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HomeMy WebLinkAbout5.11.12 Full AgendaREDEVELOPMENT AUTHORITY of the City of Oshkosh c/o Community Development Department 215 Church Ave., PO Box 1130 Oshkosh, WI 54902-1130 (920) 236-5055 EH.x ALLEN DAVIS (920)236-5053 FAX Executive Director http://vvww.ci.oshkosh.wi.us LOR Oshkosh I PALMERI �I i� Chairman REDEVELOPMENT AUTHORITY OF THE CITY OF OSHKOSH City Hall Room 404 4:00 p.m. May 11, 2020 Due to the current COVID-19 emergency, persons attending meetings will be required to comply with current restrictions related to social distancing. While in person comment is permitted for individual agenda items, citizens may and are encouraged to consider submitting written comments. Written public comments may be sent via mail addressed to the Community Development Office, placed in the City Hall dropbox, or sent by email to the Community Development Office prior to the RDA meeting at: aflanigano ci.oshkosh.wims ; written comments will be distributed to the board and made part of the public record of the meeting. ➢ ROLL CALL ➢ CONSENT: Approve Minutes from March 18, 2020 and Closed Session March 18, 2020 Minutes ➢ NEW BUSINESS: 20-12 Approve Amendment No. 2 to TID Development Agreement with Merge, LLC for Redevelopment of Parcels H, I and J within the Marion Road Redevelopment - Discussion: Community Gardens ➢ ADJOURNMENT MOTION TO GO INTO CLOSED SESSION: The Redevelopment Authority may convene into Closed Session pursuant to Section 19.85(1)(G) of the Wisconsin State Statutes to confer with legal counsel who will render advice concerning strategy to be adopted with respect to litigation in which the city is or is likely to become involved related to Fox Valley Pro Basketball, Inc. and/or property located at 1212 South Main Street in the City of Oshkosh. This meeting will be available live on Channel 10 in the City of Oshkosh, live streamed on oshkoshmedia.org, live on WOCT radio station 101.9 fm, live through Roku, Apple TV and Amazon Fire Stick. You may also view the meeting later on oshkoshmedia. org and the Oshkosh Media You Tube channel. If anyone requires other reasonable accommodation, please contact the office of the City Manager at aflanigau ci.oshkosh.wi.us, phone 920-236-5055. REDEVELOPMENT AUTHORITY MINUTES March 18, 2020 PRESENT: Thomas Belter, Jason Lasky, Lori Palmeri, Susan Panek EXCUSED: Jack Bermingham, Steve Hintz, Archie Stam STAFF: Allen Davis, Executive Director/Community Development Director; Darlene Brandt, Grants Coordinator; Andrea Flanigan, Recording Secretary Chairperson Palmeri called the meeting to order at 4:00 pm. Roll call was taken and a quorum declared present. The minutes of March 9, 2020 were approved as distributed. (Lasky/Panek). Public Hearing Spot Blight 1004 S. Main St No one appeared for the public hearing. 20-07 Approve Spot Blight Designation; Approve Acquisition of Property at 1004 South Main Street ($119,000) Motioiz by Paizek to move Res. 20-07 Seconded by Belter. Mr. Belter inquired if the City has looked at how much it would cost to acquire all of the properties in the Sawdust District. Mr. Davis stated staff is working on a map that would show the assessed value of the properties. This would give an estimate of potential acquisition costs. Ms. Palmeri inquired what the plan would be for this parcel. Mr. Davis stated it is the first parcel that would be acquired in this block. Some of the property would be used for the widening of S. Main Street and the rest could be combined with another parcel. Ms. Panek stated just looking at the picture, it does not appear to be blighted. What is the condition of the property? Ms. Brandt stated the roof is not in good shape along with the parking lot, mold starting because of roof leaks. RDA Minutes March 18, 2020 Page 1 Mr. Davis stated it would cost more than 50% of the value to bring it up to occupancy. The item was called. Motion carried 4-0. Public Hearing Spot Blight 1628 Liberty No one appeared for the public hearing. 20-08 Approve Spot Blight Designation; Approve Acquisition of Property at 1628 Liberty Street ($26,500) Motion by Belter to move Res. 20-08 Seconded by Lasky. Mr. Davis stated 1628 Liberty St. and 422 Otter Ave. are the first properties brought to the RDA for a raze order and code violations. Both property owners have been agreeable to the acquisition and will save the City three or more years in the raze order process. Mr. Lasky inquired if the property can be built on. Ms. Brandt stated the property will be listed for sale and a home could be built on the lot. The item was called. Motion carried 4-0. Public Hearing Spot Blight 422 Otter Ave No one appeared for the public hearing. 20-09 Approve Spot Blight Designation; Approve Acquisition of Property at 422 Otter Avenue ($15,000) Motion by Panek to move Res. 20-09 Seconded by Belter. Mr. Lasky inquired if the adjacent property owner had been contacted to buy the lot. Ms. Brandt stated the adjacent lot was already quite large and is a rental so staff has not reached out to the adjacent owner. There is the potential for resale and is in one of the neighborhood associations. The item was called. Motion carried 4-0. RDA Minutes March 18, 2020 Page 2 20-10 Recommend Oshkosh Common Council Approve 2020-2024 Consolidated Plan, 2020 CDBG Action Plan, Citizens Participation Plan and Analysis of Impediments to Fair Housing Choice Motion by Belter to move Res. 20-10 Seconded by Lasky. Ms. Brandt stated since the RDA utilizes CDBG funds for acquisitions, these documents provides different strategies and guidance for the City to use over the next five years. Ms. Panek inquired if the budget in the plans are available to the RDA. Mr. Davis stated there are Central City funds available for acquisition and demolition through CDBG. The RDA still needs Council approval to spend the funds. The item was called. Motion carried 4-0. 20-11 Approve Sawdust District Master Plan Motion by Belter to move Res. 20-11 Seconded by Panek. Mr. Davis stated there have been no changes since the last time the board reviewed it. The item was called. Motion carried 4-0. Discussion Long Term Community Garden Mayor Palmeri suggested the RDA move the discussion to a different meeting since it is not an essential topic. The board agreed to move the item to a future meeting. EXECUTIVE DIRECTOR'S REPORT Mr. Davis provided the Executive Director's update. Motion by Belter to convene into Closed Session related to the negotiation of land for slum and blight elimination at 1014 Wisconsin Street and pursuant to Section 19.85(1)(e) to discuss bargaining options, strategy, and parameters where competitive bargaining reasons require a closed session. Seconded by Lasky Motion carried 4-0. RDA Minutes March 18, 2020 Page 3 There was no further discussion. The meeting adjourned at approximately 4:25 PM. (Panek/Lasky) Respectfully submitted, Allen Davis Executive Director RDA Minutes March 18, 2020 Page 4 CITY OF OSHKOSH REDEVELOPMENT AUTHORITY City Hall Room 404 March 18, 2020 CLOSED SESSION MINUTES CALL TO ORDER (Chairperson Palmeri) 4:25 pm ROLL CALL _X_Thomas Belter Jack Bermingham X Lori Palmeri Steve Hintz _X__Jason Lasky _X_Sue Panek Archie Stam ALSO PRESENT: Allen Davis, Executive Director / Community Development Director; Darlene Brandt, Grants Coordinator; Andrea Flanigan Recording Secretary Discussion held regarding negotiations for slum and blight elimination at 1014 Wisconsin Street. A motion was made and seconded to adjourn. Carried by voice vote. The closed session meeting adjourned at approximately 4:45 PM. Respectfully submitted, Allen Davis Executive Director/ Community Development Director REDEVELOPMENT AUTHORITY OF THE CITY OF OSHKOSH, WISCONSIN MAY 11, 2020 (CARRIED PURPOSE 20-12 RESOLUTION LOST LAID OVER WITHDRAWN) APPROVE AMENDMENT NO. 2 TO TID DEVELOPMENT AGREEMENT WITH MERGE, LLC FOR REDEVELOPMENT OF PARCELS H, I AND J WITHIN THE MARION ROAD REDEVELOPMENT AREA WHEREAS, the City of Oshkosh created Tax Incremental District (TID) #36 and approved the Development Agreements with Merge, LLC; and WHEREAS, Merge, LLC has requested an amendment to the development agreement related to the order and timing of development for Parcels H, I and J within Marion Road Redevelopment area; 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 an Amendment to the TID 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 Development Agreement as amended. L Oshkosh TO: Honorable Mayor and Members of the Redevelopment Authority FROM: Allen Davis, Community Development Director DATE: May 7, 2020 RE: Approve Amendment No. 2 to TID 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 three 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 pay -go financing to the Developer equal up 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 amendment to the Development Agreement is attached. Overall, the fundamental provisions of the Development Agreement remain the same. The primary change contained in this 2nd Amendment is related to the order and timing for construction on the three parcels. It is now proposed that Parcel H (Brio/Oshkosh Food Coop) now be the first project. The full re -ordering of the development is now proposed as follows: Provision for the development of the property in three phases with Parcel H beginning construction on or before September 30, 2020, three months later than originally planned, Parcel J by December 31, 2022, one year later than originally planned, and Parcel I by December 31, 2023, two years later. The completion of Parcel H would be before June 30, 2022, one year later than agreed, and Parcels J and I by June 30, 2025, two years later than originally agreed. City Hall, 215 Church Avenue P.O. Box 1 130 Oshkosh, WI 54903-1 130 920.236.5000 hffp://www.ci.oshkosh.wi.us L Oshkosh In exchange for this revised order of development, staff proposed an amendment which the Developer has agreed to, as follows: • A disincentive is created in the event that the Developer fails to complete all three phases of the project as proposed. Specifically, the Developer may only receive up to 25% of project costs in pay -go if the second and third parcels are also developed. If only one parcel is developed, the pay -go is reduced to 15%, if only two parcels are developed, the pay -go is reduced to 20%. The Developer agreed to this exchange, which is also reflected in the language of the 2nd Amendment to the Development Agreement. The other major provisions of the Development Agreement remain unchanged. Some minor language changes are included in the document to match up with the revised project schedule and disincentive, along with the pay -go payment timing. Per Council's request, staff requested information from the Developer regarding its project financing. We received information from the Developer's bank that Merge has the financing in place to commence construction following the approval of the 2nd Amendment and within the revised project timeline. 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 amendment. Submitted, Allen Davis Community Development Director City Hall, 215 Church Avenue P.O. Box 1 130 Oshkosh, WI 54903-1 130 920.236.5000 hffp://www.ci.oshkosh.wi.us W E Tax Increment District #36 Merge Redevelopment Cito`. S Parcel Identification Oshkosh Tax Increment District #36 - Merge Redevelopment - Parcel Identification Map Parcel # Owner ID Local Land Improv. Total I Equalized Class Address Value Value Valuel Value Dwelling Census Zoning Units Tract 1 01-0202-0000 REDEVELOPMENT AUTH CITY OF OSHKOSH 0 JACKSON ST $0 $0 $0 $0 4 0 5 UMU-PD 2 01-0200-0200 REDEVELOPMENT AUTH CITY OF OSHKOSH 0 MARION RD $0 $0 $0 $0 4 0 5 UMU-PD 3 01-0222-0300 REDEVELOPMENT AUTH CITY OF OSHKOSH 0 MARION RD $0 $0 $0 $0 4 0 5 RMU-PD-RFO TOTALS: $01 $OI $01 $0 5B SG 1E 5F n ,r 1 3p 9 i 277 Parcel H �325 3 ° 19 Parcel l M N z - o Parcel J 3 ��x �lve� boo Legend - TID #36 Boundary 0 125 250 Feet Date: Friday, April 12, 2019 NoiionMISNOO MO=l ION AMVNlUYllBMd NoiionMISNOO MO=l ION AMVNlWl-lBNd f =IN olvAT Ile m 61m M6 Ml sk ml MEN mom Yz- 75 SECOND AMENDMENT TO TAX INCREMENTAL DISTRICT NO. 36 DEVELOPMENT AGREEMENT (MERGE REDEVELOPMENT) This Second Amendment to the Tax Incremental District No. 36 Development Agreement (the "Second Amendment") is made this day of May, 2020 (the "Effective Date"), by and between 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 OSHKOSH MANAGER, LLC, a Delaware limited liability company and assignee of MARION ROAD REDEVELOPMENT LLC (the "Developer"). RECITALS WHEREAS, the City has established Tax Incremental District No. 36 (the "District") as a district in which at least fifty percent (50%) of the property within the District is a blighted area, as defined in Wis. Stat. Sec. 66.1105(2)(ae)l, and in which certain costs incurred for redevelopment of the District may be reimbursed from property tax increment as provided by State law; and WHEREAS, pursuant to the District Plan, a Development Agreement was negotiated with Merge and Marion Road Redevelopment LLC, and entered into on September 4, 2019, as amended by that certain First Amendment to the Tax Incremental District No. 36 Development Agreement dated December 19, 2019 (as amended, the "Development Agreement"); WHEREAS, Marion Road Redevelopment LLC has, with the City's consent, assigned its interest in the Development Agreement to Developer; and WHEREAS, the Developer has requested, and the City has agreed, to amended the Development Agreement as set forth herein. NOW THEREFORE, in consideration of the recitals, the terms and conditions contained in this Second Amendment, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: AGREEMENT 1. CHANGES TO DEFINITIONS. (a) City Contribution. The definition of "City Contribution" is hereby deleted and replaced with the following: 22142427.4 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 and the City MRO, in a total principal amount not to exceed twenty five percent (25%) of Project Costs, with the actual amount of the City Contribution to be set forth in the City MRO to the extent ultimately issued. (b) Cites. The definition of "City MRO" is hereby deleted and replaced with the following: F. City MRO. "City MRO" means, collectively, the Building One MRO, the Building Two MRO, and the Building Three MRO, to the extent each is actually issued pursuant to Article IV, below. (c) The following definitions are added to the Agreement: P. Building One MRO. "Building One 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 attributable to Building One (as that term is defined in Section III.A., below), substantially in the form attached hereto as Exhibit D. The Building One MRO shall be issued pursuant to Section 66.0621 of the Wisconsin Statutes, shall not constitute 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 Building One MRO. Q. Building Two MRO. "Building Two 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 attributable to Building Two (as that term is defined in Section III.A., below), substantially in the same form as the Building One MRO. The Building Two MRO shall be issued pursuant to Section 66.0621 of the Wisconsin Statutes, shall not constitute indebtedness of the City, and shall be payable, subject to contingencies, solely from the limited sources and to the extent provided in this Agreement, any supplement or amendment to this Agreement executed in connection with the approval of the final plans and specifications for Building Two, and the Building Two MRO. R. Building Three MRO. "Building Three 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 attributable to Building Three (as that term is defined in Section III.A., below), substantially in same form as the Building One MRO. The Building Three MRO shall be issued pursuant to Section 66.0621 of the Wisconsin Statutes, shall not constitute indebtedness of the City, and shall be payable, subject to contingencies, solely from the limited sources and to the extent provided in this Agreement, any supplement or amendment to this Agreement executed in connection with the approval of the final plans and specifications for Building Three, and the Building Three MRO. 2 22142427.4 2. PROPERTY ACQUISITION CONTINGENCY. Article II of the Development Agreement is hereby amended to provide that the property acquisition contingency date is extended to May 29, 2020. The City acknowledges and agrees that Developer may acquire the parcels comprising the Property in one or more limited liabilities companies, so long as Developer is the statutory manager of each limited liability company. 3. DEVELOPER'S OBLIGATIONS. Section III.A. of the Development Agreement is hereby deleted and replaced with the following: A. Project Construction. Developer intends to develop multiple buildings (each, a "Building") on the Property, in multiple phases. Subject to the terms and conditions set forth in this Agreement, Developer shall commence construction of the first Building (`Building One") on the Property no later than September 30, 2020, and shall substantially complete Building One no later than June 30, 2022. Subject to the terms and conditions set forth in this Agreement, construction of the second Building ("Building Two") shall commence no later than December 31, 2022 and shall be substantially completed no later than June 30, 2025. Subject to the terms and conditions set forth in this Agreement, construction of the third Building ("Building hree") shall commence no later than December 31, 2023 and shall be substantially completed no later- than June 30, 2025. Developer shall diligently pursue completion of construction of each Building in accordance with applicable City ordinances and City -approved plans so that, subject to the terms and conditions set forth in this Agreement, each Building is completed by its substantial completion date as set forth above. With respect to the development of the Project under this Section III.A., Building One shall be a five (5) story structure with retail space on the first floor, together with related infrastructure and other site improvements. Developer agrees that it shall expend Project Costs in an amount of not less than (1) $12,000.000.00 for Building One. Developer's estimate of Project Costs for Building One are set forth on Exhibit C attached hereto. Building Two and Three shall be more fully described in one or more supplements to this Agreement, but shall, in the aggregate represent an investment of not less than $16,000,000 in Project Costs. The City will not unreasonably withhold its consent to proceed with Building Two and Three, so long as the Project, retains the same basic character as a mixed - use development. Developer's obligations to commence and complete construction under this Section III.A. are subject to (1) Developer's timely receipt of all approvals, licenses and permits necessary or appropriate in connection with Developer's development of the Project, and (2) 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 III.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. The commencement and completion dates set forth (and the corresponding dates for the issuance of the City MRO) above may be extended to the extent that, in addition to the existing force majeure provisions set forth in Section X.E., below, a declared state of 3 22142427.4 emergency results in (1) Developer's inability to obtain labor, equipment, or supplies in the open market, and/or (ii) construction of the then -current Building or Buildings being halted by a governmental work stoppage order, such as a "stay at home" order applicable to the construction industry. 4. CITY CONTRIBUTION AND OBLIGATIONS. Section IV.A. and IV.B. of the Development Agreement are hereby deleted and replaced with the following: A. City Contribution. In each year beginning in the year following the issuance of a certificate of occupancy for Building One and ending in 2047 (or when the total amount of the City Contribution has been paid to Developer, if earlier), in consideration of the Developer undertaking its obligations under this Agreement, Available Tax Increment shall be applied to make payments to the Developer of 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 second November after the issuance of a certificate of occupancy for Building One, provided that there is Available Tax Increment. The City Contribution shall be paid 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 as follows: 1. Building One MRO. The Building One MRO shall be issued upon the issuance by the City of a certificate of occupancy for Building One, so long as Building One is commenced and completed on or before the dates set forth in Section III.A., above. The Building One MRO shall initially be issued in an amount equal to twenty five percent (25%) ofProject Costs incurred in completing Building One. 2. Building Two MRO. The Building Two MRO shall be issued upon the issuance by the City of a certificate of occupancy for Building Two, so long as (i) the Building One MRO has issued, and (ii) Building Two is commenced and completed on or before the dates set forth in Section III.A., above. The Building Two MRO shall initially be issued in an amount of up to twenty five percent (25%) of Project Costs incurred in completing Building Two, with the actual percentage of Project Costs to be determined based upon Developer's final plans for Building Two and Developer's actual demonstrated need for a City Contribution to Building Two Project Costs. 3. Building Three MRO. The Building Three MRO shall be issued upon the issuance by the City of a certificate of occupancy for Building Three, so long as (1) the Building One MRO and Building Two MROs have issued, and (ii) Building Three is commenced and completed on or before the dates set forth in Section TIT.A., above. The Building Three MRO shall initially be issued in an amount of up to twenty five percent (25%) of Project Costs incurred in completing Building Three, with the actual percentage of Project Costs to be determined based upon Developer's final plans for Building Three and Developer's actual demonstrated need for a City Contribution to Building Three Project Costs. 4 22142427.4 4. Failure to Commence or Complete Buildings Two and Three. In the event that the Building Two MRO is not issued, the amount of the Building One MRO shall be reduced to sixty percent (60%) of its original amount, and neither the Building Two MRO nor the Building Three MRO shall be issued. In the event that the Building Three MRO is not issued, the amounts of the Building One MRO and Building Two MRO shall each be reduced to eighty percent (80%) of their respective original amounts, and the Building Three MRO shall not be issued. 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 al I 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 (1), 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. 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, assuming only the construction of Building One, with the City 22142427.4 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, and are subject to reduction as provided in Sections IV.A.4., above and IV.B., below. Upon execution by the City and Developer of one or more supplements to this Agreement setting forth the detailed plans for Buildings Two and Three as set forth in Section III.A., above, Exhibit E shall be updated to show revenues and expenditures for the District with the additions of Building Two and/or Building Three. 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 (30`h) day following the tenth (1 Oth) anniversary of the issuance of the last City MRO issued by the City hereunder (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 issuance date of the last City MRO 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 Building One 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 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 Section IV.E. of the Development Agreement is hereby deleted. 5. WARRANTIES AND REPRESENTATIONS. Section VII.A. of the Development Agreement is hereby deleted and replaced with the following: 6 22142427.4 C. The Developer and Merge hereby warrant, represent, and covenant to the City: l . 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 (1) 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. 6. PERMITTED ASSIGNMENTS AND CONVEYANCES. Sections X.D.1. and X.D.2. of the Development are hereby deleted and replaced with the following: 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 or obligations under this Agreement or convey the Project without the prior written consent of the City. For purposes hereof, the ownership of each Building by a separate limited liability company shall not constitute a 7 22142427.4 prohibited assignment, so long as (1) Developer remains as the statutory manager of such limited liability company, and (ii) Merge retains the right to control Developer. Upon any assignment or transfer of Developer's rights and obligations under this Agreement in violation of this Section X.D.1., this Agreement shall terminate at the option of the City and be of no further force or effect. 2. Permitted Assignments/Conveyances. Upon the substantial completion of the Project, Developer may convey the Project or any portion thereof to an Affiliate or a third party; provided, that Developer shall, in connection with any such conveyance, record a restriction pursuant to which the grantee agrees to be bound by the provisions of Section VI.D., above. Following any such conveyance, Developer shall continue to receive the City Contribution. 7. EVENT OF DEFAULT. Section IX.A.1. of the Development Agreement is hereby deleted and replaced with the following: 1. Failure to Construct the Project. Subject to the terms of this Agreement, the Developer fails to commence or complete construction of one or more of Buildings One, Two, or Three as required under Article III, above; or 8. CITY OPTIONS UPON EVENT OF DEFAULT. Sections IX.B. L of the Development Agreement is hereby deleted and replaced with the following: 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 or the City MRO during the pendency of the Event of Default; provided, however, that if the Event of Default is solely a failure to commence or complete the construction of Building Two and/or Building Three, payments under the City MRO to the extent that the City MRO is issued and outstanding as of the date of the Event of Default shall not be suspended or terminated, but shall be reduced as set forth in Section IV.A., above. In the event that Developer has commenced construction of one or more Buildings at the time of the Event of Default, Developer shall remain liable for obtaining Case Closures for any Existing Environmental Conditions on the parcel(s) on which the Building was commenced in accordance with Article V, above. In the event that, following an Event of Default, the City incurs any costs which are the responsibility of Developer under Article V, the City may deduct such costs from any payment of the City Contribution which continues to be payable to Developer pursuant to subsection (1), above. 9. EFFECT OF AMENDMENT. The provisions of this Second Amendment shall supersede and supplant the language in the Development Agreement as if stated fully therein. All other paragraphs and provisions of Development Agreement not otherwise addressed in this Second Amendment shall remain in full force and effect. 10. EXHIBITS. 8 22142427.4 (a) Exhibit C to the Development Agreement is replaced with Exhibit C attached hereto. (b) Exhibit D to the Development Agreement is replaced with Exhibit D attached hereto. (c) Exhibit E to the Development Agreement is replaced with Exhibit E attached hereto. (d) Exhibit F to the Development Agreement is replaced with Exhibit F attached hereto. [Signatures Begin On Next Page] 9 22142427.4 IN WITNESS WHEREOF, the parties have caused this Second Amendment to be signed as of the date stated in the first paragraph of this Second Amendment. MERGE, LLC Brent Dahlstrom, Manager STATE OF } } SS COUNTY OF Personally came before me this day of , 2020, 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: 10 22142427.4 OSHKOSH MANAGER, LLC, a Delaware limited liability company By: _ Name: Title: STATE OF } } SS COUNTY OF Personally came before me this day of , 2020, the above -named , to me known to be the of Oshkosh Manager, LLC and the person who executed the foregoing instrument on behalf of the limited liability company. Notary Public, State of My Commission: 11 22142427.4 CITY OF OSHKOSH, WISCONSIN wo Approved as to form: Lynn A. Lorenson, City Attorney STATE OF WISCONSIN } } SS COUNTY OF WINNEBAGO } Mark A. Rohloff, City Manager Pamela R. Ubrig, City Clerk Personally came before me this day of , 2020, 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: My Commission: 12 22142427.4 REDEVELOPMENT AUTHORITY OF THE CITY OF OSHKOSH, WISCONSIN itz STATE OF WISCONSIN } !SS COUNTY OF WINNEBAGO ) , Chair Executive Director Personally came before me this day of , 2020, 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: 13 22142427.4 EXHIBIT C Estimate of Building One Project Costs 22142427.4 EXHIBIT D Form of Building One MRO 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 OSHKOSH MANAGER, LLC, a Delaware limited liability company (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 the "Building One MRO" 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, as amended ("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 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, Building One of the Project. The Principal Amount is subject to reduction as follows: in the event that the Building Two MRO is not issued, the Principal Amount shall be reduced to sixty percent (60%) of the original Principal Amount of this MRO. In the event that the Building Two MRO is issued but the Building Three MRO is not issued, the Principal Amount of this MRO shall be reduced to eighty percent (80%) of the original Principal Amount of this MRO. This MRO shall be payable in installments on [November 1, 20231 and each November I 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 shall not bear interest. 22142427.4 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 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, 2047]. 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 Article IX 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, only as set forth in the Development Agreement. 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 16 22142427.4 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. 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: 17 22142427.4 EXHIBIT E Projected District Revenue and Expenses 22142427.4 EXHIBIT F Developer's Pro Forma IRR Calculation 22142427.4