relative to the ability to service the development nor
require the expansion of city services to service the development. The 10% of increment not
paid to the developer will be used to pay for the City's annual TIF administrative costs. As in
all pay-go cases, the financial incentive will only be paid if tax increment is created and after all
property taxes and other special charges and/or assessments have been paid.
RECOMMENDATION
Staff recommends that the RDA adopt the proposed resolution and approve the Development
Agreement.
Respectfully Submitted,
H. Allen Davis
Director of Community Development
City Hall,215 Church Avenue P.O.Box 1130 Oshkosh,WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
TAX INCREMENTAL DISTRICT NO. 36
DEVELOPMENT AGREEMENT
(MERGE REDEVELOPMENT PROJECT)
This Development Agreement (the "Agreement") is made this day of August, 2019
(the "Effective Date"), by and among the CITY OF OSHKOSH, WISCONSIN, a Wisconsin
municipal corporation, the REDEVELOPMENT AUTHORITY OF THE CITY OF OSHKOSH,
WISCONSIN (the "RDA," and, collectively with the City of Oshkosh, Wisconsin, the "City"),
MERGE, LLC, an Iowa limited liability company, doing business as Merge Urban Development
Group ("Merge"), and MARION ROAD REDEVELOPMENT LLC, a Delaware limited liability
company (the"Developer").
RECITALS
WHEREAS, the City has established Tax Incremental District No. 36 (the "District") as a
7.232 acre blighted area district in which at least fifty percent (50%) of the property within the
District is a blighted area, as that term is defined by Wis. Stat. Sec. 66.1105(2)(ae), and in which
certain costs incurred for redevelopment of the District may be reimbursed from the property tax
increment as provided by State law; and
WHEREAS, the Developer, an Affiliate of Merge, is acquiring from the RDA three (3)
parcels of real property located within the District, which parcels are identified as "Parcel H,"
"Parcel I," and"Parcel T' on the site plans attached hereto as Exhibit A, and are legally described
on Exhibit B attached hereto (the "Property"); and
WHEREAS, Merge has approached the City indicating a desire to develop and construct
on the Property, in up to three (3) phases, a mixed-use project consisting of approximately 240
residential units and approximately 39,000 square feet of commercial space,together with parking
lots, other infrastructure, and site improvements, all in accordance with applicable City ordinances
and City-approved plans (the "Pro'ect"); and
WHEREAS, to promote such development, the City created the District to assist in the
financing of the costs of certain improvements,development incentives, and other costs associated
with the ownership and development of the Project; and
WHEREAS, Merge and Developer will not undertake the development of the Project but
for their reliance upon receiving tax increment financing to assist in the funding of a portion of
Developer's acquisition, development and operation costs for the Property, all as described below;
and
WHEREAS, the City is authorized to enter into contracts necessary and convenient to
implement the purpose of a Tax Incremental District,including the ability to provide development
incentives and cash grants to owners,lessees, or developers of land located within the District; and
WHEREAS, the uses of the Property contemplated by this Agreement are necessary and
desirable to serve the interests of the City and its residents by expanding the tax base of the City,
providing additional development opportunities, and providing a financing mechanism to make
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certain public improvements, all consistent with the purpose of a Tax Incremental District under
Section 66.1105, Wisconsin Statutes; and
WHEREAS, based upon the City's desire to redevelop the District and to obtain the
economic benefits to be generated from the Project,the City is willing to enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing recitals, the terms and conditions
contained in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
I. DEFINITIONS. For purposes of this Agreement, the following terms shall have
the following meanings:
A. Agreement. "Agreement" means this document and all of its component
parts and exhibits.
B. Affiliate. "Affiliate" means any entity majority owned and controlled by,
in control of, or under common control with Merge, Skydeck, LLC, an Illinois limited liability
company ("Ski"), or any entity of which Merge or Skydeck is a subsidiary or which is a
shareholder or member of Merge or Skydeck.
C. Available Tax Increment. "Available Tax Increment" means an amount
equal to ninety percent (90%) of the annual gross Tax Increment revenues actually received and
retained by the City which are generated by the Property and improvements located thereon in the
immediately preceding calendar year,plus any PILOT amounts paid thereon.
D. Case Closure. "Case Closure"has the meaning set forth in Wis. Stat. Sec.
292.12.
E. City Contribution. "City Contribution" means payments to be provided
from the City to the Developer from Available Tax Increment pursuant to the terms of this
Agreement, in a total principal amount not to exceed twenty five percent(25%) of Project Costs.
F. City MRO. "City MRO" means the Municipal Revenue Obligation issued
by the City to the Developer as evidence of the City's limited obligation to pay the City
Contribution as described in Section IV.A. below, and in substantially the form of Exhibit D
attached hereto and incorporated herein. The City MRO shall be issued pursuant to Section
66.0621 of the Wisconsin Statutes, shall not constitute an indebtedness of the City, and shall be
payable, subject to contingencies, solely from the limited sources and to the extent provided in this
Agreement and the City MRO.
G. District. "District" means all of the property included in Tax Incremental
Finance District No. 36 as described in the Project Plan.
H. Existing Environmental Conditions. "Existing Environmental Conditions"
means the following occurrences of Hazardous Substances on the Property:
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BRRTS# 02-71-556287 (Parcel H — Statewide Fill (LGU)). Closed
Environmental Repair Program(ERP) site with continuing obligations.
BRRTS# 02-71-525307 (Marion/Pearl Redevelopment Area). Open ERP
site.
BRRTS#02-71-549843 (Murphy Concrete—SE Corner Naph). Open ERP
site.
I. Hazardous Substances. "Hazardous Substances" means toxic, hazardous,
and/or regulated substances, pollutants, or contaminants, whether present in the soil or
groundwater at, under, or migrating from or to the Property.
J. Payment Dates. "Payment Dates" means November 1 of each year,
commencing on the third November 1 after the Effective Date of this Agreement, up to and
including November 1, 2047.
K. Payment Term. "Payment Term"means the term commencing on the first
day of the third November after the Effective Date and continuing on each Payment Date thereafter
until the first to occur of the following: (i)payment to Developer of the entire amount of the City
Contribution, or(ii)November 1, 2047.
L. Project Plan. "Project Plan" means the "Project Plan for the Creation of
Tax Incremental Finance District No. 36 (Merge Redevelopment Project)in the City of Oshkosh"
prepared by Ehlers, Inc. dated June 11, 2019.
M. Project Costs. "Project Costs" means the total of all hard costs and soft
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, environmental studies, surveying, soil testing,attorneys' fees and expenses,expenses
related to obtaining Case Closures for each Existing Environmental Condition (as required under
Section V.A. below) 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. Developer's initial
estimate of Project Costs is attached hereto as Exhibit C.
N. Tax Increment. "Tax Increment" has the same meaning as defined in
Section 66.1105(2)(i) of the Wisconsin Statutes.
O. Tax Increment Law. "Tax Increment Law" means Section 66.1105 of the
Wisconsin Statutes.
II. PROPERTY ACQUISITION CONTINGENCY. The effectiveness of this
Agreement is contingent upon the Developer acquiring the Property from the RDA on or before
December 31, 2019. In the event that the Developer elects not to purchase the Property or is
otherwise unable to timely satisfy this contingency on or before such date, this Agreement shall
be null and void and the parties shall have no further rights or obligations hereunder.
III. DEVELOPER'S OBLIGATIONS.
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A. Project Construction. Developer shall commence construction of at least
one (1) phase of the Project no later than June 30, 2020. Subject to the terms and conditions set
forth in this Agreement, construction of a second phase shall commence no later than April 30,
2021. Subject to the terms and conditions set forth in this Agreement, construction of the third
phase shall commence no later than November 1, 2021. Developer shall diligently pursue
completion of construction of the Project in accordance with applicable City ordinances and City-
approved plans for the Property so that, subject to the terms and conditions set forth in this
Agreement, construction of all three (3) phases of the Project shall be substantially completed by
December 31, 2023 (the "Completion Date"). With respect to the development of the Project
under this Section III.A., Developer agrees that it shall expend Project Costs in an amount of not
less than $30,000.000.00 ("Minimum Project Costs"). Developer's obligations to commence and
complete construction under this Section M.A. are subject to (i) Developer's timely receipt of all
approvals, licenses and permits necessary or appropriate in connection with Developer's
development of the Project, and (ii) Developer's receipt of Case Closure or post-closure
modification, as applicable, with respect to each parcel of Property in a reasonable period of time
to facilitate the commencement and completion of construction on such parcel under the terms of
this Section 11I.A. For purposes hereof, "commencement of construction" shall mean the start of
site improvements such as site grading or clearing and fencing and "substantially complete" shall
mean the issuance of a certificate of occupancy, including a temporary certificate of occupancy.
B. Costs and Ex ep nses. The Developer shall be responsible for all costs related
to the Project and any other work to be performed by the Developer under this Agreement,
including all engineering, inspections, materials, labor, on-site management of Hazardous
Substances (subject to Article V below), all costs of obtaining Case Closures with respect to those
Existing Environmental Conditions which are open ERP sites (subject to Article V, below), all
costs of obtaining any required post-closure modifications with respect to those Existing
Environmental Conditions which are closed ERP sites(subject to Article V,below),and otherwise
complying with all continuing obligations associated with those Existing Environmental
Conditions for which Case Closures have been received. Furthermore, Developer shall be
responsible for payment of all City fees including building permit fees, zoning and sign permit
fees, electrical and plumbing fees.
C. Submission and Verification of Project Cost Information. The Developer
shall submit evidence of all Project Costs which it intends to serve as the basis for the City
Contribution to the City promptly following the completion of each phase of the Project. Each
submission shall be on the form attached hereto as Exhibit G and shall include evidence of payment
of all invoices, together with copies of lien waivers from each contractor or other payee having
lien rights. All such Project Costs shall be subject to verification by the City.
D. Submission of Rental Information. During the term of this Agreement,
Developer shall provide a report to the City on an annual basis, setting forth the amount of rent
collected during the preceding calendar year, organized by rent range of the apartments,as well as
a report setting forth the total number of units rented and vacant during each month of the
preceding year, also organized by rent range.
IV. CITY CONTRIBUTION AND OBLIGATIONS.
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A. City Contribution. In each year beginning in 2021 and ending in 2047 (or,
if earlier, when the total amount of the City Contribution has been reimbursed to Developer under
this Agreement), in consideration of the Developer undertaking its obligations under this
Agreement,the Available Tax Increment shall be applied to make payments under this Agreement
to pay the Developer the City Contribution. The City Contribution constitutes eligible Project
Costs within the meaning of Section 66.1105(2)of the Wisconsin Statutes. The first payment shall
not be made until the first day of the third November after the date of this Agreement provided
that there is Available Tax Increment. Such payments shall be made in accordance with the terms
of this Agreement, as further described in this Section IV.A. and the City MRO. The City
Contribution shall be paid by the City only out of Available Tax Increment, subject to the
provisions of this Agreement and the City MRO. The City Contribution is a special and limited
obligation of the City, and not a general obligation of the City.
The City MRO shall be issued upon the issuance by the City of a certificate
of occupancy for the first building or phase of the Project completed by Developer, in an amount
equal to twenty five percent(25%) of Project Costs incurred in completing such building or phase
of the Project as of such date. Upon the issuance by the City of each subsequent certificate of
occupancy for a building or phase of the Project, the City MRO shall be amended to increase its
amount by twenty five percent(25%) of additional Project Costs incurred in connection with each
subsequent completed building or phase, such that on the Completion Date, the outstanding
amount of the City MRO and the City Contribution represented thereby shall equal twenty five
percent (25%) of total Project Costs, less any payment of Available Tax Increment paid to
Developer prior to the Completion Date. The City Contribution shall not bear interest.
Developer acknowledges that, subject to the provisions of this Agreement:
(i) all payments of Available Tax Increment are subject to future annual appropriation of said
amounts by the City Common Council to payment hereunder; (ii) only the Available Tax
Increment generated by the Property (and all improvements and personal property thereon) shall
be used to make payments to the Developer; and (iii) if, on November 1, 2047, the amount of
Available Tax Increment to be paid under this Agreement proved insufficient to pay the entire City
Contribution, the City shall have no obligation or liability therefor. With respect to clause (i),
above, the City covenants and agrees as follows: (a) the City Manager or his designed
representative shall include the payment of the entire Available Tax Increment for each year
included during the Payment Term in the applicable budget request recommendation for the
following year's budget; (b) if the City's annual budget does not in any year provide for
appropriation of Available Tax Increment sufficient to make the payment due to Developer in that
year, the City will use its diligent, good faith efforts to notify Developer of that fact at least thirty
(30) days prior to the date the budget is presented to the City Common Council for final approval;
and (c) Available Tax Increment shall not be used to pay any other project costs of the District
until the City has applied to the payment due hereunder, in any year,the Available Tax Increment
generated by the Property that this Agreement provides will be applied to payment due hereunder.
Developer further acknowledges that, as a result of the special and limited nature of the City's
obligation to pay the City Contribution, the Developer's receipt of the City Contribution also
depends on factors including future mill rates,changes in the assessed value of the Property,failure
of the Project to generate Tax Increment at the rate expected by the Developer, changes in the Tax
Increment Law, and other failures beyond the City's or Developer's control.
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The payment of the City Contribution shall be subject to the following
conditions and limitations:
1. On each Payment Date during the Payment Term and subject to the
provisions of this Agreement, the City shall pay a portion of the City Contribution equal to the
amount of Available Tax Increment appropriated by the City Common Council for the payment
due that Payment Term year.
2. The City shall take no action to terminate or dissolve the District
prior to November 1, 2047, unless the City first pays the outstanding balance due under the City
Contribution, subject to the provisions of this Agreement, including,but not limited to,the annual
appropriation of the City Common Council of such outstanding balance due.
Attached hereto as Exhibit E is the City's projection of revenues and
expenditures for the District over its term, with the City Contribution labeled as "Municipal
Revenue Obligation"thereon. Exhibit E is provided for illustrative purposes only, and Developer
acknowledges that the amounts set forth thereon are estimates only.
B. City Contribution Adjustment. The City Contribution amount is based upon
Developer's demonstrated financial need, as shown on the proforma ten(10)year Internal Rate of
Return ("IRR") submitted by the Developer to the City, a copy of which is attached hereto as
Exhibit F. Developer and the City agree that to the extent that the Project's performance materially
deviates from the proforma IRR, the City Contribution may be adjusted pursuant to this Section
IV.B.
On or before the thirtieth (30th) day following the tenth (10th) anniversary of the
Completion Date (the "Test Date"), Developer shall provide the City with copies of internally
prepared financial statements and a complete annual cash flow update based on actual income and
expenses (in a format consistent with the example in Exhibit F) for the Project for the period from
the Completion Date to the Test Date. Within ten(10)business days thereafter,Developer and the
City shall, using information from the financial statements and cash flow update, and the
methodology utilized to calculate the original Project proforma IRR (as set forth on Exhibit F),
and applying the Approved Assumptions (as defined below) to supply any information that is not
known as of the Test Date, calculate the actual IRR as of the Test Date.
If the actual IRR calculated on the Test Date as proposed based upon the updated
analysis exceeds fifteen percent (15%), the City shall reduce the City Contribution to the amount
necessary to allow Developer to achieve a fifteen percent (15%) annual IRR over the Payment
Term (the "Approved Contribution").
As used herein, the "Approved Assumptions" shall be the terminal capitalization
rate, lease rates, and all other assumptions agreed upon by Developer and the City (but expressly
excluding refinancing,sale or recapitalization amounts,as noted below)as of the date the proforma
IRR is updated, and absent such agreement, as determined by an independent MAI appraiser with
not less than ten (10) years' experience appraising commercial and multi-family properties in the
Appleton-Oshkosh-Neenah metropolitan statistical area. All costs for the independent appraiser
shall be shared equally by the City and the Developer. Any proceeds or distributions received by
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the Developer from the refinancing, sale or recapitalization of the Project shall not be recognized
on the date received, but rather, included as additional consideration received on the Test Date.
C. City Contribution not to be Considered Indebtedness. In no circumstances
shall the amount of the City Contribution due Developer hereunder be considered an indebtedness
of the City, and the obligation of the City hereunder is limited to the Available Tax Increment
which is appropriated by the City Common Council for payment of such amounts and only to the
extent as provided in this Agreement. Amounts due hereunder shall not count against the City's
constitutional debt limitation, and no taxes will be levied for its payment or pledged to its payment
other than Tax Increment which has been appropriated for that purpose.
D. City Cooperation; Approvals. City shall timely complete all necessary or
required zoning, development and use reviews for the Project, pursuant to applicable City
ordinances. City shall process,on a timely basis,each and every application submitted by,through
or under Developer in connection with its development of the Project, including all applications
with respect to necessary or appropriate licenses and permits in connection with Developer's
development of the Project. Without limitation, if an application is deemed deficient, City shall
cooperate with Developer to ensure proper completion thereof. Likewise,City shall use good faith
efforts to diligently process all such matters, to assist Developer's efforts to timely complete the
Project as set forth in this Agreement.
E. Changes to Project Site Implementation Plan. As of the date of this
Agreement, Developer contemplates that the Project will be a mixed-use project consisting of
approximately 240 residential units and approximately 39,000 square feet of commercial space,
together with parking lots,other infrastructure, and site improvements. Upon written request from
Developer, City will cooperate with Developer with respect to modifications to the site
implementation or general development plan and proposed structure, development, phasing or
configuration of the remainder of the Project. The City will not unreasonably withhold its consent
to requests from Developer with respect to such modifications, so long as the Project, as modified,
retains the same basic character as a mixed-use development and the Developer does not, in any
event, propose spending less than the Minimum Project Costs.
V. ENVIRONMENTAL MATTERS.
A. Existing Environmental Conditions Affecting the PropertX. If Developer
elects to commence construction of any phase of the Project, Developer will use commercially
reasonable efforts to obtain Case Closure(s) for the Existing Environmental Condition(s) on such
phase which remains an open ERP site as of the Effective Date and any necessary post-closure
modification with respect to any phase which is located on a closed ERP site, and shall undertake
all development activities in full compliance with all continuing obligations with respect to such
phase which currently exist or which may be imposed upon the Property as conditions of Case
Closure(s).
B. Provisions Applicable to Existing Environmental Conditions. Developer
and the City acknowledge and agree that final Case Closure for each Existing Environmental
Condition may be obtained for any phase of the Project through the use of institutional controls,
including, without limitation, groundwater use restrictions and cap construction and maintenance
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requirements. Following Case Closure with respect to any phase of the Project, all such
institutional controls shall be the responsibility of the Developer with respect to such phase of the
Project.
If Developer commences construction on any phase of the Project and undertakes
the obligation to obtain final Case Closure for such phase of the Project, Developer will be
responsible for any and all claims in any way arising out of, connected with, or resulting from the
Existing Environmental Conditions with respect to such applicable phase of the Project.
Developer shall indemnify, defend, and hold harmless the City and its officers, employees,
contractors, and agents, and their respective successors and assigns, from and against any such
claims or damages relating to Existing Environmental Conditions for any phase of the Project upon
which developer commences construction.
VI. APPROVALS AND DEVELOPMENT STANDARDS.
A. Approval of Public Bodies. The Developer shall obtain from the City and
all other appropriate governmental bodies(and all other councils,boards,and parties having a right
to control, permit, approve, or consent to the development and use of the Property) all approvals
and consents necessary for the City to approve the development of the Property, and any other
approvals necessary to utilize the Property for the Project.
B. Acceptance of Agreement. The acceptance of this Agreement and granting
of any and all approvals, licenses, and permits by the City shall not obligate the City to grant any
additional approvals, including, but not limited to, variances, exceptions, or conditional use
permits, or approve any building or use the City determines not to be in compliance with the
applicable municipal codes and ordinances of the City. The City agrees to work in good faith,
promptly, and diligently in connection with the issuance or grant of all such approvals, consents,
permits, certificates, and any other documents as may be necessary or desirable in connection with
the development,utilization,and operation of the Property and to act reasonably and expeditiously
and in cooperation with the Developer in connection therewith; it being understood and agreed
that this provision is not intended to limit the rights of the City as more particularly set forth above
or in Article IX, below.
C. Development Requirements. The Developer shall use the Property for the
Project and in accordance with the provisions of this Agreement, and all other applicable federal,
state, county, and City laws and regulations.
D. Tax Exemption Forbearance. Developer acknowledges that the City is
relying upon the Developer's real property taxes to generate the Available Tax Increment to fund
the City Contribution. As a result, the Developer agrees that, neither the Developer nor any
existing or future Affiliate or related entity of the Developer(collectively, "Developer Affiliates")
shall use or permit the use of any of the Property in any manner which would render any of such
Property exempt from property taxation, without the prior written consent of the City, which
consent may be conditioned upon the obligation of the Developer, existing or future Affiliate, any
related entity of the Developer or any successor owner to enter into an agreement to make a
payment in lieu of taxes ("PILOT"), but may not be unreasonably withheld, so long as the PILOT
agreement requires a payment to the City substantially equivalent to the real estate tax payment
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which would be payable with respect to the portion of the Property which is exempt from taxation
were such portion of the Property not tax-exempt. This provision shall continue to be applicable
until the termination of the District. Any amount received by the City as a payment in lieu of taxes
will be treated as additional Available Tax Increment, and subject to payment to Developer under
the City MRO as provided herein.
VII. WARRANTIES AND REPRESENTATIONS.
A. The Developer and Merge hereby warrant, represent, and covenant to the
City:
1. Merge is a duly organized and existing limited liability company in
the State of Iowa, and authorized to transaction business in the State of Wisconsin.
2. The Developer is a duly organized and existing limited liability
company in the State of Delaware, and authorized to transact business in the State of Wisconsin.
3. The execution,delivery,and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized and approved
by Merge and by the Developer, and no other or further acts or proceedings of Merge or the
Developer or their respective member(s) or manager(s)are necessary to authorize and approve the
execution, delivery, and performance of this Agreement, and the matters contemplated hereby.
This Agreement, the exhibits, documents, and instruments associated herewith and made a part
hereof, have, if applicable, been duly executed and delivered by Merge and the Developer and
constitute the legal, valid, and binding agreements and obligations of Merge and the Developer,
enforceable against Merge and the Developer in accordance with their respective terms, except as
the enforceability thereof may be limited by applicable bankruptcy, insolvency,reorganization, or
other similar laws affecting the enforcement of creditors'rights generally,and by general equitable
principles.
4. There are no lawsuits filed or, to the knowledge of Merge or the
Developer, pending or threatened against Merge or the Developer that may in any material way
jeopardize the ability of Merge or the Developer to perform their respective obligations hereunder.
5. The Developer has sufficient funds through equity and debt
financing sources to construct, operate, maintain, and fulfill the Project.
6. The Developer shall provide, prior to execution of this Agreement,
a (i) a certificate of good standing/current status issued by the appropriate government agency of
the state of the Developer's organization, (ii) a certificate of authority to transact business in the
State of Wisconsin, if Developer is organized in a state other than Wisconsin, and(iii) a certificate
of incumbency and resolutions of the Developer stating who is authorized to sign on behalf of
Developer and that the Developer is duly authorized to enter into this Agreement and undertake
all of the obligations under this Agreement together with all other agreements, documents, and
contracts required to be executed in connection with the transactions arising out of this Agreement.
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7. Merge shall remain as the manager of Developer through the
Completion Date, and thereafter, any removal of Merge as manager of Developer shall be treated
as an assignment under Section X.D.,below.
B. The City hereby warrants and represents to Merge and the Developer that:
1. Subject to the approval of City Common Council, the execution,
delivery, and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized and approved by the City, and no other or further
acts or proceedings of the City or its officials are necessary to authorize and approve the execution,
delivery, and, subject to annual appropriation by the City Common Council, performance of this
Agreement, and the matters contemplated hereby. This Agreement, the exhibits, documents, and
instruments associated herewith and made a part hereof, have, if applicable, been duly executed
and delivered by the City and constitute the legal, valid, and binding agreement and obligation of
the City, enforceable against the City in accordance with their respective terms, except as the
enforceability thereof may be limited by applicable law and as is otherwise subject to annual
appropriation by the City Common Council.
2. No special assessments or other charges of any kind have been
levied against the Property with respect to the Project Costs.
VIII. CONDITIONS TO/LIMITATIONS ON THE OBLIGATIONS.
Notwithstanding anything to the contrary set forth in this Agreement,the following
are conditions to and limitations on each and all of the obligations of the City, Merge, and the
Developer under this Agreement, and the City, Merge, and the Developer shall not be obligated to
expend any amounts under this Agreement and may suspend or terminate this Agreement or the
performance of any and all of its obligations under this Agreement, without recourse against the
City, Merge, or the Developer, if:
A. The Wisconsin Department of Revenue fails to certify all or any portion of
the creation of the District or the Project Plan ("Non-Certification"); provided, however, the City
shall first make all reasonable efforts in good faith to cure such Non-Certification; or
B. The District is involuntarily terminated or dissolved ("Involuntary
Termination"); provided, however, the City shall first make all reasonable efforts in good faith to
cure such Involuntary Termination.
IX. DEVELOPER: EVENT OF DEFAULT.
A. Event of Default. An"Event of Default" is any of the following:
1. Failure to Construct the Project. Subject to the terms of this
Agreement, the Developer fails to construct the Project to the extent required under Article III,
above; or
2. Taxes. Any real or personal property tax or any special assessment
levied or imposed by the State, County, or City against all or any portion of the Property is not
10
20721717.10
paid prior to becoming delinquent; provided that the Developer shall have the right to contest the
same in accordance with applicable law; or
3. Tax Exem tp ion. All or any portion of the Property becomes tax
exempt without a PILOT agreement; or
4. Breach of Agreement. Merge or the Developer breaches any
provision of this Agreement or their respective obligations under this Agreement; provided,
however, that written notice of the breach has been given to Merge and the Developer and Merge
and the Developer have failed to cure such breach within sixty (60) days or such longer period as
is reasonably required under the circumstances and Merge and the Developer has begun to cure
such breach in good faith and is diligently continuing to cure such breach; or
5. Insolvency. Either Merge or 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; (ii)make a general assignment for the benefit of creditors or to an 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 petition or application, admitting the material allegations thereof, or
(v)apply to a court for the appointment of a receiver or custodian for any of its assets or properties,
with our without consent, and such receiver shall not be discharged within ninety (90) days after
its appointment; or(vi) adopt a plan for the complete liquidation of its assets.
B. City Options upon Event of Default. Whenever an Event of Default occurs
under Section IX.A, the City may take one or more of the following actions, in the City's sole and
absolute discretion:
1. Suspend or terminate the performance of any and all of its
undertakings and obligations under this Agreement, including, but not limited to, making any
further payments under this Agreement during the pendency of the Event of Default.
2. Take any action, including legal or administrative action, at law or
in equity, which may appear necessary or desirable to the City to enforce performance and
observance of any obligation, agreement, or covenant of Merge or the Developer under this
Agreement or to seek remedy for its breach. Such rights and remedies shall not be exclusive of
any other remedy or remedies, and such rights and remedies shall be cumulative and shall be in
addition to every other right and remedy given under this Agreement or now or hereafter existing
at law or in equity or by statute. Notwithstanding the foregoing, if an Event of Default under
Section IX.A.1 occurs, the City's exclusive remedies shall be as set forth in Section IX.B.1 above.
C. Delay in Exercise of Rights Not Waiver. No delay or omission to exercise
any right or power accruing to the City,on the one hand, or Merge and the Developer, on the other
hand,upon any default by the other party shall impair any such right or power or shall be construed
11
20721717.10
to be a waiver thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient as long as the default is continuing.
D. Written Waiver Required. In the event this Agreement is breached by either
party and such breach is expressly waived in writing by the other party,such waiver shall be limited
to the particular breach so waived and shall not be deemed to waive any other concurrent,previous,
or subsequent breach hereunder. A party's acquiescence in not enforcing any portion of this
Agreement shall not provide a basis for the application of estoppel or other like defense or
otherwise constitute waiver. Any waiver of any provision of this Agreement by the City must be
express and in writing.
E. Compensation for Costs of Breach. Whenever there is an Event of Default
by the Developer hereunder, and the City employs attorneys or incurs other expenses for the
collection of payment due or to become due for the enforcement or performance or observance of
any obligation or agreement on the part of the Developer contained in this Agreement, the
Developer shall,on demand thereof,pay to the City the reasonable fees of such attorneys and such
other reasonable expenses incurred by the City.
X. MISCELLANEOUS PROVISIONS.
A. Incorporation of Attachments. All exhibits and other documents attached
hereto or referred to herein are hereby incorporated in and shall become a part of this Agreement.
B. Term. Unless terminated under Article IX, above, the term of this
Agreement shall begin as of the Effective Date and shall continue until December 31,2047,unless
terminated earlier in accordance with the termination by the City of the District in accordance with
the Tax Increment Law.
C. Review and Inspections. The City will act diligently to review all necessary
approvals,licenses, and permits and to undertake any inspections duly requested by the Developer.
D. Restriction on Assignment of Agreement.
1. General Restriction. Except as set forth in Sections X.D.2. and
X.D.3., below, Developer may not assign or transfer its rights and obligations under this
Agreement without the prior written consent of the City(which such consent,following substantial
completion of the Project, shall not be unreasonably withheld, conditioned or delayed). For
purposes hereof,the removal of Merge as the manager of Developer shall be an assignment subject
to this Section X.D.1. Upon an assignment or transfer of the Developer's rights and obligations
under this Agreement in violation of this Section X.D.L, this Agreement shall terminate at the
option of the City and be of no further force and effect.
2. Permitted Assignments. Following substantial completion of the
Project, Developer may assign all of its rights and obligations to an Affiliate, without the prior
written consent of the City, so long as the proposed Affiliate assignee agrees in writing to assume
all of the Developer's rights and obligations under this Agreement, the Developer conveys the
Property to the Affiliate assignee, the Developer provides the City with timely written notice and
12
20721717.10
a copy of such fully executed assignment and assumption agreement, and Merge remains the
manager of the Affiliate assignee.
3. Collateral Assignment of Development Agreement. Developer may
assign its rights and obligations under this Agreement to a lender or lenders, solely for purposes
of providing collateral security for a loan issued to Developer for the purposes of the construction
and development of the Project. Any such assignment shall be contingent upon, or become
effective only following, an event of default Developer under the terms of the loan. So long as
Developer has notified the City of the identity and contact information for its lender, the City will
use reasonable efforts to notify Developer's lender of any Event of Default by Developer
hereunder. Any such assignment shall be of the right to receive payments on the City Contribution
only, and no such assignment shall relieve Developer of any of its obligations to the City
hereunder.
4. Transfers of Equity Interests. Nothing herein shall prevent, and the
City's consent shall not be required for,the transfer of equity interests in Developer or in any direct
or indirect owner thereof, any portion thereof among family members, or to trusts for the benefit
of family members for estate planning purposes.
E. Force Majeure. A party shall be excused from its obligations under this
Agreement if and to the extent and during such time as the party is unable to perform its obligations
or is delayed in doing so due to events or conditions outside of the party's reasonable control (each
a"Force Maj cure Event")including,without limitation in any way,acts of God,war,fire, or other
casualty, riot, civil unrest, extreme weather conditions, terrorism, strikes, and/or labor disputes.
Upon the occurrence of a Force Majeure Event,the party incurring such Force Majeure Event will
promptly give notice to the other party, and thereafter the parties shall meet and confer in good
faith in order to identify a cure of the condition affecting its performance as expeditiously as
possible.
F. District Information. As soon as practicable,but no later than December 15
of each calendar year, the City shall provide to the Developer the information pertaining to the
Available Tax Increment for the calendar year of the request; provided, however, the City is only
required to submit information in its possession and is not required to reply to any request prior to
December 15 of any calendar year.
G. Time of the Essence. Time is deemed to be of the essence with regard to
all dates and time periods set forth herein and incorporated herein.
H. Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this Agreement.
I. Delivery of Notices. Any notice required hereunder shall be given in
writing, signed by the parry giving notice, personally delivered, mailed by certified or registered
mail,return receipt requested, sent by overnight delivery service,or faxed to the parties' respective
addresses as follows, provided any notice given by facsimile is also given by one of the other
methods:
13
2072171 7.10
To the City: City of Oshkosh
City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI 54903-1130
Attn: City Attorney
With a cop.�to: Godfrey& Kahn, S.C.
100 W. Lawrence Street
Appleton, WI 54911
Attn: Michael J. Lokensgard
To Developer: c/o Merge, LLC
604 Clay Street
Cedar Falls, IA 50613
Attn: Brent Dahlstrom, Manager
With a copy to: Snell & Wilmer, L.L.P.
One Arizona Center
Phoenix, AZ 85004
Attn: Byron Sarhangian
and
Merge, LLC
Attn: Joy Hannemann
c/o Spaces
811 E. Washington, Suite 500
Madison, WI 53703
and shall be deemed given upon personal delivery, the first business day after certification or
registration, the first business day after deposit with the overnight delivery service, and upon
acknowledgement of receipt by facsimile or electronic mail (provided notice is promptly sent by
one of the other methods).
J. Entire Agreement. This Agreement and all other documents and
agreements expressly referred to herein, contain the entire agreement between the Developer and
the City with respect to the matters set forth herein. This Agreement may be modified only in
writing signed by all parties.
K. Law Applicable. This Agreement shall be construed in accordance with the
internal laws of the State of Wisconsin.
L. Originals and Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original.
14
20721717.10
M. Amendments to Agreement. This Agreement shall not be amended orally
but only by the written agreement of the parties signed by the appropriate representatives of each
parry and with the actual authority of each party.
N. Limitation on Liability. The parties acknowledge and agree that in carrying
out any of the provisions of this Agreement or in exercising any power or authority granted to
them thereby, there shall be no personal liability of the either parties' officers, members, agents,
employees, or representatives, it being understood and agreed that in such matters they act as
agents and representatives of the applicable party.
O. No Partnership. This Agreement specifically does not create any
partnership or joint venture between the parties, or render any party liable for any debts or
obligations of the other party.
P. Recording of Agreement. The parties hereto agree that at the City's option
a memorandum of this Agreement may be recorded on the record title to the Property. The
Developer shall upon request of the City execute and deliver any such memorandum or other
document in connection with such recording.
Q. Developer's Obligations Run with the Land. The Developer's obligations
under this Agreement and all consents, obligations, waivers, restrictions, and other requirements
of the Developer as set forth in this Agreement, shall be deemed to be covenants running with the
land and shall be binding upon the Property and the successors, assigns, and other transferees of
the Developer. The rights and benefits conferred upon the Developer shall not be covenants
running with the land and shall not inure to the successors, assigns, or other transferees of the
Developer, except as set forth in Section X.D, above.
R. Severance. If any portion of this Agreement is deemed invalid or
unenforceable by a court of competent jurisdiction, then the remainder of this Agreement shall
remain in full force and effect and enforceable to the fullest extent permitted by law.
S. Third Parties. This Agreement is made for the exclusive benefit of the
parties hereto,and their permitted assignees (as set forth in Section X.D.),and is not for the benefit
of any other persons, as third-party beneficiaries or otherwise, and this Agreement shall not be
deemed to have conferred any rights, expressed or implied, upon any other party, except as set
forth in Section X.D.
T. Neutral Construction. This Agreement is the result of a negotiated
agreement by the parties and prior to the execution of this Agreement each party had sufficient
opportunity to have review of the document by legal counsel. Nothing in this Agreement shall be
construed more strictly for or against either party because that party's attorney drafted this
Agreement or any portion thereof or attachment hereto.
[Signatures Begin On Next Page]
15
20721717.10
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the
date stated in the first paragraph of this Agreement.
MERGE, LLC
By:
Brent Dahlstrom, Manager
STATE OF }
} SS
COUNTY OF }
Personally came before me this day of 2019, the
above-named Brent Dahlstrom, to me known to be the Manager of Merge, LLC and the person
who executed the foregoing instrument on behalf of the limited liability company.
Notary Public, State of
My Commission:
16
20721717.10
MARION ROAD REDEVELOPMENT
LLC, a Delaware limited liability company
By:
Name:
Title:
STATE OF }
ISS
COUNTY OF }
Personally came before me this day of 2019, the
above-named , to me known to be the , of
Marion Road Redevelopment, LLC, and the person who executed the foregoing instrument on
behalf of the limited liability company.
Notary Public, State of
My Commission:
17
2072171 7.10
CITY OF OSHKOSH,WISCONSIN
By:
Mark A. Rohloff, City Manager
By:
Pamela R. Ubrig, City Clerk
Approved as to form:
By:
Lynn A. Lorenson, City Attorney
STATE OF WISCONSIN }
ISS
COUNTY OF WINNEBAGO }
Personally came before me this day of , 2019,the above named
Mark A. Rohloff and Pamela R. Ubrig, to me known to be the City Manager and City Clerk,
respectively, of the City of Oshkosh, Wisconsin, and the persons who executed the foregoing
instrument.
Notary Public, State of Wisconsin
My Commission:
18
20721717.10
REDEVELOPMENT AUTHORITY OF
THE CITY OF OSHKOSH,WISCONSIN
By:
Chair
By:
Executive Director
STATE OF WISCONSIN }
ISS
COUNTY OF WINNEBAGO }
Personally came before me this day of ,2019,the above named
and , to me known to be the Chair and Executive
Director, respectively, of the Redevelopment Authority of the City of Oshkosh, Wisconsin, and
the persons who executed the foregoing instrument.
Notary Public, State of Wisconsin
My Commission:
19
20721717.10
EXHIBIT A
Depiction of Property
20721717.10
EXHIBIT B
Legal Description of Property
Parcel H: Lot 2,Certified Survey Map No. 6553,recorded in the Winnebago County Register
of Deeds as Document No. 1577796, City of Oshkosh, Winnebago County,
Wisconsin.
Parcel 1: Lot 2, Certified Survey Map No. 7150,recorded in the Winnebago County Register
of Deeds as Document No. 1724920, City of Oshkosh, Winnebago County,
Wisconsin.
Parcel J: Lot 3,Certified Survey Map No. 7068,recorded in the Winnebago County Register
of Deeds as Document No. 1709684, City of Oshkosh, Winnebago County,
Wisconsin.
20721717.10
EXHIBIT C
Estimate of Property Project Costs
20721717.10
Exhibit C
VIII
EHLERS
owl
City of Oshkosh
y ulr III':)evd1gpiij1rneiij3t IllMaillliain IIIk
Mixed Use 240 Uinl ll';a',,r N 38,373 sf Coimrnercliiaall
Marion&Jackson Rd,Oshkosh,Wisconsin TID#36
s
Developer Financing-Series A 25,500,000 63.46
Developer Financing-Series B 0.00
DEVELOPER EQUITY-Land 1,000,000 2.49
DEVELOPER EQUITY-Cash 13,681,200 34.05
Subtotal 40,181,200 100.00
Grants 0.00
Grants 0.00
Deferred Developer Fee 0.00
Fee Waiver 0.00
Other 0.00
Subtotal 0 0.00
TOTAL SOURCES 40,181,200 100.00
Land 1 0.00% d0
I Demo/Asbestos Abatement 0.00% 0
Assessments 100,000 0.25% 417
Relocation 0.00% 0
!'µCl IIos,ingµCosttsu'� 25,000 0.0'w61,% 104
i�l��M�iT��IY�Ymlo�u�u'�IIIIIIPoi��°Ilfml �l��'I�fiSdu mImfiIl1ilul�llllllli�l�ll�flil�illtui�6 MmJl,
Building/Land Improvements 30,097,252 74.90% 125,405
Tenant Improvements 0.00% 0
Permits 1,364 0.00% 6
SAC/WAC/Met C SAC/UAC 0.00% 0
Park Dedication 0.00% 0
General Requirements 2,046,504 5.09% 8,527
Contractors Fee 937,981 2.33% 3,908
Builder's Risk 1,023 0.00% 4
Contingency 3% 1,023,252 3.09% 4,264
SOFT COSTS
Architectural,Engineering&Professional Fees 1,921,600 4.78% 8,007
Site 0.00% 0
Soils 0.00% 0
Environmental 0.00% 0
Survey 0.00% 0
FF&E 0.00% 0
Legal-Development 0.00% 0
Soft IIlCopsytw Contingency 1�u01,02p2 5..,w26% 421
� i mem mmmw w wmw.Vw mu mu miiYud iu.'
Construction Period Interest 1,275,000 3.17% 5,313
Issuance Fee 125,000 0.31% 521
Underwriter 5,000 0.01% 21
Bridge Loan 0.00% 0
Title Insurance 10,000 0.02% 42
Lender Legal 20,000 0.05% 83
Mortgage Registration Tax 0.00% 0
Debt Service Reserve 800,000 1.99% 3,333
Financing Fee 250,000 0.(32% 1,042
Title/Recording/Mortgage Registration Tax 0.00%EIR
0
® ®®®
•• ee
Developer Fee 1,441,200 3.59% 6,005
• i •of ,
Inputted Expenses 0.00% 0
Working Cap 0.00% 0
Management Start up 0.00% 0
TOTAL USES 40,181,200 167,422
(0)
OSHKOSH TIF POLICY
Developer must have minimum 15%equity of total project costs pass
PAYGO structures can provide UP TO 90%of annual increment pass
Preference given to projects with payback periods of 10 years or less fail
Total TIF assistance should not exceed 25%of total project costs pass
Project should generate sufficient increment to cover the requested TIF assistance pass
IRR should not exceed 20% pass
City will retain a maximum of 10%of the tax increment for additional TO costs pass
Projects receiving assistance will be subject to a'look back"provision tbd
EXHIBIT D
UNITED STATES OF AMERICA
STATE OF WISCONSIN
COUNTY OF WINNEBAGO
CITY OF OSHKOSH
TAXABLE TAX INCREMENT PROJECT MUNICIPAL REVENUE OBLIGATION
Number Date of Original Issuance Principal Amount
FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin (the
"City"), promises to pay to MARION ROAD REDEVELOPMENT, LLC (the "Developer"), or
registered assigns,but only in the manner,at the times,from the source of revenue and to the extent
hereinafter provided,the Principal Amount from time to time outstanding hereunder, on the dates
hereinafter provided, subject to the terms and conditions of this Municipal Revenue Obligation
("MRO").
This MRO is issued pursuant to the terms of a Tax Incremental District No. 36
Development Agreement dated as of , 2019 among the City, the Redevelopment
Authority of the City of Oshkosh, Wisconsin, Merge, LLC, and the Developer ("Development
Agreement"). Capitalized terms used herein without definitions have the meanings ascribed to
them in the Development Agreement.
The Principal Amount shall initially be as set forth above, which initial Principal Amount
represents twenty five percent (25%) of Project Costs incurred by Developer in connection with
the completion of, and issuance of a certificate of occupancy for,the initial phase(s)of the Project.
As certificates of occupancy are issued for subsequent phase(s) of the Project, the Principal
Amount shall be increased by an amount equal to twenty five percent (25%) of the Project Costs
incurred by Developer in connection with the completion of such subsequent phase(s), such that
the Principal Amount shall, as of the Completion Date, equal twenty five percent (25%) of the
total Project Costs incurred by Developer. Schedule I sets forth the date and amount of each
adjustment to the Principal Amount.
This MRO shall be payable in installments on [November 1, 20211 and each November 1
thereafter (the "Payment Dates") during the Payment Term in an amount equal to the Available
Tax Increment for the prior year provided that such payments are due under the Development
Agreement. Payments on this MRO shall be made only to the extent that the City has received
Available Tax Increment.
This MRO has been issued to finance projects within the City's Tax Incremental District
No. 36 ("District") and is payable only from the income and revenues herein described, which
income and revenues have been set aside as a special fund for that purpose and identified as the
"Special Redemption Fund" provided for under the Resolution adopted on , 2019 by
20721717.10
the Common Council of the City (the "Resolution"). This MRO is issued pursuant to the
Resolution and pursuant to the terms and conditions of the Development Agreement.
This MRO does not constitute an indebtedness of the City within the meaning of any
constitutional or statutory limitation or provision. This MRO shall be payable solely from
Available Tax Increment generated by the Project located within the District and appropriated by
the Common Council to the payment of this MRO (the "Revenues"). Reference is hereby made
to the Resolution and the Development Agreement for a more complete statement of the revenues
from which and conditions and limitations under which this MRO is payable and the general
covenants and provisions pursuant to which this MRO has been issued. The Resolution and
Development Agreement are incorporated herein by this reference.
The City shall have no obligation to pay any amount of this MRO which remains unpaid
after the final Payment Date of[November 1,20471.
The City makes no representation or covenant, express or implied, that the Available Tax
Increment or other Revenues will be sufficient to pay, in whole or in part, the amounts which are
or may become due and payable hereunder.
The City's payment obligations hereunder are subject to appropriation, by the Common
Council, of Available Tax Increment to make payments due on this MRO. When the amount of
Revenues have been appropriated and applied to payment of this MRO,the MRO shall be deemed
to be paid in full and discharged, and the City shall have no further obligation with respect hereto.
Further, as provided in Section IX.B.I of the Development Agreement, the City shall have no
obligation to make payments on this MRO in the event of certain defaults under the Development
Agreement.
This MRO is a special, limited revenue obligation and not a general obligation of the City
and is payable by the City only from the sources and subject to the qualifications stated,
incorporated or referenced herein. This MRO is not a general obligation of the City, and neither
the full faith and credit nor the taxing powers of the City are pledged to the payment of the principal
of this MRO. Further, no property or other asset of the City, except the above-referenced
Revenues, is or shall be a source of payment of the City's obligations hereunder.
Subject to the foregoing, the City may, at its option,prepay this MRO at any time.
This MRO is issued by the City pursuant to, and in full conformity with, the Constitution
and laws of the State of Wisconsin.
This MRO may be transferred or assigned, with the consent of the City, which consent
shall not be unreasonably withheld. Interests in this MRO may not be split,divided or apportioned.
In order to transfer or assign the MRO, the transferee or assignee shall surrender the same to the
City either in exchange for a new, fully-registered municipal revenue obligation or for transfer of
this MRO on the registration records for the MRO maintained by the City. Each permitted
transferee or assignee shall take this MRO subject to the foregoing conditions and subject to all
provisions stated or referenced herein.
20721717.10
It is hereby certified and recited that all conditions,things and acts required by law to exist
or to be done prior to and in connection with the issuance of this MRO have been done, have
existed and have been performed in due form and time.
IN WITNESS WHEREOF,the City Council of the City of Oshkosh has caused this MRO
to be signed on behalf of the City by its duly qualified and acting City Manager and City Clerk,
and its corporate seal to be impressed hereon, all as of the date of original issue specified above.
CITY OF OSHKOSH, WISCONSIN
By:
Name:
Title:
Attest:
Name:
Title:
2072171 7.10
Schedulel.
Principal Amount
Project Completed Completion Date/Date of Amount
Issuance
Phase 1 $
Phase 2 $
Phase 3 $
20721717.10
REGISTRATION PROVISIONS
This MRO shall be registered in registration records kept by the City Clerk of the City of Oshkosh,
Winnebago County, Wisconsin, such registration to be noted in the registration blank below and
upon said registration records, and this MRO may thereafter be transferred only upon
representation of this MRO together with a written instrument of transfer approved by the City and
duly executed by the Registered Owner or his attorney, such transfer to be made on such records
and endorsed hereon.
Date of Registration Name of Registered Owner Signature of City Clerk
20721717.10
EXHIBIT E
Projected District Revenue and Expenses
20721717.10
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EXHIBIT F
Developer's Pro Forma IRR Calculation
[may be omitted from recorded document]
2072171 7.10
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EXHIBIT G
Developer's Project Costs
Total Land Acquisition Costs
Purchase Price $
Title Insurance $
Commissions $
Due Diligence and Closing Costs $
Legal Fees $
Other Acquisition Costs $
TOTAL LAND ACQUISITION COSTS: $
Total Soft Costs
Architectural &Engineering $
Environmental Investigations $
Other Consultants $
Legal &Accounting $
Insurance $
Property Taxes $
Bonds $
Permits $
Marketing&Advertising $
Developer Fees $
Outside Consulting Fees $
Property Taxes $
Financing Fees and Costs $
Other Soft Costs $
TOTAL SOFT COSTS: $
Total Hard Costs
Site Preparation $
Materials $
Construction Costs $
Environmental Remediation $
Landscaping $
Equipment Costs $
Utility/Tap Fees $
Other Hard Costs $
TOTAL HARD COSTS: $
20721717.10
Other Costs [to be itemized]
TOTAL OTHER COSTS: $
20721717.10