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HomeMy WebLinkAboutMill on Main Redevelopment Poject Phase2DEVELOPMENT AGREEMENT Document Number I Document Title -velopment Agreement between the City of Oshkosh, Wisconsin, a isconsin municipal corporation (the "City"), and THE MILL ON MAIN 12, LLC. a Wisconsin Limited liability company (the "Developer)." No. 03-01550-400 #A A 9 zlol U z I RECORDED ON: 10/03/2023 08:22 AM RECORDING FEE: 30.00 PAGES:35 ing Area Name and Return Address Community Development PO Box 1130 Oshkosh, W1 54903-1130 03-01550-400 Parcel Identification Number (PIN) of 2 of Certified Survey Map No. 8005, recorded with the Winnebago County Register of Deeds as Document o. 1899509, being a part of the Southwest 1/4of Section 24, all in Township 18 North, Range 16 East, City of shkosh, Winnebago County, Wisconsin. instrument drafted by: Kelly Nieforth Oshkosh, WI 54903-1130 TAX INCREMENTAL DISTRICT NO.43 DEVELOPMENT AGREEMENT (MILL ON MAIN REDEVELOPMENT PROJECT PRASE 2) This Development Agreement ("Agreement') is made this -0- day of h4JJq , 2023 (the "Effective Date"), by and among the CITY OF OSHKOSH, WISCONSIN, la Wisconsin municipal corporation, the REDEVELOPMENT AUTHORITY OF THE CITY OF OSHKOSH, WISCONSIN (the "RDA" and, collectively with the City of Oshkosh, Wisconsin, the "Cily"), and THE MILL ON MAIN PH 2, LLC, a Wisconsin limited liability company ("Developer"). WHEREAS, the City has established Tax Incremental District No. 43 (the "District") as a 13.45 acre blighted area district in which at least fifty percent (50%) of the property within the District is a blighted area, as that term is defined by Wis. Stat. Sec. 66.1105(2)(ae), and in which certain costs incurred for redevelopment of the District may be reimbursed from the property tax increment as provided by State law; and WHEREAS, T. WALL ENTERPRISES DEVELOPMENT, LLC ("T. Wall'), approached the City indicating a desire to develop and construct within the District, in three (3) phases, a mixed -use project consisting of approximately 296 residential units and approximately 19,375 square feet of commercial space, together with underground and surface parking, other infrastructure and site improvements, in accordance with applicable City ordinances and City - approved plans (the "Project"), all as shown on the conceptual site plan attached hereto as Exhibit A (the "Site Plan"); and WHEREAS, to promote the development of the Project, the City created the District to assist in the financing of the costs of certain improvements, development incentives, and other costs associated with the ownership and development of the Project; and WHEREAS, pursuant to the terms of a separate development agreement (the "Phase 1 Development Agreement"), Mill on Main Ph 1, LLC, an affiliate of Developer (the "Phase 1 Developer"), is constructing the first phase of the Project (the "Phase I Project"), which Phase 1 Project is to be commenced no later than September 30, 2023 and substantially completed no later than December 31, 2024; and WHEREAS, Phase 2 of the Project will consist of approximately 95 market rate apartment units and approximately 8,000 square feet of commercial space (the "Phase 2 Project"), to be constructed by Developer as shown on the Site Plan, on a parcel of real property to be conveyed by the RDA to Developer (the "Phase 2 Property"), which Phase 2 Property is legally described on Exhibit B attached hereto; and WHEREAS, Developer would not undertake the development of the Phase 2 Project but for their reliance upon receiving tax increment financing to assist in the funding of a portion of Developer's acquisition, development and operation costs for the Phase 2 Property, all as described below; and 29122739.2 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 Phase 2 Property contemplated by this Agreement are necessary and desirable to serve the interests of the City and its residents by expanding the tax base of the City, providing additional development opportunities, and providing a financing mechanism to make certain public improvements, all consistent with the purpose of a Tax Incremental District under Section 66.1105, Wisconsin Statutes; and WHEREAS, based upon the City's desire to redevelop the District and to obtain the economic benefits to be generated from the Project, the City is willing to enter into this Agreement. NOW THEREFORE, in consideration of the foregoing recitals, the terms and conditions contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: AGREEMENT I. DEFINITIONS. For purposes of this Agreement, the following terms shall have the following meanings: A. Agreement. "Agreement" means this document and all of its component parts and exhibits. B. Affiliate. "Affiliate" means any entity which is, directly or indirectly, majority owned and controlled by, in control of, or under common control with T. Wall or Developer as of the Effective Date. C; Available Tax Increment. "Available Tax Increment" means an amount equal to ninety percent (90%) of the annual gross Tax Increment revenues actually received and retained by the City which are generated by the Phase 2 Property and improvements located thereon in the immediately preceding calendar year. D. Case Closure. "Case Closure" has the meaning set forth in Wis. Stat. Sec. 292.12. E. City Contribution. "City Contribution" means payments to be provided from the City to the Developer with respect to the Phase 2 Project from Available Tax Increment pursuant to the terms of this Agreement, in a total principal amount not to exceed the lesser of (i) FIVE MILLION NINE HUNDRED EIGHTEEN THOUSAND FOUR HUNDRED EIGHTY SIX and No/100 Dollars ($5,918,486.00), or (ii) twenty five percent (25%) of Phase 2 Project Costs, subject to adjustment as provided in Section N.B. and Section IX.B.1., below. F. District. "District" means all of the property included in Tax Incremental Finance District No. 43 as described in the Project Plan. 2 29122739.2 G. Existing Environmental Conditions. "Existing Environmental Conditions" means any Hazardous Substances, known or unknown, present in concentrations greater than applicable standards on, in, at, or under the Phase 2 Property or migrating in concentrations greater than applicable standards to or from the Phase 2 Property at any time on or before the commencement date of the Ground Lease, including, but not limited to those matters subject to the following proceedings: (i) Sawdust District — LGU, BRRTS #03715857901, 43 E. 7th Avenue; (ii) 706 S. Main Street — City of Oshkosh— LGU, BRRTS #0371586044, 706 S. Main Street; (iii) Recreational Lanes, BRRTS: #0371524916 (closed), 710 S. Main Street; and (iv) Miles Kimball Co., BRRTS #0271000135 (closed with conditions), 41 W. 8th Street. H. Ground Lease. "Ground Lease" means that certain Ground Lease by and between the RDA and Developer, in the form attached hereto as Exhibit F, pursuant to which Developer will lease the Phase 2 Parcel from the RDA until the conditions set forth in Article V, below, are met. l . Hazardous Substances. "Hazardous Substances" means toxic, hazardous, and/or regulated substances, pollutants, or contaminants, whether present in the soil or groundwater at, under, or migrating from or to the Phase 2 Property. I. Payment Dates. "Payment Dates" means November 1 of each year, commencing on November 1 of the first year following the year in which the Phase 2 Project first generates Available Tax Increment, up to and including November 1, 2050. K. Payment Term. "Payment Term" means the term commencing on the initial Payment Date and continuing on each Payment Date thereafter until the first to occur of the following: (i) payment to Developer of the entire amount of the City Contribution, or (ii) November 1, 2050. L. Phase 2 MRO. "Phase 2 MRO" means the Municipal Revenue Obligation issued by the City to the Developer as evidence of the City's limited obligation to pay the City Contribution as described in Section IV.A. below, in substantially the form of Exhibit D attached hereto and incorporated herein. The Phase 2 MRO shall be issued pursuant to Section 66.0621 of the Wisconsin Statutes, shall not constitute an indebtedness of the City, and shall be payable, subject to contingencies, solely from the limited sources and to the extent provided in this Agreement and the Phase 2 MRO. X4. Phase 2 Project Costs. "Phase 2 Project Costs" means the total of all hard and soft costs of acquiring and constructing the Phase 2 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 development of the Project. Developer's initial estimate of Phase 2 Project Costs is attached hereto as Exhibit C. For the avoidance of doubt, "Phase 2 Project Costs" shall not include any amounts (i) incurred during construction of the Phase 1 Project, or (ii) expended by Developer or any Affiliate during the construction of the Phase 2 Project which are incurred with respect to the final phase of the Project (such final phase generally 3 29122739.2 referred to herein as "Phase 3"), which Phase 3 shall be subject to a separate Development Agreement. Project Plan. "Project Plan" means the "Project Plan for the Creation of Tax Incremental Finance District No. 43 (Mill on Main Redevelopment Project) in the City of Oshkosh" prepared by Ehlers, Inc. dated August 2, 2022. G. Tax Increment. "Tax Increment" has the same meaning as defined in Section 66.1105(2)(i) of the Wisconsin Statutes. P. Tax Increment Law. "Tax Increment Law" means Section 66.1105 of the Wisconsin Statutes. II. GROUND LEASE; ACQUISITION OF PROPERTY. The City and T. Wall are parties to a Purchase Agreement dated as of January 27, 2022, as amended, pursuant to which T. Wall and/or one or more affiliates of T. Wall will acquire the Project property, including the Phase 2 Property. The terms of this Agreement and the related development agreements being entered into contemporaneously regarding Phases 1 and 3 of the Project are intended to incorporate the final terms of agreement between the parties hereto with respect to the Project and the Purchase Agreement is hereby terminated. On or promptly following the Effective Date, the RDA and Developer will enter into the Ground Lease with respect to the Phase 2 Property, which will contain terms reasonably satisfactory to the RDA (as ground lessor) and Developer (as ground lessee), but in all events shall contain the following terms and conditions: 1. A term of fifty (50) years, commencing upon the date that the Ground Lease is signed (subject to subsection 5, below), but terminable upon the conveyance of the Phase 2 Property by the RDA to the Developer pursuant to Article V, below. 2. Base rent of $1 per year. 3. Developer will be responsible for all general property taxes on the Property (or, if such land is exempt from general property taxes, additional rent in an amount equal to what such taxes would be if the Property were not exempt), which accrue during the term of the Ground Lease. 4. The City will retain a right of access to the Property, upon providing written notice to the Developer (which may be by electronic mail), to the extent necessary to perform the City's obligations with respect to any required environmental remediation of the Property pursuant to Article V, below. 5. The Ground Lease may be terminated by Developer in the event that Developer is not able to secure a building permit from the City for the Phase 2 Project and has not otherwise commenced construction activities on the Phase 2 Property. 6. The Ground Lease shall terminate in the event that (i) the Phase 1 Project is not commenced before September 30, 2023, (ii) the Phase 1 Project is not completed by 4 29122739.2 December 31, 2024 (or such later date to which the deadline for completion of the Phase 1 Project shall have been extended by agreement of the Phase 1 Developer and the City), or (iii) the Phase 2 Project is not commenced by Developer on or before the date set forth in Section III.B., below. 7. Developer may purchase the Property at any time after completion of the Phase 2 Project for $1.00 and shall be required to purchase the Property after completion of the Phase 2 Project upon receipt of a COC (as that term is defined in Article V, below). III. OBLIGATIONS OF DEVELOPER. A, Phase 2 Project Description. As of the date of this Agreement Developer contemplates that the Phase 2 Project will be a mixed -use project consisting of 95 market rate apartments and 8,000 square feet of commercial space, including approximately 40 surface parking stalls, 150 underground parking and associated site improvements. Upon Developer's written request, the City will cooperate with Developer with respect to the finalization of the design, general development plans and specific site implementation plans for the Phase 2 Project. The City shall not withhold its approval of the final plans for the Phase 2 Project, nor shall the City withhold its consent to requests from Developer to modify such plans, so long as Phase 2 Project retains the same basic character as a mixed -use development as was originally proposed by Developer, the Phase 2 Completion Date (as that term is defined in Section III.B., below) is not extended, and the Minimum Phase 2 Project Costs (as that term is defined in Section III.B., below) are not reduced. D. Phase 2 Project Construction. Developer shall commence construction of the Phase 2 Project no later than September 30, 2025 (the "Phase 2 Commencement Date"). Developer shall diligently pursue completion of construction of the Phase 2 Project in accordance with applicable City ordinances and City -approved plans so that, subject to the terms and conditions set forth in this Agreement, construction of the Phase 2 Project shall be substantially complete by December 31, 2027 (the "Phase 2 Completion Date"). With respect to the development of the Phase 2 Project under this Section III.A., Developer agrees that it shall expend Project Costs in an amount of not less than $25,000,000.00 ("Minimum Phase 2 Project Costs"). 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. C. Costs and Expenses. The Developer shall be responsible for all costs related to the Phase 2 Project and any other work to be performed by the Developer under this Agreement, including all engineering, inspections, materials, labor, on -site management of Hazardous Substances (subject to Article V below), as well as all costs of monitoring and otherwise complying with any institutional controls and continuing obligations relating to the Existing Environmental conditions and/or imposed by any Case Closure. Developer shall also be responsible for payment of all City fees including building permit fees, zoning and sign permit fees, electrical and plumbing fees. Developer shall also be responsible for special assessments for certain public work done in connection with the Project as provided in Section IV.D. below (without duplication to the extent any such assessments are paid by the Phase 1 Developer), specifically (i) the reconstruction of South Main Street and East 7ch Avenue as provided by the City's Special Assessment Policy for property owners for similar projects, (ii) the installation of all laterals necessary for water, sewer 5 29122739.2 and storm sewer services for the Project, (iii) the added cost for a parking lane along South Main Street, and (iv) the incremental cost to construct the north side of East 91h Avenue in a manner which will permit angle parking adjacent to the Project. Any special assessments payable by the Developer may be paid in installments to the extent permitted by the City's Special Assessment Policy. D, Submission and Verification of Phase 2 Project Cost Information. The Developer shall submit evidence of all Phase 2 Project Costs which it intends to serve as the basis for the City Contribution to the City promptly following the completion of the Phase 2 Project. Developer's submission shall be in same form as Developer's initial budget estimate (attached hereto as Exhibit C), shall set forth actual costs incurred for each line item, and shall include the general contractor's final affidavit of payment of all debts and claims (AIA Form G706 or equivalent) and evidence of payment of all invoices, together with copies of lien waivers from each contractor or other payee having lien rights. All Phase 2 Project Costs shall be certified as true, correct and complete by Developer and subject to reasonable verification by the City. The City shall keep the documents submitted to the City described in this Section III.C. confidential to the extent possible pursuant to open records laws. IV. CITY CONTRIBUTION AND OBLIGATIONS. A. City Contribution. In each year beginning in the year following the first year in which the Phase 2 Project generates Tax Increment and ending in 2050 (or, if earlier, when the total amount of the City Contribution has been reimbursed to Developer under this Agreement), in consideration of the Developer undertaking its obligations under this Agreement, the Available Tax Increment shall be applied to make payments under this Agreement to pay the Developer the City Contribution. The City Contribution constitutes eligible "Project Costs" within the meaning of Section 66.1105(2) of the Wisconsin Statutes. The first payment shall not be made until the first day of the third November after the date of this Agreement provided that there is Available Tax Increment. Such payments shall be made in accordance with the terms of this Agreement, as further described in this Section W.A. and the Phase 2 MRO. The City Contribution shall be paid by the City only out of Available Tax Increment, subject to the provisions of this Agreement and the Phase 2 MRO. The City Contribution is a special and limited obligation of the City, and not a general obligation of the City. The Phase 2 MRO shall be issued upon the issuance by the City of a certificate of occupancy for the Phase 2 Project, in the amount set forth in Section 1.E., above. The City Contribution shall not bear interest. Developer acknowledges that, subject to the provisions of this Agreement: (i) all payments of Available Tax Increment are subject to future annual appropriation of said amounts by the City Common Council to payment hereunder; (ii) only the Available Tax Increment generated by the Phase 2 Property (and all improvements and personal property thereon) shall be used to make payments to the Developer; and (iii) if, on November 1, 2050, the amount of Available Tax Increment to be paid under this Agreement proved insufficient to pay the entire City Contribution, the City shall have no obligation or liability therefor. With respect to clause (i), above, the City covenants and agrees as follows: (a) the City Manager or their designed representative shall include the payment of the entire Available Tax Increment for each year 6 29122739.2 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 in any year until the City has made the payment due hereunder to Developer for such year in full. 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 Phase 2 Property, failure of the Phase 2 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, 2050, unless the City first pays the outstanding balance due under the City Contribution to Developer, subject to the provisions of this Agreement. Attached hereto as Exhibit E is the City's projection of revenues and expenditures for the District over its term, with the City Contribution labeled as "Phase 2 Development Incentive" thereon. Exhibit E is provided for illustrative purposes only, and Developer acknowledges that the amounts set forth thereon are estimates only. The City agrees to reasonably cooperate with Developer regarding future extensions requested by the Developer to the overall Project schedule due to factors outside of the Developer's control, including, but not limited to, acts of God, government shutdowns, pandemics, and economic recession. 13, City Contribution not to be Considered Indebtedness. In no circumstances shall the amount of the City Contribution due Developer hereunder be considered an indebtedness of the City, and the obligation of the City hereunder is limited to the Available Tax Increment which is appropriated by the City Common Council for payment of such amounts and only to the extent as provided in this Agreement. Amounts due hereunder shall not count against the City's constitutional debt limitation, and no taxes will be levied for its payment or pledged to its payment other than Tax Increment which has been appropriated for that purpose. C. City Cooperation; Approvals. City shall timely complete all necessary or required zoning, development and use reviews for the Phase 2 Project, pursuant to applicable City ordinances. City shall process, on a timely basis, each and every application submitted by, through or under Developer in connection with its development of the Phase 2 Project, including all applications with respect to necessary or appropriate licenses and permits in connection with 7 29122739.2 Developer's development of the Phase 2 Project. Without limitation, if an application is deemed deficient, City shall cooperate with Developer to ensure proper completion thereof. Likewise, City shall use good faith efforts to diligently process all such matters, to assist Developer's efforts to timely complete the Phase 2 Project as set forth in this Agreement. D. City Construction Work. The City will (i) remove overhead power lines and poles located within the District on East 7th Avenue, East 8th Avenue, between East 8th Avenue and East 9th Avenue, and along the railroad corridor and install underground electric lines; (ii) construct (subject to Wisconsin Department of Natural Resources ("WDNR') approval) approximately twenty (20) public docks and perform ancillary shoreline work along the riverfront; (iii) construct a parking lot at the trail head of the City's Riverwalk; (iv) reconstruct 9th Street along the southern boundary of the Project; (v) reconstruct South Main Street along the western boundary of the Project and (vi) reconstruct East 7u, Avenue east of South Main Street with a cul-de-sac, sidewalk and aprons to access parking areas within the Project area. The City will complete the installation of underground electric lines no later than December 31, 2024 and intends to complete the balance of the work described in this Section N.D. within the timeframes established in the Project Plan. V. ENVIRONMENTAL MATTERS; TRANSFER OF PHASE 2 PROPERTY. A. The City will enroll the property located within the District in the State of Wisconsin Voluntary Party Liability Exemption ("VPLE") program (Wis. Stat. §292.15) and will obtain a Certificate of Completion ("COC") from the WDNR for the property located within the District, including the Phase 2 Property. The expense associated with the application to enroll the Phase 2 Property in the VPLE program will be the responsibility of the City. The expense of any necessary monitoring, remediation or other work during construction of the Phase 2 Project necessary for the issuance of, or which may be required thereafter by the terms of, the COC (including, but not limited to, the preparation and submission of a Material Management Plan to WDNR) will be the responsibility of Developer. The parties acknowledge that the COC will pertain only to those substances which the City or the Developer have investigated and remediated to the satisfaction of WDNR and will not extend to a release of Hazardous Substances not included within any such investigation, including, by way of example, any release of per- or polyfluoroalkyl substances ("PFAS"), to the extent PFAS is not a subject of investigation in the VPLE proceeding. The City's environmental consultant, AECOM, has developed a memorandum to support its determination, based upon desktop evaluations of the use and history of the property located within the District, that it is unlikely that PFAS was used or discharged on the property located withing the District. AECOM is seeking a Technical Assistance Clarification from WDNR regarding its PFAS evaluation. .6. Developer acknowledges and agrees that (i) the City may not apply for the COC prior to substantial completion of the Phase 2 Project (and, potentially, not until the completion of those phases of the Project in its entirety), (ii) the COC may impose institutional controls, including, but not limited to, groundwater use restrictions and cap construction and maintenance requirements, and (iii) the Phase 2 Property is presently subject to institutional controls and continuing obligations imposed by the WDNR relating to the Existing Environmental Conditions. Based upon the foregoing, Developer (x) acknowledges the residual presence of certain Existing Environmental Conditions, and (y) agrees that certain continuing obligations 29122739.2 imposed by the WDNR related to such Existing Environmental Conditions may restrict disturbance of the subsurface of the property following the issuance of the COC. Following the commencement date of the Ground Lease, Developer shall be responsible for compliance with all applicable institutional controls and continuing obligations and any additional institutional controls and continuing obligations which may be imposed by the COC or any future Case Closure. C,, Within sixty (60) days of the later of (i) WDNR's issuance of a COC covering the Phase 2 Property, or (ii) Developer's completion of the Phase 2 Project, the parties will terminate the Ground Lease, and the RDA will convey the Phase 2 Property to Developer for a purchase price of $1.00 by general warranty deed, subject to no liens or encumbrances other than utility easements of record, zoning restrictions, deed restrictions imposed by WDNR with respect to the COC or any Case Closure affecting the Phase 2 Property, and other matters reasonably acceptable to Developer (each, a "Permitted Encumbrance"), provided that no such Permitted Encumbrance will prohibit or interfere in any material respect with the development or operation of the Phase 2 Project or the Project as a whole. The City shall be responsible for payment of any and all property and other taxes levied against the Phase 2 Property for any period(s) prior to the Effective Date. The City shall pay the premium for an owners' title insurance policy in the amount of $210,000, insuring that fee simple title to the Phase 2 Property is vested in Developer, subject to no liens or encumbrances other than Permitted Encumbrances. D. Developer shall be responsible for, and shall indemnify, defend, and hold harmless the City and its officers, employees, contractors, and agents from and against, any and all actions, claims, causes of action, costs, damages, demands by governmental entities or individuals, expenses, liabilities, losses, obligations, penalties, or suits including, without limitation, all reasonable attorney, consultant, and engineer costs or fees related thereto (collectively, "Environmental Claims"), in any way arising out of, connected with, or resulting from any Hazardous Substances, known or unknown, present on, in, at or under the Phase 2 Property or migrating to or from the Phase 2 Property from or after the commencement date of the Ground Lease; provided, however, that Developer's obligations under this Section V.D. shall not include any Environmental Claim relating to or arising from the presence at the Phase 2 Property of a Hazardous Substance that is: 1. Confined to locations and at concentrations that are permissible to remain in place without further action under applicable environmental laws or approved by WDNR to remain in place in any Case Closure or the COC, provided Developer does not exacerbate such Hazardous Substance or take or fail to take action triggering the need to respond to such Hazardous Substance; 2. Present as a result of the introduction of such Hazardous Substance by the City, whether directly or by migration from an off -site location; 3. Present as a result of any failure by the City to perform any obligation applicable to it under the terms of any Case Closure or the COC; or 4. Subject to or the subject of any exception from or release of liability provided by the COC. 0 29122739.2 VI. APPROVALS AND DEVELOPMENT STANDARDS. K 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 Phase 2 Property) all approvals and consents necessary for the City to approve the development of the Phase 2 Property, and any other approvals necessary to utilize the Phase 2 Property for the Phase 2 Project. Notwithstanding the foregoing, the City shall be responsible for the application to enroll the Phase 2 Property in the VPLE program as set forth in Section V.A., above. B. Acceptance of Agreement. The acceptance of this Agreement and granting of any and all approvals, licenses, and permits by the City shall not obligate the City to grant any additional approvals, including, but not limited to, variances, exceptions, or conditional use permits, or approve any building or use the City determines not to be in compliance with the applicable municipal codes and ordinances of the City. The City agrees to work in good faith, promptly, and diligently in connection with the issuance or grant of all such approvals, consents, permits, certificates, and any other documents as may be necessary or desirable in connection with the development, utilization, and operation of the Phase 2.Property and to act reasonably and expeditiously and in cooperation with the Developer in connection therewith; it being understood and agreed that this provision is not intended to limit the rights of the City as more particularly set forth above or in Article IX, below. C. Development Requirements. The Developer shall use the Phase 2 Property for the Phase 2 Project and in accordance with the provisions of this Agreement, and all other applicable federal, state, county, and City laws and regulations. D, Tax Exemption Forbearance. Developer acknowledges that the City is relying upon the Developer's real property taxes to generate the Available Tax Increment to fund the City Contribution. As a result, the Developer agrees that, neither the Developer nor any existing or future Affiliate or related entity of the Developer (collectively, "Developer Affiliates") shall use or permit the use of any of the Phase 2 Property in any manner which would render any of such Property exempt from property taxation, without the prior written consent of the City, which consent may be conditioned upon the obligation of the Developer, existing or future Affiliate, any related entity of the Developer or any successor owner to enter into an agreement to make a payment in lieu of taxes ("PILOT"), but may not be unreasonably withheld, so long as the PILOT agreement requires a payment to the City substantially equivalent to the real estate tax payment which would be payable with respect to the portion of ,the Phase 2 Property which is exempt from taxation were such portion of the Phase 2 Property not tax-exempt. This provision shall continue to be applicable until the termination of the District. Any amount received by the City as a payment in lieu of taxes will be treated as additional Available Tax Increment, and subject to payment to Developer under the Phase 2 MRO as provided herein. 10 29122739.2 VII. WARRANTIES AND REPRESENTATIONS. A. The Developer hereby warrants, represents, and covenants to the City: Developer is a duly organized and existing limited liability company 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 Developer, and no other or further acts or proceedings of Developer or its 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 the Developer and constitute the legal, valid, and binding agreements and obligations 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 Project that may in any material way jeopardize the ability of Developer to perform its obligations hereunder. 4. Prior to the Phase 2 Commencement Date, Developer shall demonstrate that it has sufficient funds through equity and debt financing sources to construct, operate, maintain, and fulfill the Phase 2 Project. 5. Developer shall provide, prior to execution of this Agreement, a (i) a certificate of good standing/current status issued by the appropriate government agency of the state of the Developer's organization, (ii) a certificate of authority to transact business in the State of Wisconsin, if Developer is organized in a state other than Wisconsin, and (iii) a certificate of incumbency and resolutions of the Developer stating who is authorized to sign on behalf of Developer and that the Developer is duly authorized to enter into this Agreement and undertake all of the obligations under this Agreement together with all other agreements, documents, and contracts required to be executed in connection with the transactions arising out of this Agreement. 6. Developer's current manager or another Affiliate of T. Wall shall remain as the manager of the Developer through the Phase I Completion Date, and thereafter, the replacement of Developer's manager with a party which is not an Affiliate of T. Wall shall be treated as an assignment under Section X.D., below. .6. The City hereby warrants and represents to the Developer that: 1. Subject to the approval of City Common Council, the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized and approved by the City, and no other or further acts or proceedings of the City or its officials are necessary to authorize and approve the execution, delivery, and, subject to annual appropriation by the City Common Council, performance of this 11 29122739.2 Agreement, and the matters contemplated hereby. This Agreement, the exhibits, documents, and instruments associated herewith and made a part hereof, have, if applicable, been duly executed and delivered by the City and constitute the legal, valid, and binding agreement and obligation of the City, enforceable against the City in accordance with their respective terms, except as the enforceability thereof may be limited by applicable law and as is otherwise subject to annual appropriation by the City Common Council. 2. Except for any assessments which may have been levied for work described in Section III.B., above, no special assessments or other charges of any kind have been levied against the Phase 2 Property with respect to the Project Costs as of the Effective Date. VIII. CONDITIONS TO/LIMITATIONS ON THE OBLIGATIONS. Notwithstanding anything to the contrary set forth in this Agreement, neither the City nor the Developer shall be obligated to expend any amounts under this Agreement and either the City or the Developer may suspend or terminate this Agreement or the performance of any and all of its obligations under this Agreement, without recourse by or against the other, if: A. The Wisconsin Department of Revenue fails to certify all or any portion of the creation of the District or the Project Plan ("Non -Certification"); provided, however, the City shall first make all reasonable efforts in good faith to cure such Non -Certification; or B. The District is involuntarily terminated or dissolved ("Involuntary Termination"); provided, however, the City shall first make all reasonable efforts in good faith to cure such Involuntary Termination. IX. DEVELOPER: EVENT OF DEFAULT. A., Event of Default. An "Event of Default" is any of the following: 1. Failure to Construct the Phase 2 Project. Subject to the terms of this Agreement, the Developer fails to construct the Phase 2 Project as required under Article III, above; or 2. Taxes. Any real or personal property tax or any special assessment levied or imposed by the State, County, or City against all or any portion of the Phase 2 Property is not paid prior to becoming delinquent; provided that the Developer shall have the right to contest the same in accordance with applicable law; or 3. Tax Exemption. All or any portion of the Phase 2 Property becomes tax exempt without a PILOT agreement; or 4. Breach of Agreement. The Developer breaches any provision of this Agreement or its obligations under this Agreement; provided, that written notice of the breach has been given to the Developer and the Developer has failed to cute such breach within sixty (60) days or, if a longer period is reasonably required under the circumstances, so long as the Developer has begun to cure such breach in good faith within such sixty (60) day period and thereafter diligently continues to cure such breach; or 12 29122739.2 5. Insolvency. Developer shall: (i) become insolvent or generally not pay, or be unable to pay, or admit in writing its inability to pay, its debts as they mature; (ii) make a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its assets; or (iii) become the subject of an order for relief within the meaning of the United States Bankruptcy Code, or file a petition in bankruptcy, for reorganization or to effect a plan or other arrangement with creditors; or (iv) have a petition or application filed against it in bankruptcy or any similar proceeding, and such petition, application, or proceeding shall remain undismissed for a period of ninety (90) days or more, or the Developer shall file an answer to such petition or application, admitting the material allegations thereof, or (v) apply to a court for the appointment of a receiver or custodian for any of its assets or properties, with our without consent, and such receiver shall not be discharged within ninety (90) days after its appointment; or (vi) adopt a plan for the complete liquidation of its assets. R City Options upon Event of Default. Whenever an Event of Default occurs under Section IX.A, the City may take one or more of the following actions, in the City's sole and absolute discretion: 1. Suspend or terminate the performance of any and all of its undertakings and obligations under this Agreement, including, but not limited to, making any further payments under this Agreement during the pendency of the Event of Default; provided, that (i) if the Event of Default is solely a failure by Developer to spend the Minimum Phase 2 Project Costs, the City will not terminate all of its payment obligations hereunder, but will reduce the City Contribution on a pro rata basis based upon the ratio of actual Phase 2 Project Costs to Minimum Phase 2 Project Costs; and (ii) if the Event of Default is solely a failure by Developer to complete the Phase 2 Project in time for it to be fully assessed as of January 1, 2028, the City will not terminate all of its payment obligations hereunder, but will permanently reduce the City Contribution by an amount equal to difference between Available Tax Increment actually paid to Developer on the November 1, 2029 Payment Date and the amount of Available Tax Increment which would have been paid to Developer on such date had the Phase 2 Project been completed in a timely manner. 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. C. Delay in Exercise of Rights Not Waiver. No delay or omission to exercise any right or power accruing to the City, on the one hand, or the Developer, on the other hand, 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. Teo 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 13 29122739.2 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. H'- Compensation for Costs of Breach. Whenever there is an Event of Default by the Developer hereunder, and the City employs attorneys or incurs other expenses for the collection of payment due or to become due for the enforcement or performance or observance of any obligation or agreement on the part of the Developer contained in this Agreement, the Developer shall, on demand thereof, pay to the City the reasonable fees of such attorneys and such other reasonable expenses incurred by the City. X. MISCELLANEOUS PROVISIONS. A. Incorporation of Attachments. All exhibits and other documents attached hereto or referred to herein are hereby incorporated in and shall become a part of this Agreement. R Term. Unless terminated under Article IX, above, the term of this Agreement shall begin as of the Effective Date and shall continue until December 31, 2050, unless terminated earlier in accordance with the termination by the City of the District in accordance with the Tax Increment Law. G. Review and Inspections. The City will act diligently to review all necessary approvals, licenses, and permits and to undertake any inspections duly requested by the Developer. D. Restriction on Assignment of Agreement. 1. General Restriction. Except as set forth in Sections X.D.2. and X.D.3., below, Developer may not assign or transfer its rights and obligations under this Agreement without the prior written consent of the City (which such consent, following substantial completion of the Project, shall not be unreasonably withheld, conditioned or delayed). For purposes hereof, the removal of an Affiliate of Developer as the manager of Developer shall be an assignment subject to this Section X.D.1. Upon an assignment or transfer of the Developer's rights and obligations under this Agreement in violation of this Section X.D.I., this Agreement shall terminate at the option of the City and be of no further force and effect. 2. Permitted Assignments. Following substantial completion of the Phase 2 Project, Developer may assign all of its rights and obligations to an Affiliate, without the prior written consent of the City, so long as the proposed Affiliate assignee agrees in writing to assume all of the Developer's rights and obligations under this Agreement, the Developer conveys the Phase 2 Property to the Affiliate assignee, the Developer provides the City with timely written notice and a copy of such fully executed assignment and assumption agreement, and T. Wall or an Affiliate of T. Wall remains the manager of the Affiliate assignee. 3. Collateral Assignment of Development Agreement. Developer may assign its rights and obligations under this Agreement to a lender or lenders, solely for purposes of providing collateral security for a loan issued to Developer for the purposes of the construction 14 29122739.2 and development of the Phase 2 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. H. 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") including, without limitation in any way, acts of God, war, fire, or other casualty, riot, civil unrest, extreme weather conditions, terrorism, strikes, and/or labor disputes. Upon the occurrence of a Force Majeure Event, the party incurring such Force Majeure Event will promptly give notice to the other party, and thereafter the parties shall meet and confer in good faith in order to identify a cure of the condition affecting its performance as expeditiously as possible. F, 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. G. Headings. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. H, Delivery of Notices. Except as otherwise provided herein, 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, or faxed to the parties' respective addresses as follows, provided any notice given by facsimile 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 With a copy to: Godfrey & Kahn, S.C. 100 W. Lawrence Street Appleton, WI 54911 Attn: Michael J. Lokensgard To Developer: Mill on Main Ph 2, LLC 1818 Parmenter Street, Suite 400 P.O. Box 620037 Middleton, WI 53562 Attn: Terrence R. Wall, President of its Manager 15 29122739.2 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). L Entire Agreement. This Agreement and all other documents and agreements expressly referred to herein, contain the entire agreement between the Developer and the City with respect to the matters set forth herein. This Agreement may be modified only in writing signed by all parties. T. Law Applicable. This Agreement shall be construed in accordance with the internal laws of the State of Wisconsin. K. Originals and Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original. L. 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. M_ 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. N. 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. O, Recording of Agreement. The parties hereto agree that at the City's option a memorandum of this Agreement may be recorded on the record title to the Phase 2 Property. The Developer shall upon request of the City execute and deliver any such memorandum or other document in connection with such recording. P. Developer's Obligations Run with the Land. The Developer's obligations under this Agreement and all consents, obligations, waivers, restrictions, and other requirements of the Developer as set forth in this Agreement, shall be deemed to be covenants running with the land and shall be binding upon the Phase 2 Property and the successors, assigns, and other transferees of the Developer. The rights and benefits conferred upon the Developer shall not be covenants running with the land and shall not inure to the successors, assigns, or other transferees of the Developer, except as set forth in Section X.D, above. Q. 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. 16 29122739.2 R, Third Parties. This Agreement is made for the exclusive benefit of the parties hereto, and their permitted assignees (as set forth in Section X.D.), and is not for the benefit of any other persons, as third -party beneficiaries or otherwise, and this Agreement shall not be deemed to have conferred any rights, expressed or implied, upon any other party, except as set forth in Section X.D. S. 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the date stated in the first paragraph of this Agreement. STATE OF COUNTY OF �$ aw�- } } SS } MILL ON MAIN PH 2, LLC, a Wisconsin limited liability company By: T. WALL ENTERPRISES MANAGER, LLC, a Wisconsin limited liability company, its Manager B, N Ti Personally came before me this J5fk day of 114-41 , 2023, the above -named Terrence R. Wall, to. me known to be the person w1io executed the foregoing instrument on behalf of Mill on Main Ph 2, LLC. FREDERICK TAYLOR BRENGEL Notary Public State of Wisconsin Notary Public, State of My Commission: 'I5r. 7 29122739.2 17 CITY OF OSHKOSH, WISCONSIN By: MarkA-. Rohloff, City Manager BY Diane Bartlett, City erk Approved as to form: By: A. Loren- n City Attorney STATE OF WISCONSIN } } SS COUNTY OF WINNEBAGO } Personally came before me this day of September, 2023, the above named Mark A. Rohloff and Diane Bartlett, 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. � OTAR C Notary Public, State of Wisconsin �'� UB L 1 G My Commission: 0Ud 0(0 j UZ-(p 18 29122739.2 REDEVELOPMENT AUTHORITY OF THE CITY OF OSHKOSH, WISCONSIN By: ' 6'4— Ao�� %'Vju , Chair By: I L xecutive Director STATE OF WISCONSIN } } SS COUNTY OF WINNEBAGO } Personally came befo a me ts �(v�h day of August , 2023, the above named Ma-* M Weral 6randj 'V Yi'i1 , 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, Statute of Wsconsin f` a-ao aoas My Commission: 19 29122739.2 Exhibit A Project Site Plan EXHIBIT B Legal Description of Phase 2 Parcel Lot Two (2) of Certified Survey Map No. 8005, recorded with the Winnebago County Register of Deeds as Document No. 1899509, being a part of the Southwest '/a of Section 24, all in Township 18 North, Range 16 East, City of Oshkosh, Winnebago County, Wisconsin. 29122739.2 EXHIBIT C Estimate of Phase 2 Project Costs Acauisition Costs Land Cost $1 Construction Costs Mixed -Use Building $21,163,880 TI — All Retail $507,000 On -site Work $150,000 Construction Contingency $563,099 Environmental Abatement/Soil Correction Soil Remediation $315,000 Permits/Fees Municipal Fees $138,799 Professional Services Architectural & Engineering $410,400 FF&E $75,000 Legal Miscellaneous Development $178,978 Marketing/Leasing $35,000 Owner's Representative $87,500 Soft Cost Contingency $220,994 Financing Costs Construction Period Interest $1,265,427 Loan Origination Fees & Financing Costs $131,432 Due Diligence $78,220 Equity Raising Expense $601,052 Entitlement Contribution Entitlement Contribution $1,293,564 Cash Accounts/Escrows/Reserves Management Startup/Leasing $199,504 TOTAL $27,414,850 29122739.2 EXHIBIT D UNITED STATES OF AMERICA STATE OF WISCONSIN COUNTY OF WINNEBAGO CITY OF OSHKOSH MILL ON MAIN PHASE 2 TAXABLE TAX INCREMENT PROJECT MUNICIPAL REVENUE OBLIGATION Number Date of Original Issuance Principal Amount $ [5,918,4861' FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin (the "City"), promises to pay to THE MILL ON MAIN PH 2, LLC (the "Developer"), or registered assigns, but only in the manner, at the times, from the source of revenue and to the extent hereinafter provided, the Principal Amount from time to time outstanding hereunder, on the dates hereinafter provided, subject to the terms and conditions of this Municipal Revenue Obligation ("MRO"). This MRO is issued pursuant to the terms of a Tax Incremental District No. 43 Development Agreement dated as of , 2023 among the City, the Redevelopment Authority of the City of Oshkosh, Wisconsin and the Developer ("Development Agreement"). Capitalized terms used herein without defmitions have the meanings ascribed to them in the Development Agreement. This MRO shall be payable in installments on [November 1, 1 and each November 1 thereafter (the "Payment Dates") during the Payment Term in an amount equal to the Available Tax Increment for the prior year provided that such payments are due under the Development Agreement. Payments on this MRO shall be made only to the extent that the City has received Available Tax Increment. This MRO has been issued to finance projects within the City's Tax Incremental District No. 43 ("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 , 2023 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 1 Or 25% of final Phase 2 Project Costs, if less, and subject to adjustment as provided in the Development Agreement. 29122739.2 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, 20501. 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 Revenues totaling the principal amount of this MRO 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, the City's obligation to make payments on this MRO in the event of (i) the failure to complete future phases of the Project, and/or (ii) certain defaults under the Development Agreement shall be limited as provided in Section IX.B.1 of the Development Agreement. This MRO is a special, limited revenue obligation and not a general obligation of the City and is payable by the City only from the sources and subject to the qualifications stated, incorporated or referenced herein. This MRO is not a general obligation of the City, and neither the full faith and credit nor the taxing powers of the City are pledged to the payment of the principal of this MRO. Further, no property or other asset of the City, except the above -referenced Revenues, is or shall be a source of payment of the City's obligations hereunder. Subject to the foregoing, the City may, at its option, prepay this MRO at any time. This MRO is issued by the City pursuant to, and in full conformity with, the Constitution and laws of the State of Wisconsin. This MRO may be transferred or assigned, with the consent of the City, which consent shall not be unreasonably withheld. Interests in this MRO may not be split, divided or apportioned. In order to transfer or assign the MRO, the transferee or assignee shall surrender the same to the City either in exchange for a new, fully -registered municipal revenue obligation or for transfer of this MRO on the registration records for the MRO maintained by the City. Each permitted transferee or assignee shall take this MRO subject to the foregoing conditions and subject to all provisions stated or referenced herein. 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. 29122739.2 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: C+'f y ma n go e Attest: Name: Title: 29122739.2 REGISTRATION PROVISIONS This MRO shall be registered in registration records kept by the City Clerk of the City of Oshkosh, Winnebago County, Wisconsin, such registration to be noted in the registration blank below and upon said registration records, and this MRO may thereafter be transferred only upon representation of this MRO together with a written instrument of transfer approved by the City and duly executed by the Registered Owner or his attorney, such transfer to be made on such records and endorsed hereon. Date of Registration Name of Registered Owner Signature of City Clerk 29122739.2 Exhibit E City Oshkosh, W1 Tax Increment District #43' (Mill on Main) Cash Flow ProJection Development Incentives Phase I @ Phase II @ Phase III @ Public MA 90% 90% Infrastructure & Total Outstanding Year Tax Increments Total Revenues oflncrement of Increment of Increment Land Writedown Admin. Ex endures itAYGO Annual Cumulative P Balances Year 2022 0 D 0 0 0 25,000 25,000 (25,000) (25,000) 0 2022 2023 0 0 0 0 0 5,000 5,000 (5,000 (30,000) 8,343,364 2023 2024 110,362 110,362 99,326 0 0 5,100 104,426 5,936 (24,064) 14,162,534 2024 2025 427,793 427,793 297,977 87,037 0 13,514 5,202 403,730 24,064 0 13,777,520 2025 2026 731,570 731,57D 397,303 261,110 0 57,851 5,306 731,570 0 0 18,925,213 2026 2027 913,162 913,162 397,303 348,147 76,396 85,904 5,412 913,162 0 0 18,103,367 2027 2028 1,082,931 1,082,931 397,303 348,147 229,188 102,773 5,520 1,084931 0 0 17,128,729 2028 2029 1,167,816 1.167,816 397,303 348,147 305,585 111,151 5,631 1,167,816 0 0 16,077,695 2029 2030 1,167,816 1,167,816 .7,303 349,147 305,585 111,038 5,743 1,267,816 0 0 15,026,660 2030 2031 1,167,816 1,167,816 397,303 348,147 305,585 110,923 51858 1,167,816 0 0 13,975,626 2031 2032 1,167,816 1,167,816 397,303 348,147 305,585 110,806 5,975 1,167,816 0 0 12,924,591 2032 2033 1,167,816 1,167,816 397,303 349,147 305,585 110,687 6,095 3,167,816 0 0 11,873,557 2033 2034 1,167,816 1,167,816 397,303 348,147 305,585 110,565 6,217 1,167,816 0 0 10,822,523 2034 2035 1,167,816 1,167,816 397,303 348,147 305,585 110,440 6,341 1,167,816 0 0 9,771,498 2035 2036 1,167,816 1,167,816 397,303 348,147 305,585 110,314 6,468 1,167,816 0 0 8,720,454 2036 2037 1,167,816 1,167,816 397,303 348,147 305,585 110,184 6,597 1,167,816 0 0 7,669,419 2037 2038 1,167,816 1.167,816 397,303 348,147 305,585 110,052 6,729 1.167,816 0 0 6,618,395 2038 2D39 1,167,816 1,167,816 397,303 348,147 305,585 109,918 6,864 1,167,816 0 0 5,567,351 2039 2040 1,167,816 1,167,816 397,303 348,147 305,585 109,780 7,001 1,167,816 0 0 4,516,316 2040 2041 1,167,816 1,167,816 397,303 348,147 305,585 109,640 7,141 1,167,816 0 0 3,465,282 2041 2042 1,167,816 1,167,816 397,303 348,147 305,585 109,498 7,284 1,167.816 0 0 2,414,247 2042 2043 2,167,816 1,267,816 397,303 305,585 457,499 7,430 1,167,816 0 0 1,711,360 2043 2044 1,167,816 1,267,816 397,303 305,585 457,350 7,578 2,167,816 0 0 1,008,472 2044 2045 1,167,816 1.167,816 397,303 305,585 457,199 7,730 1.167.816 0 0 305,585 2045 2046 1,167,816 1,167,816 305,595 854,347 7,884 1,167,816 0 0 0 2046 2047 1,167,816 1,167,816 1,159,774 8,042 1,167,816 0 0 0 2047 2048 1,167,816 1,167,816 1,159,613 8,203 1,167,916 0 0 0 2048 2049 1,167,816 1,167,816 1,159,449 8,367 1,167,816 0 0 0 1 2049 2050 1,167,816 1,167,816 1,159,282 8,534 1,167,816 0 0 _ 0 20so Total 28,957,771 28,957,771 8,343,364 5,918,496 5,9011,107 8,679,549 210,256 28,967,771 Total Incentive Present Value @5.25% Discount Rate 4,270,000 3,140,000 Projected District Closure 2,66D,000 10,070,000 Total Table 3 - Cash Flow Tax Incremental District No. 43 Project Plan City of Oshkosh Prepared by Ehlers Page 128 Exhibit F Ground Lease Agreement Document Number 1 Document Title This LEASE AGREEMENT (the "Lease"), made and entered into this day of April, 2023, is by and between the City of Oshkosh, (CITY) a Wisconsin municipality, and the Redevelopment Authority of the City of Oshkosh, (RDA), with their principal offices located at 215 Church Ave., P.O. Box 1130, Oshkosh, Wisconsin 54903-1130, (collectively "Lessor") and The Mill on Main PH 2, LLC, a Wisconsin limited liability company ("Lessee"): Recording Area Name and Return Address City Attorney's Office 215 Church Ave. P.O. Box 1130 Oshkosh, WI 54903-1130 Parcel No. RECITALS 1. RDA owns real property located along S. Main Street and comprised of the parcel number(s) identified above (Project), in the City of Oshkosh, Winnebago County, Wisconsin. 2. The Project includes real property to be redeveloped described as attached Exhibit A and fully incorporated into this Lease. Lessor and Lessee, together with the City of Oshkosh, have entered into a Development Agreement ("Development Agreement") dated April , 2023, and recorded with the Winnebago County Register of Deeds as Document Number on the day of April, 2023, for the purpose of constructing a mixed use development on the Leased Premises. A copy of the Development Agreement is not attached hereto but Lessee acknowledges that it read and signed the Agreement, retains a copy of the Development Agreement, is familiar with it and agrees to be bound by its terms as it may pertain to the development of the Leased Premises. A copy of the development footprint is attached as Exhibit B and incorporated herein. 4. Environmental remediation is required to be performed on the Leased Premises and certain funding sources for this environmental remediation require that Lessor continue to retain ownership of the Leased Premises until remediation is completed. 5. It is in both parties' interests that Lessee begin construction of the proposed development and related improvements on the Leased Premises prior to the completion of the environmental remediation, and the purpose of this Lease is to allow this commencement of construction. The development of the Leased Premises described in the Development Agreement and in this Lease may be financed through a lender (Lender). The Lender may request and be granted an interest in this Lease up to and including the right to assume Lessee's rights and obligations under this Lease and under the Development Agreement. However, the assignment of any Lessee interest in the Leased Premises must be related to the development and pursuant to the terms of the Development Agreement, must be contingent with such transfer becoming effective in the event of a default by Lessee, and must be accompanied by a simultaneous written assumption by Lender of Lessee's obligations under the Development Agreement. All assignments, transfers, conveyances of the Leased Premises will be subject to continuing obligations under the Development Agreement. AGREEMENT 7. All Recitals are incorporated into this Agreement. 8. In exchange for one dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Lessor agrees to lease to Lessee, and the Lessee agrees to accept such lease of the property identified and described as the Leased Premises on the terms and conditions expressly set forth and referenced herein. 9. The term of this Lease shall commence on the date it is executed by all parties, and shall end on the earlier of: (a) the date on which Lessee, or a Lender as may otherwise be allowed under a lease assignment, closes on its purchase of and acquires full ownership interest in the Leased Premises; (b) the date the Development Agreement is terminated by agreement of the parties; (c) if the Development Agreement is terminated due to failure of Developer to proceed with the Project as provided in Section IX.A.1 of the Development Agreement, the date the Development Agreement is terminated; or (d) the date that is fifty years after the date of commencement of this Lease. 10. Pursuant to the terms of the Development Agreement, Lessor and Lessee are obligated to cooperate with respect to remediation actions at the direction of the Wisconsin Department of Natural Resources relating to existing hazardous substances on the Leased Premises (Remediation). The Remediation shall be performed pursuant to the terms of the Development Agreement, the terms of any grants utilized for this purpose, and the terms required by the Wisconsin Department of Natural Resources (WDNR). Lessor and Lessee will each take all necessary actions to obtain a Voluntary Party Liability Exemption (VPLE) from the WDNR for the Leased Premises for any parcel on which remediation is deemed necessary. Remediation of the site, if necessary, will not be completed until construction of the improvements on the Leased Premises is completed, and the Leased Premises cannot be conveyed by Lessor until the Remediation is determined to be unnecessary or is complete and any applicable grants used for Remediation are closed out. Unless otherwise agreed upon in writing by the Parties, Lessee shall close on its purchase of the Leased Premises upon (1) a determination that remediation is unnecessary and completion of the Phase 2 Project; or (2) upon on the earliest practical date after all of the following events occur: (a) completion of the Phase 2 Project, (b) the issuance of the Certificate of Completion, and (c) the closeout of any Remediation grants;. It is expected that the grants will be closed out by the Agencies within one hundred twenty (120) days after the issuance of the Certificate of Completion. All parties agree that the timely expiration of this Lease, and conveyance of the Leased Premises, is in everyone's best interest and will work in good faith towards that end. Lessor shall convey the Leased Premises to Lessee pursuant to this Lease and terms of the Development Agreement. The Parties acknowledge that if the Certificate of Completion is not received, or the closeout of any Remediation grants does not take place, Lessee, at its election, is under no obligation to close on the purchase of the Property and may continue to lease the Leased Premises for the remainder of the fifty year lease term under this Lease, with any remaining environmental clean-up, if any, being the responsibility of the City. 11. There shall be no Lease payments due from Lessee to Lessor other than the payment identified in paragraph number 8, above, except as may be required by this Lease or the Development Agreement during the term of this Lease. 12. The Lessee shall be allowed to construct and operate apartment facilities, as well as develop business buildings and offices, retail spaces, and any and all related improvements on the Leased Premises as approved by Lessor pursuant to the terms of the Development Agreement and consistent with other government rules and regulations. No agreements by Lessee with others which purport to allow the use of the Leased Premises in a manner contrary to this Lease, or to the Development Agreement, shall be allowed, or enforceable, against Lessor or in rem against the Leased Premises. 13. During the term of this Lease, the Lessor shall be allowed reasonable access to the Leased Premises for any purpose related to any municipal or police power function, to meet its obligations under this Lease or the Development Agreement, or to function in its capacity as the owner of the Leased Premises. Lessor shall make all reasonable efforts to not materially disrupt Lessee's allowed use of the property. Lessor shall provide reasonable written notice to the Lessee prior to accessing the premises. 14. During the term of this Lease, Lessee shall be deemed the owner of all.improvements constructed on the Leased Premises by Lessee, subject to any legal rights and assignments to third —parties. Lessor may take actions to gain ownership of improvements upon the abandonment of the development and related interests by Lessee, assignees, or others subject to the rights of the lenders and providing known interested parties notice and a right to cure default or to affirm interest in the Leased Premises. 15. The Lessee has had sufficient access to the Leased Premises and as a result is or should reasonably be aware of all aspects related to its condition. The Lessor makes no express or implied promises or warranties related to the condition of the Leased Premises except those with respect to matters identified in the Development Agreement. 16. Lessee assumes full and complete responsibility for any development activities, fixtures, or improvements to the Leased Premises prior to the date Lessee purchases the Leased Premises pursuant to this Lease. 17. Lessee acknowledges that it assumes the responsibility of ensuring that its investments in or on the Leased Premises are protected through separate agreements with its Lenders or other measures allowed by law. 18. Lessee shall have all necessary insurance with sufficient limits which will cover its employees, actions and property on the Leased Premises. Lessee shall hold the Lessor harmless from any accident or incident involving Lessee, its employees or agents, or any dispute with any 3rd party resulting from any action of Lessee, its agents or assigns, occurring during the term of this Lease. 19. The Lessee is responsible for paying all utilities, costs, expenses, and obligations of any kind except those incurred by or that are the responsibility of the City during the term of and under this Lease and the Development Agreement. The Lessee is further required, at its expense, to keep and maintain in good order, condition, and repair the Leased Premises and all improvements constructed thereon, including but not limited to grounds and lawn maintenance and clearing of public sidewalks adjacent to the parcel (Riverwalk and park areas shall be maintained by the City). 20. Lessee shall be responsible to pay all general property taxes on the Property (or, if such land is exempt from general property taxes, additional rent in an amount equal to what such taxes would be if the Property were not exempt), which accrue during the term of the Ground Lease. 21, Lessee shall not allow any encumbrance to be filed on or against the Leased Premises, including mortgages, easements, or similar restrictions, except for the assignment to Lenders provided under Section 6 of this Agreement. 22, All terms of the Development Agreement pertaining to the Leased Premises are incorporated into this Lease, including but not limited to representations and warranties. Lessor and Lessee may pursue any breach or default of this Lease or of the Development Agreement as allowed by law. 23. Lessee's restrictions on the use of the Leased Premises during the terms of this Lease are set forth in the Development Agreement, and are specifically incorporated into this Lease. All other terms, conditions, benefits, burdens, and agreements between these parties relating to the Leased Premises shall remain in full force and effect, without alteration. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first above written. LESSEE: LESSOR: The Mill on Main Ph 2, LLC City of Oshkosh This document drafted by: Lynn A. LGrcnson City Attorney Oshkosh, Wisconsin 5490 By: Mark A\Rohloff, By: Jessi Balcom, ity Clerk Oshkosh Re evelop 7 uthority By: C air By: Kelly Nieforth, Executive Dire tc (Riverwalk and park areas shall be maintained by the City). 20. Lessee shall be responsible to pay all general property taxes on the Property (or, if such land is exempt from general property taxes, additional rent in an amount equal to what such taxes would be if the Property were not exempt), which accrue during the term of the Ground Lease. 21. Lessee shall not allow any encumbrance to be filed on or against the Leased Premises, including mortgages, easements, or similar restrictions, except for the assignment to Lenders provided under Section 6 of this Agreement. 22. All terms of the Development Agreement pertaining to the Leased Premises are incorporated into this Lease, including but not limited to representations and warranties. Lessor and Lessee may pursue any breach or default of this Lease or of the Development Agreement as allowed by law. 23. Lessee's restrictions on the use of the Leased Premises during the terms of this Lease are set forth in the Development Agreement, and are specifically incorporated into this Lease. All other terms, conditions, benefits, burdens, and agreements between these parties relating to the Leased Premises shall remain in full force and effect, without alteration. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first above written. LESSEE: The Mill on Main Ph 2, LLC LO-A Terrence R. Wall, T. Wall Enteroris( This document drafted by: Lynn A. Lorenson City Attorney Oshkosh, Wisconsin 54903 of r, LLC, its Manager LESSOR: City of Oshkosh By: Mark A. Rohloff, City Manager By: f.)aj Ma� Jessi alcom, City Clerk Oshkosh Redevelopment Authority By: _ 4 Chair By: Kelly Nieprth, Exe 0 Director Exhibit A Legal Description of Phase II Parcel Lot 2 of Certified Survey Map No. 8005, recorded with the Winnebago County Register of Deeds as Document No. 1899509, being a part of the Southwest ''/a of Section 24, all in Township 18 North, Range 16 East, City of Oshkosh, Winnebago County, Wisconsin. 1W14011:31r71 Description of Project Plan Tax Incremental District ("TID") No. 43 ("District") is a proposed 13.45-acre Blighted Area District located on the Fox River generally east of S. Main Street, north of E. 10t' Avenue and west of Pioneer Drive in the Sawdust District. The District will be created to pay the costs of development incentives and public infrastructure to permit a mixed -use redevelopment project with 291-multifamily apartment units and 21,800 square feet of commercial space ("Project") to be developed by The Mill on Main, LLC ("Developer"). The Project will include construction of a private clubhouse, pickleball courts, an amphitheater, Riverwalk connection and other amenities. Property in the District was previously identified for redevelopment in the 2003 South Shore Redevelopment Area Project Plan and the 2020 Sawdust District Master Plan.