HomeMy WebLinkAbout29. 21-225APRIL 27, 2021 21-225 RESOLUTION
(CARRIED__7-0_____LOST_______LAID OVER_______WITHDRAWN_______)
PURPOSE: APPROVE DEVELOPMENT AGREEMENT WITH CABRINI
SCHOOL LOFTS, LLC FOR THE REDEVELOPMENT OF CABRINI
SCHOOL
INITIATED BY: COMMUNITY DEVELOPMENT
WHEREAS, a Development Agreement must be approved by City Council to
implement TIF #39 Project Plan, approved by Council on January 14, 2020; and
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper City officials are hereby authorized and directed to enter into a
Development Agreement with Cabrini School Lofts, LLC for the redevelopment of
Cabrini School, 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.
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
TO: Honorable Mayor and Members of the Common Council
FROM: Kelly Nieforth, Economic Development Services Division Manager
DATE: April 21, 2021
RE: Approve TID No. 39 TIF Development Agreement with Cabrini School Lofts,
LLC.
BACKGROUND
The Oshkosh Common Council approved the creation of TID No. 39 on January 14, 2020 for the
redevelopment of the former St. Francis Cabrini School building on Merritt Avenue. The
historical building was constructed in 1904 and was used as a school for the adjacent church, St.
Mary’s Catholic Church. The school closed and has sat vacant for four years. The Cabrini School
Lofts, LLC developers are proposing to reuse the building and construct thirty five (35) low-
income senior apartment units that will fill a need that we have in our housing market.
The project, located in Oshkosh’s central city, will be valued at approximately $2.03 million and
will cost approximately $8.1 million to construct. The funding for the project will come from
from private developer equity, permanent WHEDA financing, Low Income Housing Tax
Credits (LIHTC), State and Federal Historical Tax Credits, City Community Development Block
Grant (CDBG) Neighborhood Improvement Program loan and a WHEDA HOME loan.
ANALYSIS
The terms of the TIF Development are consistent with the City’s TIF Policy and are as follows:
20 year TIF Paygo obligation.
Developers will receive 90% of the created increment for a total of $975,082 in TIF
assistance.
City will retain 10% of the newly created increment for administrative costs.
The increase in total Paygo assistance is due to the City CDBG funding coming in the form of a
$200,000 loan, rather than a $200,000 grant as expected by the developers. The CDBG loan will
be repaid in 15 years at 0% interest. The other changes to the project include higher contingency
reserves due to historic rehabilitation unknowns, a higher developer fee, as required by
WHEDA and the LIHTC purchase agreement and the fact that the project is projected to have a
higher value than originally estimated in 2019 when the TID Project Plan was created.
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
FISCAL IMPACT
The City’s TIF obligation is a maximum of twenty (20) years and it is estimated that the principal
TIF payment would not exceed $975,082. The City’s exposure is limited because the TIF
obligation is a Paygo which is dependent on the developer’s ability to pay their annual taxes
and create additional increment.
RECOMMENDATIONS
The City Council approves the Resolution and authorizes staff to execute the development
agreement.
Respectfully Submitted, Approved,
Kelly Nieforth Mark Rohloff
Economic Development Services Manager City Manager
25123696.5
TAX INCREMENTAL DISTRICT NO. 39
DEVELOPMENT AGREEMENT
(CABRINI SCHOOL REDEVELOPMENT PROJECT)
This Development Agreement (the “Agreement”) is made this ___ day of April, 2021
(the “Effective Date”), by and between the CITY OF OSHKOSH, WISCONSIN, a Wisconsin
municipal corporation (the “City”), and CABRINI SCHOOL LOFTS, LLC, a Wisconsin limited
liability company (the "Developer").
RECITALS
WHEREAS, the City has established Tax Incremental District No. 39 (the “District”) as a
district in which at least fifty percent (50%) of the property within the District is in need of
rehabilitation or conservation work, as defined in Wis. Stat. Sec. 66.1337(2m)(a), 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, Developer has acquired a parcel of real property located within the District
which is more particularly described on Exhibit A attached hereto (the “Property”); and
WHEREAS, Developer intends to redevelop the District by rehabilitating the former St.
Francis Cabrini School for use as a 35-unit low income senior apartment complex with 26 single
car garage units, surface parking and other site improvements, all in accordance with applicable
City ordinances and City-approved plans (the “Project”); 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 properties located in the District; and
WHEREAS, Developer would not undertake the development of the Project but for its
reliance upon the receipt of tax increment financing to assist in the funding the Project; 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 and the District 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 and employment opportunities, and providing
a financing mechanism to expand and acquire necessary infrastructure, 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.
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NOW THEREFORE, in consideration of the 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:
Agreement. “Agreement” means this document and all of its component
parts and exhibits.
Affiliate. “Affiliate” means any entity majority owned and controlled by,
in control of, or under common control with Developer or any entity of which Developer is a
subsidiary or which is a shareholder of Developer. An Affiliate includes, but is not limited to, an
entity with which Developer merges or into which Developer consolidates, or which acquires all
or substantially all of the common stock or assets of the Developer.
Available Tax Increment. “Available Tax Increment” means an amount
equal to ninety percent (90%) the annual gross Tax Increment revenues actually received and
retained by the City which are generated by the District and improvements and personal property
therein in the immediately preceding calendar year.
City Contribution. “City Contribution” means payments to be provided
from the City to the Developer from Available Tax Increment as set forth in Section 3(a), below.
The amount of the City Contribution will vary based upon, among other things, final Project
Costs, annual assessments of the Project, and Increment generated, and the parties estimate that
as of the Effective Date, assuming the Project is completed as of the Completion Date (as that
term is defined in Section II.B., below), but in no event shall the City Contribution exceed Nine
Hundred Seventy Five Thousand Eighty Two and No/100 Dollars ($975,082.00) (the “Maximum
City Contribution”). The estimated Net Present Value of the Maximum City Contribution with a
4.65% discount rate is Five Hundred Sixty Seven Thousand Three Hundred Eighty Six and
No/100 Dollars ($567,386.00).
District. “District” means all of that property, including the Property,
included in Tax Incremental Finance District No.39 as described in the Project Plan.
Payment Dates. “Payment Dates” means November 1 of each year during
the Payment Term.
Payment Term. “Payment Term” means the term commencing on the first
day of November in the second full calendar year following the year in which the Completion
Date occurs and continuing on the same day of each year thereafter for a period of twenty (20)
years, or such lesser period of time as is necessary for Developer to receive the Maximum City
Contribution. For example, for illustrative purposes only, if the Completion Date is September
1, 2022, the Payment Term would run November 1, 2024 through November 1, 2043.
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Project. “Project” means the rehabilitation of the former St. Francis
Cabrini School for use as a 35 – unit low income senior apartment complex with 26 single car
garage units, surface parking and associated site improvements.
Project Plan. “Project Plan” means the “Project Plan for the Creation of
Tax Incremental Finance District No. 39 in the City of Oshkosh” prepared by Ehlers, Inc. dated
December 17, 2019, which is described on Exhibit B attached hereto and incorporated herein.
Project Costs. “Project Costs” means the total of all hard costs and soft
costs to be incurred by Developer in 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, and similar costs that are incurred in connection with the construction of the Project),
and all other direct and indirect costs of the development of the Project.
Property. “Property” means the parcel of real property described on
Exhibit A attached hereto.
Tax Increment. “Tax Increment” has the same meaning as defined in
Section 66.1105(2)(i) of the Wisconsin Statutes.
Tax Increment Law. “Tax Increment Law” means Section 66.1105 of the
Wisconsin Statutes.
II. DEVELOPER'S OBLIGATIONS.
Acquisition and Financing of Developer Property. Developer shall secure
commitments from all sources necessary to fund all Project Costs on or before June 30, 2021.
Project Construction. Developer shall commence construction of the
Project on or before September 1, 2021. Once commenced, 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 in any case construction shall be substantially
completed by September 1, 2022 (the “Completion Date”). For purposes hereof, “substantially
complete” shall mean the issuance of a certificate of occupancy for the Project. Developer
agrees that it shall expend Project Costs in an amount of not less than Six Million Dollars
($6,000,000.00) (“Minimum Project Costs”).
Costs and Expenses. 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 and labor. Furthermore, Developer
shall be responsible for payment of all City fees including impact fees, building permit fees,
zoning and sign permit fees, electrical and plumbing fees, and all other fees and expenses
charged by the City in connection with the Project.
Work Within City Rights of Way. To the extent that any portion of the
Project requires work within a City right of way, Developer will be solely responsible for
obtaining all required City approvals for such work, for the cost of all right-of-way, excavation,
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and other permits necessary to perform such work, and the cost of any letter of credit, bond, or
other security which the City requires to be posted in connection with work within City rights of
way. All such work will be performed in accordance with applicable City specifications and
plans approved by the City’s Engineering Department.
Verification of Project Costs. Developer shall, upon completion of the
Project and, in any event, prior to December 31, 2022, submit to the City a complete accounting
of its Project Costs, including all invoices and evidence of payment.
III. CITY'S OBLIGATIONS.
City Contribution. In each year during the Payment Term, in
consideration of the Developer undertaking its obligations under this Agreement, the Available
Tax Increment shall, subject to the Maximum City Contribution and annual appropriations by the
City Common Council, be applied to make payments under this Agreement to pay the Developer
the City Contribution. The City Contribution constitutes eligible Projects Costs within the
meaning of Section 66.1105(2) of the Wisconsin Statutes. The first payment shall not be made
until the first Payment Date, and shall be limited to the amount of Available Tax Increment. The
City Contribution shall be paid by the City only out of the Available Tax Increment, subject to
the provisions of this Agreement. The City covenants and agrees as follows: (a) the City
Manager or his designated 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 the 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) funds in the special fund of the District attributable to the
Available Tax Increment generated from the District (and all improvements and personal
property thereon) shall not be used to pay any other Project Costs until the City has applied to the
payment due hereunder, in any year, the Available Tax Increment generated by the District (and
all improvements and personal property thereon) that this Agreement provides will be applied to
payment due hereunder.
Developer acknowledges that, subject to the provisions of this Agreement:
(i) all payments of Available Tax Increment are subject to the future annual appropriation of said
amounts by the City Common Council to payment due hereunder; (ii) only the Available Tax
Increment generated by the District (and all improvements and personal property thereon) shall
be used to make payments to the Developer. The City shall have no liability to Developer in the
event that the amount of the City Contribution is less than the amount necessary to pay Project
Costs or to provide Developer with any minimum rate of return on the Project.
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
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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 the end of the Payment Term.
Attached hereto as Exhibit C is the City’s projection of revenues and
expenditures for the District over its term, with the City Contribution labeled as “City
Contribution” thereon. Exhibit C is provided for illustrative purposes only, and Developer
acknowledges that the amounts set forth thereon are estimates only.
City Contribution not to be Considered Indebtedness. In no circumstances
shall 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 the Tax Increment which has been appropriated for that purpose.
IV. APPROVALS AND DEVELOPMENT STANDARDS.
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 Developer
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.
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 VII, below.
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.
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 during the Payment Term, neither
the Developer nor any existing or future Affiliate or related entity of the Developer (collectively,
"Developer Affiliates") will pursue, assist, support, or be involved in any federal, state, or local,
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judicial, legislative, or regulatory action or process that seeks, directly or indirectly, to prohibit,
set aside, or limit the taxability of all or any portion of the Property on any basis whatsoever, and
the Developer for itself and on behalf of the Developer Affiliates, and each of their respective
successors in interest, waives any and all rights thereto. In addition, during the period of time
that commences upon the date of this Agreement and terminates at the end of the District, neither
the Property, the Project nor any part thereof or interest therein shall be sold, transferred, leased,
assigned, gifted, owned, used, or conveyed in any way to any person, partnership, organization,
or entity that is all or partially exempt from federal or State of Wisconsin income taxes or real or
personal property taxes, without the express prior written consent of the City, which such
consent may be withheld in the City’s sole and absolute discretion (collectively, the “Restrictive
Covenant”). This Restrictive Covenant shall permit the City to have enforcement rights.
Notwithstanding anything to the contrary contained herein, the Restrictive Covenant shall
automatically terminate upon the conclusion of the Payment Term.
V. WARRANTIES AND REPRESENTATIONS.
The Developer hereby warrants, represents, and covenants to the City:
1. The Developer is a duly organized and existing limited liability
company in the State of Wisconsin and authorized to transact business in the State of Wisconsin.
2. The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly authorized and
approved by the Developer, and no other or further acts or proceedings of the Developer or its
members, directors, or officers 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 the Developer and constitute the legal, valid,
and binding agreement and obligation of the Developer, enforceable against 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.
3. There are no lawsuits filed or, to the knowledge of the Developer,
pending or threatened against the Developer or the Property that may in any material way
jeopardize the ability of the Developer to perform its obligations hereunder.
4. The Developer has sufficient funds through equity, debt, and other
financing sources to continuously operate, maintain, and fulfill the Project.
5. 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, and (ii) resolutions of the Developer which provide for
who is authorized to sign on behalf of the 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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The City hereby warrants and represents to the Developer that, 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.
VI. 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 and the
Developer under this Agreement, and the City 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 or the Developer, if:
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
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.
VII. DEVELOPER: EVENT OF DEFAULT.
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 consistent with Article II, above; or
2. Taxes. The Developer fails to pay 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 then owned by the Developer before they are delinquent, and in any event
within ninety (90) days after written notice from the City of such failure; provided that the
Developer shall have the right to contest the same in accordance with applicable law; or
3. Tax Exemption. All or any portion of the Property becomes tax
exempt; or
4. Breach of Agreement. The Developer breaches any provision of
this Agreement or its obligations under this Agreement; provided, however, that written notice of
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the breach has been given to the Developer and the Developer has failed to cure such breach
within sixty (60) days or such longer period as is reasonably required under the circumstances
and the Developer has begun to cure such breach in good faith and is diligently continuing to
cure such breach.
5. Breach of Other Project Financing Agreements. The Developer
shall be in default under the terms of any other agreement concerning the financing of the
Project, including any agreement relating to low income housing tax credits, historic tax credits,
HOME funds, Neighborhood Improvement Program funds, and the like, in each case beyond any
applicable notice and cure period.
6. Continuous Operation. The Developer ceases to operate the
Project for a period of sixty (60) consecutive days for reasons other than casualty, remodeling, or
Force Majeure.
City Options upon Event of Default. Whenever an Event of Default
occurs under Section VII.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 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.
Delay in Exercise of Rights Not Waiver. No delay or omission to exercise
any right or power accruing to the City or the Developer upon any default by the other party shall
impair any such right or power or shall be construed 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.
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.
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
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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.
VIII. MISCELLANEOUS PROVISIONS.
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.
Term. Unless terminated under Article VII, above, the term of this
Agreement shall begin as of the Effective Date and shall continue until the earlier of (i)
Developer’s receipt of the Maximum City Contribution, or (ii) the end of the Payment Term,
unless terminated earlier in accordance with the termination by the City of the District in
accordance with the Tax Increment Law.
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.
Restriction on Assignment of Agreement.
1. Assignment upon Transfer of Project. Following completion of the
Project, the Developer may assign or transfer the Project and all of its rights under this
Agreement to an Affiliate without the express prior written consent of the City, so long as the
proposed Affiliate assignee or transferee agrees in writing to assume all of the Developer's
obligations under this Agreement and the Developer provides the City with timely written notice
and a copy of such fully executed assumption. Otherwise, this Agreement, shall not be
assignable (other than for collateral purposes pursuant to Section X.D.2, below) without the
express written consent of the City, which shall be in the sole and absolute discretion of the City.
All of the rights and obligations under this Agreement must be assigned or transferred together,
if at all, and may not be assigned separately.
2. 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.
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 Majeure Event”) based solely upon acts of God, war, fire, or other
casualty, riot, civil unrest, extreme weather conditions, terrorism, strikes, and labor disputes.
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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.
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.
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.
Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this Agreement.
Delivery of Notices. Any notice required hereunder shall be given in
writing, signed by the party giving notice, personally delivered, mailed by certified or registered
mail, return receipt requested, sent by overnight delivery service, faxed or emailed to the parties
respective addresses (or at such other address for a party as shall be specified in a notice given in
accordance with this Section) as follows, provided any notice given by facsimile or email is also
given by one of the other methods:
To the City: City of Oshkosh
City Attorney’s Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI 54903-1130
Attn: City Attorney
Facsimile No. 920-236-5106
Email: llorenson@ci.oshkosh.wi.us
With a copy to: Godfrey & Kahn, S.C.
100 W. Lawrence Street
Appleton, WI 54911
Attn: Michael J. Lokensgard
Facsimile No. 920-830-3530
Email: mlokensgard@gklaw.com
To Developer: Cabrini School Lofts, LLC
230 Ohio Street #200
Oshkosh, WI 54902
Attn: Andrew Dumke
Facsimile No. 920 - ___________
Email: andy@alliancedevelopment.biz
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With a copy to: Hirschberg Law, LLC
601 Oregon Street, Suite A
Oshkosh, WI 54902
Facsimile No. 920-744-0102.
Email: jason@hirschberglaw.com
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).
Entire Agreement. This Agreement and the documents to be delivered
hereunder constitute the sole and entire agreement of the parties to this Agreement with respect
to the subject matter contained herein, and supersede all prior and contemporaneous
understandings and agreements, both written and oral, with respect to such subject matter. In the
event of any inconsistency between this Agreement and the documents to be delivered
hereunder, or the Exhibits, this Agreement will control. This Agreement may be modified only in
writing signed by all parties.
Law Applicable. This Agreement shall be construed in accordance with
the internal laws of the State of Wisconsin.
Originals and Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original.
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
party and with the actual authority of each party.
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.
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.
Recording of Agreement. The parties hereto agree that at the City's option
a memorandum of this Agreement, including reference to the Restrictive Covenant, may be
recorded on the record title to the Developer Property. The Developer shall upon request of the
City execute and deliver any such memorandum or other document in connection with such
recording.
Developer's Obligations Run with the Land. The Developer's obligations
under this Agreement and all consents, obligations, waivers, restrictions, and other requirements
12
25123696.5
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 VIII.D, above.
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.
Third Parties. This Agreement is made for the exclusive benefit of the
parties hereto, and their permitted assignees (as set forth in Section VIII.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 VIII.D.
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.
Headings. The headings inserted in this Agreement are for convenience
only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or
any provision of this Agreement.
[Signatures Begin On Next Page]
13
25123696.5
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the
date stated in the first paragraph of this Agreement.
CABRINI SCHOOL LOFTS, LLC
By:
Its:
STATE OF WISCONSIN }
} SS
COUNTY OF ____________ }
Personally came before me this ______ day of ___________________, 2021, the
above-named __________________, to me known to be the person who executed the foregoing
instrument.
*
Notary Public, State of
My Commission:
14
25123696.5
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 }
} SS
COUNTY OF WINNEBAGO }
Personally came before me this _____ day of ________________, 2021, the above
named Mayor and City Clerk, to me known to be the person who executed the foregoing
instrument.
*
Notary Public, State of Wisconsin
My Commission:
25123696.5
EXHIBIT A
Description of Property
Lot Two (2), Certified Survey Map No. 7579, recorded as Document No. 1808014, Winnebago
County Register of Deeds, located in the fractional Northeast ¼ of Section 24, Township 18
North, Range 16 East, City of Oshkosh, Winnebago County, Wisconsin.
Parcel No. 90404350200
25123696.5
EXHIBIT B
Description of Project Plan
Tax Incremental District No. 39 is a proposed 1.28 acre “In Need of Rehabilitation or
Conservation” district consisting of tax parcel 90404350200 located at the southwest corner of
Merritt Avenue and Boyd Street. The District will be created to pay the costs of development
incentives needed to facilitate the rehabilitation and conservation of the former St. Francis
Cabrini School, which has sat vacant since 2017. The building will be converted into a 35-unit
low income senior apartment complex with 26 single car garage units as well as surface parking.
The rehabilitation of the building will include:
• ADA accessibility improvements, including the installation of an elevator.
• Modification of the interior for apartments, including new code-compliant spaces
for bedrooms, bathrooms and kitchens.
• Replacement of the plumbing system.
• Replacement of the HVAC systems.
• Replacement of the electrical systems.
Exterior conservation will include brick maintenance and tuckpointing, window replacement,
door replacement, and roof and stairway repairs as needed.
The City projects that net new land and improvements value of approximately $2.03 million will
result from the Project.
25123696.5
EXHIBIT C
Projected District Revenue and Expenses
[Insert Ehlers Pro Forma]
City of Oshkosh
Tax Increment District # 39
Cash Flow Projection
Year
90%Year
2020 0 0 0 0 0 0 2020
2021 0 0 0 0 0 0 2021
2022 0 0 0 0 0 0 975,082 2022
2023 0 0 0 0 0 0 975,082 2023
2024 51,643 51,643 46,479 4,993 51,472 171 171 928,603 2024
2025 51,901 51,901 46,711 5,018 51,729 172 343 881,891 2025
2026 52,161 52,161 46,945 5,043 51,988 173 516 834,947 2026
2027 52,422 52,422 47,180 5,068 52,248 174 690 787,767 2027
2028 52,684 52,684 47,415 5,094 52,509 175 865 740,352 2028
2029 52,947 52,947 47,653 5,119 52,772 176 1,041 692,699 2029
2030 53,212 53,212 47,891 5,145 53,036 176 1,217 644,808 2030
2031 53,478 53,478 48,130 5,170 53,301 177 1,394 596,678 2031
2032 53,745 53,745 48,371 5,196 53,567 178 1,573 548,307 2032
2033 54,014 54,014 48,613 5,222 53,835 179 1,752 499,694 2033
2034 54,284 54,284 48,856 5,248 54,104 180 1,932 450,839 2034
2035 54,556 54,556 49,100 5,275 54,375 181 2,113 401,738 2035
2036 54,828 54,828 49,346 5,301 54,647 182 2,295 352,393 2036
2037 55,103 55,103 49,592 5,328 54,920 183 2,477 302,801 2037
2038 55,378 55,378 49,840 5,354 55,194 184 2,661 252,960 2038
2039 55,655 55,655 50,089 5,381 55,470 185 2,846 202,871 2039
2040 55,933 55,933 50,340 5,408 55,748 186 3,031 152,531 2040
2041 56,213 56,213 50,592 5,435 56,026 186 3,218 101,939 2041
2042 56,494 56,494 50,845 5,462 56,307 187 3,405 51,095 2042
2043 56,776 56,776 51,095 5,489 56,584 192 3,597 0 2043
2044 57,060 57,060 0 57,060 60,658 2044
2045 57,346 57,346 0 57,346 118,003 0 2045
2046 57,632 57,632 0 57,632 175,636 0 2046
2047 57,921 57,921 0 57,921 233,556 0 2047
2048 58,210 58,210 0 58,210 291,766 0 2048
Total 1,371,598 1,371,598 975,082 104,750 1,079,831 Total
567,386 Net Present Value of Payments (2022 - 2043) @ 4.65%3
Notes:
1City contribution reflects 90% of available Tax Increment Revenue generated to be paid as a development incentive over 20 years.
2City of Oshkosh will retain 10% of available Tax Increment Revenue to cover ongoing administation and reporting requirements.
3Discount rate is based off of WHEDA present financing terms.
Projected Revenues
Tax
Increments
Total
Expenditures
Balances
Admin.
Expense2
Projected Expenditures
MRO
Payments
Outstanding
City
Contribution1
@
Projected TID Closure
Annual Cumulative
Total
Revenues