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HomeMy WebLinkAboutTax incremental-Mile Kimball ProjectDEVELOPMENT AGREEMENT lilldllll!II�PIIIIIII'lIIVI � °� Document Number I Document Title Development Agreement between the City of Oshkosh, Wisconsin, a Wisconsin municipal corporation (the "City"), and Miles Kimball, LLC, a Wisconsin limited liability company (the "Developer") DOC## 1861575 NATALIE STROHMEYER REGISTER OF DEEDS WINNEBAGO COUNTY, WI RECORDED ON: �:-:518/30/2021110::�32AM, = ,°_RECORD' �`27 �,Qv.00 OCT 2 � 2021 RecordingACsiTY CLERK'S OFFICE Name and Return Address City Attorney Office PO Box 1130 Oshkosh, WI 54903-1130 90301300000 Parcel Identification Number (PIN) 8 W. 9 h Ave Parcel Number 90301300000 All of Lot Two (2) of Certified Survey Map No. 6242 recorded as Document No. 1475152, Winnebago County Register of Deeds, located in the fractional Southwest corner of Section 24, Township 18 North, Range 16 East, Third Ward, City of Oshkosh, Winnebago County, Wisconsin. This instrument drafted by: Lynn Lorenson Oshkosh, WI 54903-1130 August 20, 2021 <-Q TAX INCREMENTAL DISTRICT NO. 40 DEVELOPMENT AGREEMENT (MILES KIMBALL BUILDING PROJECT) This Development Agreement (the "Agreement") is made this-Wday of August, 2021 (the "Effective Date"), by and between the CITY OF OSHKOSH, WISCONSIN, a Wisconsin municipal corporation (the "C"), and MILES KIMBALL, LLC, a Wisconsin limited liability company (the "Developer"). RECITALS WHEREAS, the City has established Tax Incremental District No. 40 (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 is acquiring a parcel of real property located within the District which is more particularly described on Exhibit A attached hereto (the "Pro g "); and WHEREAS, Developer intends to redevelop the District by rehabilitating a 24,660 square foot, four-story industrial building located on the Property for use as a 28-unit market rate multi- family building, 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. 25075016.3 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: A. Agreement. "Agreement" means this document and all of its component parts and exhibits. 33, 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. C, 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. 1), City Contribution. "City Contribution" means payments to be provided from the City to the Developer from Available Tax Increment pursuant to the terms of this Agreement, in a total principal amount of One Million One Hundred Fifty Thousand and No/100 Dollars ($1,150,000.00), together with interest thereon at the rate of 3.65%, commencing on the date of issuance of the City MRO. E. City MRO. "City MRO" means the Municipal Revenue Obligation issued by the City to the Developer as evidence of the City's limited obligation to pay the City Contribution, in substantially the form of Exhibit D attached hereto and incorporated herein. The City MRO shall be issued pursuant to Section 66.0621 of the Wisconsin Statutes, shall not constitute an indebtedness of the City, and shall be payable, subject to contingencies, solely from the limited sources and to the extent provided in this Agreement and the City MRO. F. District. "District" means all of that property, including the Property, included in Tax Incremental Finance District No.40 as described in the Project Plan. G, Payment Dates. "Payment Dates" means November 1 of each year, commencing on the third November 1 after the Effective Date of this Agreement, up to and including November 1, 2049. H, Payment Term. "Payment Term" means the term commencing on the first day of the third November after the Effective Date of this Agreement and continuing on the same day of each year 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, 2049. For example, for illustrative purposes only, if the Effective Date is April 15, 2021, the Payment Term would run from PJ 25075016.3 November 1, 2023, through the first to occur of the following: (1) entire amount of the City Contribution; or (ii) November 1, 2049. "Q tile our- 1- Project. "Project" unit markethate imultnfam multi -family buof a ldingu ogetherfwith story industrial building for use as a 28 associated site improvements. 1, Project Plan• "Proien" means the "Project Plan for the Creation of Tax Incremental Finance District No. 40 in the city B att0 attached hereto"prpared incorporated herein. y Ehlers, [January 8, 20211, which is described on Exhibit Proect Costs. "Projec_Co ts" means the total of all hard costs and soft j costs to be incurred by Developer in constructing texpenditures) ae minaryaexpendituresi (such as expenditures that could be treated as capita penditures)nd pr architectural, engineering, environmental stunconnection studies, surveying, with the construction of the Project), expenses, and similar costs that are incurred and all other direct and indirect costs of the development of the Project. I_ Pro e "Pro e " 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. N, Tax Increment Law. "Tax Increment Law" means Section 66.1105 of the Wisconsin Statutes. payment to Developer of the II. DEVELOPER'S OBLIGATIONS. A, Acquisition and Fi.ancin� of Developer Property. Developer shall acquire n the Property and secure commitments for financing all Project Costs on or before August 31, 2021. B. Project Construction. Developer shall commence construction of the Developshall Developer Project on or before October 1, Project iOaccordannce cie wrth, pplicable City orddi ances iligently pursue completion of construction of the substantially and City -approved plans for the Property so that in any case or purposes r hereoon shall f, e substantially completed by September 1, 2022 (the Completion Date"). For cy rthe `� eveloper agrees complete" shall mean the issuance of a n certificate amount of not less than FourM'llioroject.n Se en Hundred that is shall expend Project Costs Seventy Five Thousand and No/100 Dollars ($4,750,000.00) ("Minimum Project Costs"). C. Costs and Expenses. The Developer shall be responsible for all costs related to the Project and any other work to be performed materals and labor. Developer under dDevelopergrsha lebe including all engineering, inspections, 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. 3 25075016.3 D. WO �xlithin 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, and other permits necessary to perform such work, and the cost of any letter of credit, bond, or other security within City rights of way. All such which the City requires to be posted in connection with work spec ficat ons and plans approved by work will be performed in accordance with applicable City the City's Engineering Department. erifation osts. Developer shall, upon completion of the Yam: Vicof Project C 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 payme nt. the erm of is Submission of Rentaln Information. annual basis,psett ngtforth the hamougnt of rent Developer shall provide a report to the City on rent range of the apartments, as well as collected during the preceding calendar year, organized by g a report setting forth the total number of units rented and vacant during each month of the preceding year, also organized by rent range. III. CITY' S OBLIGATIONS. City Contribution. In each year during the Payment Term, in consideration A. of the Developer undertaking its obligations under this Agreement, the Available Tax Increment payments shall, subject to annual appropriations by the City Comoro Cocouncil, be applied ntribution. The City Contribution under this Agreement to pay the Developer the City of the constitutes eligible Projects Costs within the meaningrs Section payment Date, ana hall blimited Wisconsin o Statutes. The first payment shall not be made until eloper the amount of Available Tax Increment. Devssessmacknowledges of he PropertyI s value as of January le City Contribution will be based upon a partial assess Agreement, as further 2022. Such payments shall be made in and the City MrdROeThe amountf theh the terms of tCity Contribution shall be described in this Section p' a ' One Million One Hundred Fifty Thousand and No/1001 bear interestars a0t h 0rate 00)oThe h65% City starting shall be issued upon completion of the Project and shent thereo ursuant to Section from the date of verification by the City of shalloject Costs bepad by(and the City only out of the Available Tax above. The City ContributionAgreement and the City MRO. The City covenants Increment, subject to the provisions of this Agrsentative shall and agrees as follows: (a) the City Manager or his each hrepre 1 ded during the PaymentTerme payment of the entire Available Tax Increment for y ear's budget, (b) if the City's in the applicable budget request recommendation for the following y annual budget does not in any year provide for appropriation of l use it Available ax Increment faith efforts to make the payment due to Developer in that year, days prior to the date the budget is presented to notify the Developer of that fact at least thirty (30) y p fund of to the City Common Council for final approval, and from fundhe District (and in the all improvements District and attributable to the Available Tax Increment generated ty has personal property thereon) shall not be used to payany Available Taxother Incrementgct Costs teneratediby the p ear, th applied to the payment due hereunder, in any y Agreement provides will District (and all improvementspersonal property thereon) that this p be applied to payment due hereunder. S 25075016.3 acknowledges that, subject to the provisions of this Agreement: Developer the futurero riation of said ubji all payments of Available Tax Increment are sent duect ohereunder; () only he Available Tax () ment d improvements and personal property thereon) shall be amounts by the City Common Council t payment Increment generated by the District (and all imp a the entire City make Payment to the Developer; and (iii) if, on oved insufficien�to p theamountoft e used to ma p Yunder eement r Available on, thent to be Cityhaven obligation or liability therefor. Contribution, 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 Pay a portion of the City Contribution equal to the provisions of this Agreement, the City shall p y appropriated by the City Common Council for the payment amou nt of Available Tax Increment due that payment Term year. 2. The City shall take no action to terminate ° balancevdue u e the derthe early prior to November 1, 2049, unless the City first pays the outstanding but not limited to, the City Contribution, subject to the provisions of this Agreement, including, annual appropriation of the City Common Council of such outstanding balance due. Attached hereto as Exhibit__ E is the City's projection of revenues and City Contribution labeled as "Project MRO" expenditures for the District over its term, with the ores only, and Developer acknowledges that thereon. Exhibit E hereon are estimates ovided for illustrative Only - the amour B. Ci Contribution Adjustment. The City Contribution amount year Internal Rate of er to the City, a copy of which is attached hereto as Developer's demonstrated financial need, shown on the proforma ten (10 Y � Performance Return ("I1") submitted by the Developer Exhibit F. Developer and the City agree that to the extent that the Project s per 'deviates from the proforma IRR, the City Contribution maybe adjusted pursuant to this materially dev Secti-- on B' � anniversary of he On or before the thirtieth (30`h) day following the tenth (10 ) Date the "Tests to"), Developer shall provide the City ase1d on actual income th copies of internally Completion D ( complete annual cash flow p eriod from prepared fmancial statements and a comp le in Exhibit F for the Project for the p business days thereafter, Developer and the expenses (in a format consistent with the example y date, and the the Completion Date to the Test Date. Within ten (10) as set forth on Exhibit F , City shall, using information from the mat Promanciatectt statements IRR (as flow up methodology utilized to calculate the origin 1 anyinformation that is not lying the Approved Assumptions (as defined below) to Supply and app known as of the Test Date, calculate the actual IRR as of the Test a If the actual IRR calculated on the Test Date as proposed based upon the updated exceeds fifteen percent (15%), the City shall reduce cent e15 %C a Contribution IRRtover the Payment analysis e percent ( ) necessary to allow Developer to achieve a fifteen p Term (the "A roved Contribution"). 25075016.3 As used herein, the "Approved Assumptions" shall be the terminal capitalization rate, brokerage commission at 5% and all other assumptions agreed upon by Developer and the City (but expressly excluding refinancing, sale or recapitalization amounts, as noted below) as of the date the proforma MR is updated, and absent such agreement, as determined by an independent MAI appraiser with not less than ten (10) years' experience appraising commercial and multi- family properties in the Appleton -Oshkosh -Neenah metropolitan statistical area. All costs proceeds or independent appraiser shall be shared equally by the City and the Developer. Any distributions received by the Developer receivedebut rathergincludedeaspitalization additional �onsiderat on e Project shall not be recognized on the date received on the Test Date. C, 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 for that payment or ledged to its payment other than the Tax Increment which has been appropriatedpurpose. IV. APPROVALS AND DEVELOPMENT STANDARDS. A. Approval of Public Bodies. The Developer shall obtain from the City and all other appropriate governmental bodies (and all other councils, boards, and parties having a right to control, permit, approve, or consenheothe development the development oDeveloper Property) all f the Property, and any approvals and consents necessary for City approve other approvals necessary to utilize the Property for the Project. B. Acceptance of Agreement. The acceptance of this Agreement and granting of any and all approvals, licenses, and permits by the City shall not obligate the City to grant any additional approvals, including, but not limited to, variances, exceptions, or conditional use permits, or approve any building or use the City determines not to be in compliance with the applicable municipal codes and ordinances of the City. The City agrees to work in good faith, promptly, and diligently in connection with the issuance or. grant of all such approvals, consents, permits, certificates, and any other documents as may be necessary or desirable in connection with the development, utilization, and operation of the Property and to act reasonably and expeditiously and in cooperation with the Developer in connection therewith; it being understood and agreed that this provision is not intended to limit the rights of the City as more particularly set forth above or in Article VII, below. C. Development Requirements. The Developer shall use the Property for the Project and in accordance with the provisions of this Agreement, and all other applicable federal, state, county, and City laws and regulations. I). 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, 25075016.3 "Developer Affiliates") will pursue, assist, support, or be involved in any federal, state, or local, 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. A. The Developer hereby warrants, represents, and covenants to the City: I. 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 and debt 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 25075016.3 all other agreements, documents, and contracts required to be executed in connection with thL transactions arising out of this Agreement. B. 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/LEMTATIONS 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: 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. VII. DEVELOPER: EVENT OF DEFAULT. A. Event of Default. An "Event of Default" is any of the following: 1. Failure to Construct the Project. Subject to the terms of this Agreement, the Developer fails to construct the Project consistent with Article H, 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 Tax Exemption. All or any portion of the Property becomes tax exempt; or 25075016.3 Breach of Aareement. The Developer breaches any provision of this 4. provided, however, that written notice of the Agreement or its obligations under this Agreement; psuch breach within to the Developer and the Developer has failed ttheucircumstances and the 11 breach has been given to cure such sixty (60) days or such longer period as is reasonably require Developer has begun to cure such breach in good faith and is diligently continuing breach. p operate the Project 5. Continuous Operation. The Developer ceases redeling, or Force fora period of sixty (60) consecutive days for reasons other than casualty, Majeure. following actions, in the City's sole and B. Ci O tions u on Event of Default. Whenever an Event of Default occur under Section VII.A, the City may take one or more of th absolute discretion: 1. Suspend or terminate the performance of any and all of its eement, including, but not limited to, making any Agr undertakings and obligations under tl dur' g the pendency of the Event of Default. further payments under this Agr le al or administrative action, at law or 2 Take any action, including g Performance and appear necessary or desirable to the City to enforce p eement or in equity, which may pp Developer under this Agreement observance of any obligation, agreement, or covenant of the Develop not be exclusive of any other remedy to seek remedy for its breach. Such rights andall remedies u cumulative and shall be n addition to equity or remevery dies, and such rigunder hists and dies Agreement or now or hereafter existing at law o other right and remedy given or by statute. the other party shall C. Del in Exercise of Rights Not Wuiori any default by delay or mission to exercise to the City or the Developer p Y right and any right or power accruing expedient as long as the right or power or shall be construed to be ma abe deemed expt an such ng impair any suchg power may be exercised from time to time and as often as default is continuing. Agreement is breached by either Written Waiver Re_ Q�d n thetheeothernt 1party, such waiver shall be limited other concurrent, previous, party and such breach is expressly waived n writing Y an e portion P vi this to the particular breach so waived and Asha�y�°ta q eeS acquiescence nwaive notenforcingoner like defense or or subsequent breach hereunder. basisforthe application of estoppel or diver. Any waiver of any provision of this Agreement by the City must be Agreement shall not provide otherwise constitute w express and in writing. efault Coin ensation for Costs of Breach. attoWherneys orvincur, other expenses there is an Event of jfor the I `° employs attorneys • erformance or observance of by the Developer hereunder, and the CityAgreement the collection of payment due or to become due for the enforcement conta. ed in this Agr Sand such agreement on the part of the Develop any obligation or a to the City the reasonable fees of such attorney Developer shall, on demand thereof, Pay e City. other reasonable expenses incurred by M 25075016.3 VIII. MISCELLANEOUS PROVISIONS. A, Incorporation of Attachments. All exhibits and other documents attached hereto or referred to herein are hereby incorporated in and shall become a part of this Agreement. B. Tenn. Unless terminated under Article VII, above, the term of this begin as of the Effective Date and shall continue until November 1, 2049, unless Agreement shall be terminated earlier accordance with the termination by the City of the District in accordance with the Tax Increment Law. C, Review and Inspections. The City will act diligently to review all necessary approvals, licenses, and permits and to undertake any inspections duly requested by the Developer. Restriction on Assig ment of Agreement. I, 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 the City so posed to an Affiliate without the express prior written consent ume all of the Developer' gobligationas the s under Affiliate assignee or transferee agrees in writing this Agreement and the Developer provides theAgreement, writtenty with timely shall not be assignable (other than for fully executed assumption. Otherwise, this elow) without express collateral purposes pursuant to Section X.Da s betion of the City.eAll of the rights and obligations ritten consent of the City, which shall be in the sole and absolute under this Agreement must be assigned or transferred together, if at all, and may not be assigned separately. 2, Collateral Assi ment 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. shallAny such assignment the terms ocontingent the loanupon, or So long as ecome effective only following, an event of default Developer under Developer has notified the City of the identity s ender�of ct information any Event of Defaultr, the City will by Developer use reasonable efforts to notify Developeron hereunder. Any such assignment shall be ofthe right to receive any ofits on obligations tothe Co ntheuC'ty only, and no such assignment shall relieveper hereunder. E, Force Majeure. A party shall be excused from its obligations under this Agreement if and to the extent and duringsuch time as thparty ide of the party's �easo ableperform tcontrol (each or is delayed in doing so due to events or conditions out a "Force Majeure Event") based solely upon acts of God, smokes and labor,fire, or disputes�Upon the other ccurrence of y, riot, civil unrest, extreme weather conditions, terronsm, notice to a Force Majeure Event, the party incurringshall meet and confer Event will promptly n good faith in order identify a the other party, and thereafter the parties cure of the condition affecting its performance as expeditiously as possible. _P. 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 10 25075016.3 Available Tax Increment for the calendar year of the request; provided, however, the City is only required to submit information in its possession and is not required to reply to any request prior to December 15 of any calendar year. G. Time of the Essence. Time is deemed to be of the essence with regard to all dates and time periods set forth herein and incorporated herein. H. Headings. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. L 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: llorensonga 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: mlokensgardAgklaw.com To Developer: Miles Kimball, LLC 327 Randolph Drive Appleton, WI 5913 ®C d Q Attn: , ' -- Facsimile o. Email: YU r'C S With a copy to: 25075016.3 11 he rst business ay after and shall be deemed given upon Personal delivery, h thelovernight delivery y service,fand upon cation or registration, the first business day after deposit acknowledgement of receipt by facsimile or electronic mail (provided notice is promptly sent by one of the other methods). Z'. Entire Agreement. This Agreement d te t ohhisement witocuments to h respect to e delivered hereunder constitute the sole and entire agreementof the parties the subject matter contained herein, and supersede lto such or s subject matter. contemporanIn the event ous flany and agreements, both written and oral, with respect inconsistency between this Agreement and the documentsn to be lonlyan writing signed by hereunder, or the Exhibits, this Agreement will control. This Agree may bemodified all parties. K. Law Applicable. This Agreement shall be construed in accordance with the internal laws of the State of Wisconsin. L. Originals and Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original. ly Amendments to Agreement. ed b Agreement ethe appr pTiatel not be amended representatives of each but only by the written agreement of the parties sign y party and with the actual authority of each party. N. Limitation on Liability. The parties acknowledgeandoand agree that rity�an dnn out any of the provisions of this Agreement or in exercising any power them thereby, there shall be no personal liability and agreedhatsin suchsma ers they act as employees, or representatives, it being understood agents and representatives of the applicable party. 0, No Partnership. This Agreement specifically otan create any or partnership or joint venture between the parties, or render an party liable for obligations of the other party. p, Recording of Agreement. The parties hereto agree that at the City's option a memorandum of. this Agreement, including party. Thto the Restrictive e Developer shall upon request of he recorded on the record title to the Devnant, may be eloper Property. andum or other document in connection with such City execute and deliver any such memor recording. Q. Developer's Obli ations Run with the Land. The Developer's obligations rements under this Agreement and all consents, obligations, hall be deemed o be,cov nantheivnninglwih the of the Developer as set forth in this Agreement, land and shall be binding upon the Property and the deurs, assigns5 and Devel per shall be covenants transferees of the Developer. The rights and benefits conferred upon the 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, e 12 25075016.3 R, Severance. If any portion of this Agreement is deemed invalid or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement shall remain in full force and effect and enforceable to the fullest extent permitted by law. S. Third Parties. This Agreement is made for the exclusive benefit of the parties hereto, and their permitted assignees (as set forth in Section 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. T. Neutral Construction. This Agreement is the result of a negotiated agreement by the parties and prior to the execution of this Agreement each party had sufficient opportunity to have review of the document by legal counsel. Nothing in this Agreement shall be construed more strictly for or against either party because that party's attorney drafted this, Agreement or any portion thereof or attachment hereto. I.T. 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 25075016.3 IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the date stated in the first paragraph of this Agreement. MILES KIMBALL, LLC STATE OF WISCONSIN I I SS COUNTY OF H4C I Personally came before me this o?JS-1- day of [,1 2021, the above -named h o Gd , to me known to be the person w 10 executed the foregoing instrument. Notary Public, State of My Commission: -- ®SPRY Oro, SARAH ENDRIES OF WIS;_ 14 25075016.3 CITY OF OSHKOSH, WISCONSIN By: Mark Rohloff, City Manager By: u Pamela R. Ubrig, City Clerk Approved as to form: B : yo A. Lorenson, ity Attorney STATE OF WISCONSIN } } SS COUNTY OF WINNEBAGO } Personally came before me this day of .ATnS , 2021, the above named lbQayvr and City Clerk, to me known to be the persWhouted the foregoing instrument. N ate of Wisconsin My Commission: 12115 /?A23 _ 15 25075016.3 Description of Property All of Lot Two (2) of Certified Survey Map No. 6242 recorded as Document No. 1475152, Winnebago County Register of Deeds, located in the fractional Southwest corner of Section 24, Township 18 North, Range 16 East, Third Ward, City of Oshkosh, Winnebago County, Wisconsin. Parcel No. 90301300000 25075016.3 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: A. Agreement. "Agreement" means this document and all of its component parts and exhibits. F3. 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. C, 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. D, City Contribution. "City Contribution" means payments to be provided from the City to the Developer from Available Tax Increment pursuant to the terms of this Agreement, in a total principal amount of One Million One Hundred Fifty Thousand and No/100 Dollars ($1,150,000.00), together with interest thereon at the rate of 3.65%, commencing on the date of issuance of the City MRO. E. City MRO. "City MRO" means the Municipal Revenue Obligation issued by the City to the Developer as evidence of the City's limited obligation to pay the City Contribution, in substantially the form of Exhibit D attached hereto and incorporated herein. The City MRO shall be issued pursuant to Section 66.0621 of the Wisconsin Statutes, shall not constitute an indebtedness of the City, and shall be payable, subject to contingencies, solely from the limited sources and to the extent provided in this Agreement and the City MRO. F. District. "District" means all of that property, including the Property, included in Tax Incremental Finance District No.40 as described in the Project Plan. G; Payment Dates. "Payment Dates" means November 1 of each year, commencing on the third November 1 after the Effective Date of this Agreement, up to and including November 1, 2049. H. Payment Term. "Payment Term" means the term commencing on the first day of the third November after the Effective Date of this Agreement and continuing on the same day of each year 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, 2049. For example, for illustrative purposes only, if the Effective Date is April 15, 2021, the Payment Term would run from 2 25075016.3 CITY MRO UNITED STATES OF AMERICA STATE OF WISCONSIN COUNTY OF WINNEBAGO CITY OF OSHKOSH TAXABLE TAX INCREMENT PROJECT MUNICIPAL REVENUE OBLIGATION ("MRO") Number Date of Original Issuance Amount 1 , f 1 $1,150,000.00 FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin (the "City"), promises to pay to Miles Kimball, 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 not to exceed One Million One Hundred Fifty Thousand and No/100 Dollars ($1,150,000.00), with interest thereon at the rate of 3.65% per annum. Interest shall begin to accrue on the date Developer provides verification of Project Costs with corresponding evidence of payment. In the event that verification of Project Costs and payment is not provided to the City by any Payment Date, that payment amount will be retained by the City and the principal amount of the MRO will also be reduced by this amount. This MRO shall be payable in installments on November 1 (the "Payment Dates") in each of the years set forth in Schedule 1 attached hereto in an amount equal to the Developer's Share of Available Tax Increment for the prior year provided such payments are due under the Development Agreement, as hereinafter defined. Payments shall be applied first to accrued interest and second to unpaid principal. 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. 40 ("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 2021 b 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 Tax Incremental District No. 40 Development Agreement dated as of , 2021 between the City and the Developer ("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 Developer's Share of 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 25075016.3 Description of Project Plan Tax Incremental District No. 40 is a proposed 0.83 acre "In Need of Rehabilitation or Conservation" district consisting of tax parcel 03-01300-000 located at the northwest comer of West 9th Avenue and South Main Street. The District will be created to pay the costs of development incentives needed to facilitate the rehabilitation and conservation of a 24,660 square foot four- story industrial building constructed in 1904 as an addition to the factory operations of the August Streich and Brother wagon factory. The building was later utilized by the Mileg Kimball company but has now been vacant and underutilized for over fifteen years. Developer proposes to acquire the property and redevelop the existing structure for use as a 28-unit market rate multi- family building ("Project"). In addition to the incremental property value and housing units that will be created, the Project will serve to rehabilitate a historic structure located at a key intersection within the "Core" subarea of the City's Sawdust District Redevelopment Plan. The City projects that net new land and improvements value of approximately $3.48 million will result from the Project. 25075016.3 Development Agreement are incorporated herein by this been issued. The Resolution and Capitalized terms used in this MRO meaning attributable to such terms as set forth in the Development which are not definedAgreement i/IRO shall have the reference. Capi hall have no obligation to pay any amount of this MRO which remains unpaid The City s after the Final payment Date of November 1, 2049. the lable Tax i makes no representation or covenant, expreole or inss or ppart, the tamounts lwhich are The City m whole Increment or other Revenaeable hereundewill be Tlent to pay, or may become due and payable the Common ,s obligations hereunder are subject to appropriation, by The City payment ake ents due on this MRO. When the amount of Council, of Available Tax Increment to m applied to the ayment of all principal and interest due under Revenues have been appropriated and the MRO shall be deemed to be paid in full and discharged, and the City shall have no this MRO, provided in Section VIII.B.I of the Development further obligation with respect hereto. Further, as payments on this MRO in the event of certain Agreement, the City shall have no obligation to make p aYm Agreement. defaults described in Section VIII.A. of the Develo ment a eneral obligation of the City This MRO is a special, olimited om th e obligation and subject go the qualifications stated, by the City y and neither and is payable of the principal or referenced herein. This MRO is not are pledged o the paymentCity, incorporated owers of th tY the full faith and credit nor the taxing p except the above -referenced of this MRO. Further, no property or other asset of obligatioons hereunder. Revenues, is or shall be a source of payment of the City g Subject to the foregoing, the City may, at its option, prepay this MRO at any time. J ant to, and in full conformity with, the Constitution This MRO is issued by the City pursu and laws of the State of Wisconsin. art, with the consent of the City, This MRO may be transferred or assigned, in whole or in p not be split, divided assign the MRO, the transferee or assignee shall surrender which consent shall not be unreasonably withheld. Interests in this MR may e obligation or or apportioned. In order to transfer municipal revenue Each the same to the City either in exchange for a new, fully-registeredthe City. is MRO subject to the foregoing conditions and for transfer of this MRO on the registration records for the MRO maintained y permitted transferee or assignee shall take subject to all provisions stated or referenced herein. thingsand acts required by law to exist It is hereby certified and recited that all conditions, rior to and in connection with the issuance of this MRO have been done, have or to be done p existed and have been performed in due form and time. 25075016.3 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 u and acting City r and City specified above. Clerk, and its corporate seal to be impressed hereon, all as of the date of original issue CITY OF OSHKOSH By: _ Name: Title: Attest: Name: Title: 25075016.3 Schedule I Payment Schedule itions of Subject to the City's annual receipt of Available Taxincre1D vent el per'sd the terms and Share of Available Tax the Development Agreement, the City will pay to Developer Increment received by the City for the prior year aer under this MRO e during eed $1, 50,000.00, provided, that in no event shall payments to Develop exclusive of interest. 25075016.3 REGISTRATION PROVISIONS Th is MRO shall be registered in registration records kept by the City Clerk of the City of Oshkosh, in the registration blank below and Winnebago County, Wisconsin, such registration te thereafter be transferred my uponpresentation upon said registration records, and this MRO may throved by the City and duly executed of this MRO together with a written instrument transfer tunes er be made on such records and endorsed by the Registered Owner or his attorney, such hereon. Sign ,,,re of City Clerk Date� euistration Name of Re istered Owner ol�,ilQ��---------- 25075016.3 EXHIBIT E Projected Distzict Revenue and Expenses [Insert Ehlers Pro Formal 2$075016.3 ga gm g! p- H '9 R RAW A, A A A XA A M A P--LN R g ta. ;I A 4 4 5 � 4 saw ar. -O'domM.pp to 00 9 1 4 4�j 14 po 14 K. 5H a 'Pt a J9 'a w"d 55 is oi' (a [a m (2 g i OCR Ml V_- I-- C� C� 1—,11 t— I _2 ft S'rr N 491 0 0 0 Ci o �s is a to 12 m 14 la A i M M i M M i t'i of M i M m a RIF CY l c s ' H N 0 N Pi N r6i