HomeMy WebLinkAbout20-12 Merge Urban Development_Second AmendmentREDEVELOPMENT 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LOST LAID OVER WITHDRAWN)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.
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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
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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
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Units Tract
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REDEVELOPMENT AUTH CITY OF OSHKOSH
0 MARION RD
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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.
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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
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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.
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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:
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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
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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.
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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]
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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:
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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:
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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:
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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
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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.
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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
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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:
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22142427.4
EXHIBIT E
Projected District Revenue and Expenses
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EXHIBIT F
Developer's Pro Forma IRR Calculation
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