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HomeMy WebLinkAboutBOATWORKS LLC (2)DEVELOPMENT AGREEMENT Document Number I Document Title Jopment Agreement between the CITY OF OSHKOSH, WISCONSIN, a onsin municipal corporation, the REDEVELOPMENT AUTHORITY OF CITY OF OSHKOSH, WISCONSIN (the RDA and, collectively with the of Oshkosh, Wisconsin, the "City"), and BOATWORKS LLC, a Wisconsin stock, not for profit corporation (the "Developer") PAGES:32 Recording Area Name and Return Address City Attorney's Office PO Box 1130 Oshkosh, W1 54903-1130 09-0784-0102 Parcel Identification Number (PIN) THREE (3), CERTIFIED SURVEY MAP NO. 6905, RECORDED WITH THE WINNEBAGO COUNTY ISTER OF DEEDS AS DOCUMENT NO. 1679243, CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN; r ONE (1), CERTIFIED SURVEY MAP NO. 8021, RECORDED WITH THE WINNEBAGO COUNTY REGISTER DEEDS AS DOCUMENT NO. 1902488, CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN. by: Schueler 1. W1 54903-1130 L-- TAX INCREMENTAL DISTRICT NO.29 DEVELOPMENT AGREEMENT (BOAT WORKS REDEVELOPMENT PROJECT) This Development Agreement (the "Agreement") is made thisP day of September, 2024 (the "Effective Date"), by and among the CITY OF OSHKOSH, WISCONSIN, a Wisconsin municipal corporation, the REDEVELOPMENT AUTHORITY OF THE CITY OF OSHKOSH, WISCONSIN (the "RDA," and, collectively with the City of Oshkosh, Wisconsin, the and BOAT WORKS LLC, a Wisconsin limited liability company ("the "Developer'). RECITALS WHEREAS, in 2016, the City established Tax Incremental District No. 29 (the "District") as a 36 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 property tax increment as provided by State law; and WHEREAS, Developer is acquiring from the City two (2) parcels of real property located within the District, which parcels are identified on the site plan attached hereto as Exhibit A (the "Site Plan") and are legally described on Exhibit A-1 attached hereto (the "Pro e "); and WHEREAS, Developer has approached the City indicating a desire to develop and construct on the Property, in two (2) phases, a multifamily project consisting of approximately 60 residential units with surface parking lots, other infrastructure, and site improvements, all in accordance with applicable City ordinances and City -approved plans (the "Project"); and WHEREAS, Developer will not undertake the development of the Project but for its reliance upon receiving tax increment financing to assist in the funding of a portion of Developer's acquisition, development and operation costs for the Property, all as described below; 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 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: 31745783.2 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. 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 Property and improvements located thereon in the immediately preceding calendar year. �. Case Closure. "Case Closure" has the meaning set forth in Wis. Stat. Sec. 292.12. D. City Contribution. "City Contribution" means payments to be provided from the City to Developer from Available Tax Increment pursuant to the terms of this Agreement, in a total amount estimated at Two Million Seven Hundred Sixty Five Thousand One Hundred Fifty Nine and No/100 Dollars ($2,765,159.00) but shall not exceed Four Million and No/100 Dollars ($4,000,000.00). E. City MRO. "City MRO" means the Municipal Revenue Obligation issued by the City to Developer as evidence of the City's limited obligation to pay the City Contribution as described in Section IV.B. below, and 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 the property included in Tax Incremental Finance District No. 29 as described in the Project Plan. G. Existing Environmental Conditions. "Existing Environmental Condition" means the occurrence of Hazardous Substances on the Property as described in Wisconsin Department of Natural Resources activity BRRTS# 02-71-590636 (Boat Works (Former) — LGU)). H. Ground Lease. "Ground Lease" means a ground lease to be entered into by and between the City and Developer, pursuant to which Developer will lease the Property from the City until the condition(s) set forth in Article V, below, are met. I. 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 Property. J. Maxim -Lim Monthly Rental Rate. "Maximum Monthly Rental Rate" means an amount equal to (i) one hundred twenty percent (120%) of the Median Family Income for the 0) 31745783.2 Oshkosh — Neenah Metropolitan Statistical Area, as established by the U.S. Department of Housing and Urban Development, (ii) multiplied by 0.3, and (iii) divided by 12. As an example, the current Median Family Income for the Oshkosh — Neenah MSA is $99,100. 120% of $99,100 is $118,920. 30% of $118,920 is $35,676. $36,676/12 is $2,973, which would be the Maximum Monthly Rental Rate chargeable by Developer for a unit during the term of this Agreement as set forth in Section III.D.I., below. K. Payment Dates. "Payment Dates" means November 1 of each year, commencing on November 1, 2027, up to and including November 1, 2044. L. Payment Term. "Payment Term" means the term commencing on the first day of the third November after the Effective 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, 2044. M. Project Plan. "Project Plan" means the "Project Plan — Tax Incremental District No. 29 (Morgan Redevelopment)" prepared by Ehlers, Inc. dated June 7, 2016, as adopted by the City's Common Council on July 12, 2016 and approved by the Joint Review Board on August 2, 2016. V, Project Costs. "Project Costs" means the total of all hard costs and soft costs of acquiring and constructing the Project, including all capital expenditures (or expenditures that could be treated as capital expenditures) and preliminary expenditures (such as architectural, engineering, environmental studies, surveying, soil testing, attorneys' fees and expenses, expenses related to obtaining a Case Closure for the Existing Environmental Condition (as required under Section V.A. below) 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 Project Costs is attached hereto as Exhibit C. Q. 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; PROPERTY ACQUISITION. On or promptly following the Effective Date, the City and Developer will enter into the Ground Lease, which will contain terms reasonably satisfactory to the City (as ground lessor) and Developer (as ground lessee), including, but not limited to, the following: 1. A term of fifty (50) years, commencing on the date that the Ground Lease signed, but terminable upon the conveyance of the Property by the City to Developer pursuant to Article V, below. 2. Base rent of $1.00 per year. 31745783.2 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 have been if the Property was not tax 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 Developer (which may be by electronic snail), to the extent necessary for the City to perform any of its obligations under this Agreement and any obligations that is has with respect to the RDA Environmental Matter (as that term is defined in Section V.C., below). 5. The Ground Lease shall terminate in the event that the Project is abandoned by Developer. 6. Developer may purchase the Property at any time for $1.00 and shall be required to purchase the Property upon receipt of a Case Closure. III. DEVELOPER'S OBLIGATIONS. A, Project Construction. Developer shall commence construction of at least one (1) phase of the Project no later than December 31, 2024. Subject to the terms and conditions set forth in this Agreement, construction of a second phase shall commence no later than December 31, 2025. Developer shall diligently pursue completion of construction of the Project in accordance with applicable City ordinances and City -approved plans for the Property so that, subject to the terms and conditions set forth in this Agreement, construction of both phases of the Project shall be substantially completed by June 30, 2027 (the "Completion Date"). With respect to the development of the Project under this Section III.A., Developer agrees that it shall expend Project Costs in an amount of not less than $11,000.000.00 (the "Minimum Project Cost"). Developer's obligations to commence and complete construction under this Section III.A. are subject to Developer's timely receipt of all approvals, licenses and permits necessary or appropriate in connection with Developer's development of the Project. For purposes hereof, "commencement of construction" shall mean the start of site improvements such as site grading or clearing and fencing and "substantially complete" shall mean the issuance of a certificate of occupancy, including a temporary certificate of occupancy. B. Costs and Expenses. Developer shall be responsible for all costs related to the Project and any other work to be performed by Developer under this Agreement, including all engineering, inspections, materials, labor, on -site management of Hazardous Substances (subject to Article V below), all costs of obtaining a Case Closure with respect to the Existing Environmental Condition (subject to Article V, below), and otherwise complying with all continuing obligations which may be imposed in connection with the Case Closure. Furthermore, Developer shall be responsible for payment of all City fees including building permit fees, zoning and sign permit fees, electrical and plumbing fees. For purposes of determining total project costs the city and developer agree to the following percentages will be applied for construction profit, architectural and engineering fees, and developer's fee. Construction profit will be 8% of all hard costs and site/environmental remediation costs. Architectural and Engineering fees will be 5% of all hard costs and 4 31745783.2 site/environmental remediation costs. Developer fees will be 8% of all hard cost and soft costs and site and environmental remediation costs. C. Submission and Verification of Project Cost Information. Developer shall submit evidence of all Project Costs which it intends to serve as the basis for the City Contribution to the City promptly following the completion of each phase of the Project. Each submission shall be on the form attached hereto as Exhibit F and shall include evidence of payment of all invoices, together with copies of lien waivers from each contractor or other payee having lien rights. All such Project Costs shall be subject to verification by the City. D. Rental Requirements; Submission of Rental Information. 1. During the term of this Agreement, the monthly rent charged by Developer for any unit within the Project shall not exceed the Maximum Monthly Rental Rate. For each lease within the Project, the Maximum Monthly Rental Rate shall be calculated as of the first day of the month in which term of such lease commences. 2. On or before June 30 of each year during the term of this Agreement, Developer shall provide a report to the City, setting forth the Maximum Monthly Rental Rate in effect for each month of the twelve (12) month period then ended, the rental rate being charged for each unit within the Project on such date, and the number of units vacant on such date. IV. CITY CONTRIBUTION AND OBLIGATIONS. A. Right of Way Construction. The City shall complete the work within the West Fourth Avenue right of way described on Exhibit B attached hereto and which work will not be assessed back to the developer. Such work will be completed on or before June 30, 2026. B. City Contribution. In each year beginning in 2027 and ending in 2044 (or, if earlier, when the total amount of the City Contribution has been reimbursed to Developer under this Agreement), in consideration of Developer undertaking its obligations under this Agreement, the Available Tax Increment shall be applied to make payments under this Agreement to pay 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 November 1, 2027, 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 IV.B. and the City 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 City MRO. The City Contribution is a special and limited obligation of the City, and not a general obligation of the City. The City ZD 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 Property (and all improvements thereon) shall be used to make payments to Developer; and (iii) if, on November 1, 2044, 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 31745783.2 and agrees as follows: (a) the City Manager or his or her designed representative shall include the payment of the entire Available Tax Increment for each year included during the Payment Term in the applicable budget request recommendation for the following year's budget; (b) if the City's annual budget does not in any year provide for appropriation of Available Tax Increment sufficient to make the payment due to Developer in that year, the City will use its diligent, good faith efforts to notify Developer of that fact at least thirty (30) days prior to the date the budget is presented to the City Common Council for final approval; and (c) Available Tax Increment shall not be used to pay any other project costs of the District until the City has applied to the payment due hereunder, in any year, the Available Tax Increment generated by the Property that this Agreement provides will be applied to payment due hereunder. Developer further acknowledges that, as a result of the special and limited nature of the City's obligation to pay the City Contribution, Developer's receipt of the City Contribution also depends on factors including future mill rates, changes in the assessed value of the Property, failure of the Project to generate Tax Increment at the rate expected by 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 July 12, 2043, unless the City first pays the outstanding balance due under the City Contribution, subject to the provisions of this Agreement, including, but not limited to, the annual appropriation of the City Common Council of such outstanding balance due. Attached hereto as Exhibit E is the City's projection of revenues and expenditures for the District over its term, with the City Contribution labeled as "Municipal Revenue Obligation" thereon. Exhibit E is provided for illustrative purposes only, and Developer acknowledges that the amounts set forth thereon are estimates only. C. 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. D. City Cooperation; Approvals. City shall timely complete all necessary or required zoning, development and use reviews for the 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 Project, including all applications with respect to necessary or appropriate licenses and permits in connection with Developer's 6 31745783.2 i development of the 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 Project as set forth in this Agreement. E, Changes to Project Site Implementation Plan. As of the date of this Agreement, Developer contemplates that the Project will be a multi -family project consisting of approximately 60 residential units with parking lots, other infrastructure, and site improvements. Upon written request from Developer, City will cooperate with Developer with respect to modifications to the site implementation or general development plan and proposed structure, development, phasing or configuration of the remainder of the Project. The City will not unreasonably withhold its consent to requests from Developer with respect to such modifications, so long as the Project, as modified, retains the same basic character as a multi -family development and Developer does not, in any event, propose spending less than the Minimum Project Costs. F. Cfty Loan. In addition to the City Contribution, the City will provide a loan to Developer (the "Cites") in the original principal amount of Three Hundred Sixty Thousand and No/100 Dollars ($360,000.00). The City shall make the City Loan on the Completion Date or such earlier date as the Project is substantially completed. The City Loan shall not bear interest, shall be payable in a single installment of principal on the seventh (7th) anniversary of the Completion Date, shall be secured by a mortgage of the Project in favor of the City, and shall be evidenced by a promissory note in the form attached hereto as Exhibit G. V. ENVIRONMENTAL MATTERS. A. Existing Environmental Condition Affecting the Property. Developer will obtain a Case Closure for the Existing Environmental Condition and shall undertake all development activities in full compliance with any continuing obligations which may be imposed upon the Property as conditions of Case Closure. B. Provisions Applicable to Existing Environmental Condition. Developer and the City acknowledge and agree that Case Closure for the Existing Environmental Condition may be obtained through the use of institutional controls, including, without limitation, groundwater use restrictions and cap construction and maintenance requirements. Following the receipt of any Case Closure, all such institutional controls shall be the sole responsibility of Developer. Following the obtaining of a Case Closure for the Existing Environmental Condition, Developer will be responsible for any and all claims in any way arising out of, connected with, or resulting from the Existing Environmental Condition. Developer shall indemnify, defend, and hold harmless the City and its officers, employees, contractors, and agents, and their respective successors and assigns, from and against any such claims or damages relating to Existing Environmental Condition upon which developer commences construction. C. Conveyance of Property. Upon the issuance of a Case Closure, the City and Developer will terminate the Ground Lease and the City will convey the Property to Developer for a purchase price of $1.00, by special warranty deed, subject to no liens or encumbrances other than 31745783.2 utility easements of record, zoning restrictions, any restrictions imposed as a condition of Case Closure, and other matters reasonably acceptable to Developer (each, a "Permitted Encumbrance"). The City shall pay the premium for an owner's title insurance policy in the amount of $15,000.00, insuring that fee simple title to the Property is vested in Developer, subject to no liens or encumbrances other than Permitted Encumbrances. Developer will be responsible for premiums for owner's and/or loan policy amounts in excess of said amount. D. The City shall remain responsible for any claims arising out of, connected with, or resulting from the environmental condition on the RDA's adjacent property (BRRTS# 03- 71-000250 (Boat Works Inc) — closed LUST site) (the "RDA Environmental Matter"), including any contamination from the RDA Environmental Matter which migrates onto the Property. VI. APPROVALS AND DEVELOPMENT STANDARDS. A. Approval of Public Bodies. 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 Property) all approvals and consents necessary for the City to approve the development of the Property, and any other approvals necessary to utilize the Property for the Project. 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 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. 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. D. Tax Exemption Forbearance. Developer acknowledges that the City is relying upon Developer's real property taxes to generate the Available Tax Increment to fund the City Contribution. As a result, Developer agrees that, neither Developer nor any existing or future Affiliate or related entity of Developer (collectively, "Developer Affiliates") shall use or permit the use of any of the 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 Developer, existing or future Affiliate, any related entity of 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 Property which is exempt from taxation were such portion of the 31745783.2 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 City MRO as provided herein. VII. WARRANTIES AND REPRESENTATIONS. Developer hereby warrants, represents, and covenants to the City: 1. Developer is a duly organized and existing limited liability company in the State of Wisconsin and authorized to transaction 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 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 Developer and constitute the legal, valid, and binding agreements and obligations of Developer, enforceable against 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 Developer, pending or threatened against Developer that may in any material way jeopardize the ability of Developer to perform its obligations hereunder. 4. Developer has sufficient funds through equity and debt financing sources to construct, operate, maintain, and fulfill the 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 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 Developer stating who is authorized to sign on behalf of Developer and that 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 shall not, prior to substantial completion of the Project, enter into any transaction which would result in a third party that is not currently an equity holder of Developer acquiring more than fifty percent (50%) of the voting equity interests in Developer, such that the current owners of Developer are no longer able to direct the activities of Developer with respect to the Project. B. The City hereby warrants and represents to Developer that: 31745783.2 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 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. No special assessments or other charges of any kind have been levied against the Property with respect to the Project Costs. VUL CONDITIONS TO/ LIMITATIONS ON THE OBLIGATIONS. Notwithstanding anything to the contrary set forth in this Agreement, the following is a condition to and limitation on each and all of the obligations of the City and Developer under this Agreement, and the City and 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 Developer, if the District is involuntarily terminated or dissolved (an "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 Project. Subject to the terms of this Agreement, Developer fails to commence construction of either phase of the Project by the dates set forth in Section 3.A., above, or substantially complete the Project by the Completion Date; 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 Property is not paid prior to becoming delinquent; provided that Developer shall have the right to contest the same in accordance with applicable law; or 3. Tax Exemption. All or any portion of the Property becomes tax exempt without a PILOT agreement; or 4. Breach of Agreement. Developer breaches any provision, of this Agreement or its obligations under this Agreement; provided, however, that written notice of the breach has been given to Developer and Developer has failed to cure such breach within thirty (30) days or such longer period as is reasonably required under the circumstances and Developer has begun to cure such breach in good faith and is diligently continuing to cure such breach; or 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 10 31745783.2 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 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 or 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. B. 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 the performance of any and all of its undertakings and obligations under this Agreement, including, but not limited to, making any further payments under this Agreement during the pendency of the Event of Default; 2. Take any action, including legal or administrative action, at law or in equity, which may appear necessary or desirable to the City to enforce performance and observance of any obligation, agreement, or covenant of 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; and/or 3. Terminate this Agreement. 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 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. D. Written Waiver Required. In the event this Agreement is breached by either party and such breach is expressly waived in writing by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous, or subsequent breach hereunder. A party's acquiescence in not enforcing any portion of this Agreement shall not provide a basis for the application of estoppel or other like defense or otherwise constitute waiver. Any waiver of any provision of this Agreement by the City must be express and in writing. E. Compensation for Costs of Breach. Whenever there is an Event of Default by 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 Developer contained in this Agreement, Developer shall, on 11 31745783.2 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. E. 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, 2044, unless terminated earlier in 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 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). Upon an assignment or transfer of Developer's rights and obligations under this Agreement in violation of this Section X.D.1., this Agreement shall terminate at the option of the City and be of no further force and effect. 2. Permitted Assignments. Following substantial completion of the 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 Developer's rights and obligations under this Agreement, Developer conveys the Property to the Affiliate assignee, Developer provides the City with timely written notice and a copy of such fully executed assignment and assumption agreement. 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 and development of the Project. Any such assignment shall be contingent upon, or become effective only following, an event of default Developer under the terms of the loan. So long as Developer has notified the City of the identity and contact information for its lender, the City will use reasonable efforts to notify Developer's lender of any Event of Default by Developer hereunder. Any such assignment shall be of the right to receive payments on the City Contribution only, and no such assignment shall relieve Developer of any of its obligations to the City hereunder. E. 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 12 31745783.2 .�ualty, 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. District Information. As soon as practicable, but no later than December 15 of each calendar year, the City shall provide to Developer the information pertaining to the Available Tax Increment for the calendar year of the request; provided, however, the City is only required to submit information in its possession and is not required to reply to any request prior to December 15 of any calendar year. 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. I. 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, 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: Boat Works LLC 3385 Casey Trail Oshkosh, WI 54904 Attn: Chet Wesenberg With a copy to: 13 31745783.2 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). J. Entire Agreement. This Agreement and all other documents and agreements expressly referred to herein, contain the entire agreement between Developer and the City with respect to the matters set forth herein. This Agreement may be modified only in writing signed by 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. M. 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. N. 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. O. 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. P. 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 Property. Developer shall upon request of the City execute and deliver any such memorandum or other document in connection with such recording. Q. Developer's Obligations Run with the Land. Developer's obligations under this Agreement and all consents, obligations, waivers, restrictions, and other requirements of Developer as set forth in this Agreement, shall be deemed to be covenants running with the land and shall be binding upon the Property and the successors, assigns, and other transferees of Developer. The rights and benefits conferred upon Developer shall not be covenants running with the land and shall not inure to the successors, assigns, or other transferees of Developer, except as set forth in Section X.D, above. 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. 14 31745783.2 S. Third Parties. This Agreement is made for the exclusive benefit of the 1, 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 parry, except as set forth in Section X.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 parry 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 parry's attorney drafted this Agreement or any portion thereof or attachment hereto. [Signatures Begin On Next Page] 15 31745783.2 IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the date stated in the first paragraph of this Agreement. BOAT WORKS LLC STATE OF0\F3V'a COUNTY OF ICI ISS Personally came before me this al day of 2024, the above -named CVWC��eMXQ tome known to be the (UYVI,YYlMlXrof Boat Works LLC and the person who-lexecuted the foregoing instrument on behalf of the limited liability company. o q- 16 31745783.2 CITY OF OSHKOSH, WISCONSIN By: Mark A. bhloff, City Manager By: PD-� Diane Bartlett, City Clerk Approved as to form: By: M' t L n A. Lorenson, City Attorney STATE OF WISCONSIN } } SS COUNTY OF WINNEBAGO } Personally came before me this ;zb— day of n-r , 2024, the above named Mark A. Rohloff and Diane Bartlett, to me known to bethe City Manager and City Clerk, respectively, of the City of Oshkosh, Wisconsin, and the persons who executed111'�.,,� instrument. �O No aiy Public, State of Wisconsiq,�,y My Commission: Ole& 42U210 17 31745783.2 STATE OF WISCONSIN SS COUNTY OF WINNEBAGO REDEVELOPMENT AUTHORITY OF THE CITY OF OSHKOSH, WISCONSIN By: Q.� \ xecutive Director L`�r onally cad? before c` e this I day of O U �'vp— , 2024, the above named U L1and aw \ , 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. *4z", lum Notary Public, Stateo isco s%�� My Commission: :J 18 31745783.2 EXHIBIT A Site Plan East Side West Side 31745783.2 EXHIBIT A-1 Legal Description of Property Lot Three (3), Certified Survey Map No. 6905, recorded with the Winnebago County Register of Deeds as Document No. 1679243, City of Oshkosh, Winnebago County, Wisconsin; AND Lot One (1), Certified Survey Map No. 8021, recorded with the Winnebago County Register of Deeds as Document No. 1902488, City of Oshkosh, Winnebago County, Wisconsin. 31745783.2 EXHIBIT B City Right of Way Work West Side East Side IM The City will complete the following work: 1. Install a cul da sac bulb at the end of West 4th Avenue 2. Repair asphalt in West 41h Avenue per City Specifications 3. Install driveways and driveway aprons per approved site plans 4. Install sidewalks and sidewalk connections to site 5. Restoration of right of way The Developer will complete the following work and be reimbursed by the City: 1. Install utility laterals from utility main in the right of way to the property line 31745783.2 EXHIBIT C Estimate of Property Project Costs _ _ i eta e" ? : ro ect: it et'': Amount 'Notes AcOlsitift.& Site Prep Building%.Land Acquisition - Site Erivironmental Remediation.. 1,656,052 Subtotal $1656,052 Soft Costs Fees Developer Fee 746,480 App dsal %000. 2;x $4.SK AU 466,550, Insurance 5,500 Builditig.P,ermit 25,000 CLOMR % LOMA WW 40,000: Finance Fees 10;000 Construction interest 40;000 Marketing 4,000 Iteai Estate TaXes 5 �' OL Jan-20 Legal &;Professional Sevices 10;0,00, TIF,Municipal-Consultant Fee 5;000. Co'ntin'' en 100,000 Subtotal $1,466,530, Hard Costs Apartments 7,424;�48 Construction Profit 746,480 Culdesac 5.0,006 Otherright-ofAvy, 150 000 Construction`Contiri en 186 620` Subtotal' $8 5SBAMS' otal Pro ect Costs 11 680 630 31745783.2 EXHIBIT D UNITED STATES OF AMERICA STATE OF WISCONSIN COUNTY OF WINNEBAGO CITY OF OSHKOSH TAXABLE TAX INCREMENT PROJECT MUNICIPAL REVENUE OBLIGATION Number Date of Original Issuance Principal Amount $4,000,000.00 FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin (the "City"), promises to pay to BOAT WORKS 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. 29 Development Agreement dated as of , 2024 among the City, the Redevelopment Authority of the City of Oshkosh, Wisconsin, and Developer ("Development Agreement"). Capitalized terms used herein without definitions have the meanings ascribed to them in the Development Agreement. This MRO shall be payable in installments on [November 1, 20271 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. Payments in the amount of Available Tax Increment shall be paid on each Payment Date until the first to occur of (i) payment in full of the entire Principal amount set forth above, or (ii) the end of the Payment Term. The City shall have no obligation to pay any amount of this MRO which remains unpaid after the final Payment Date of November 1, 2044. This MRO shall not bear interest. This MRO has been issued to finance projects within the City's Tax Incremental District No. 29 ("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 by the Common Council of the City (the "Resolution"). This MRO is issued pursuant to the Resolution and pursuant to the terms and conditions of the Development Agreement. This MRO does not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation or provision. This MRO shall be payable solely from Available Tax Increment generated by the Project located within the District and appropriated by the Common Council to the payment of this MRO (the "Revenues"). Reference is hereby made 31745783.2 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 makes no representation or covenant, express or implied, that the Available Tax Increment or other Revenues will be sufficient to pay, in whole or in part, the amounts which are or may become due and payable hereunder. The City's payment obligations hereunder are subject to appropriation, by the Common Council, of Available Tax Increment to make payments due on this MRO. When the amount of Revenues have been appropriated and applied to payment of this MRO, the MRO shall be deemed to be paid in full and discharged, and the City shall have no further obligation with respect hereto. Further, as provided in Section IX.B.1 of the Development Agreement, the City shall have no obligation to make payments on this MRO in the event of certain defaults under the Development Agreement. This MRO is a special, limited revenue obligation and not a general obligation of the City and is payable by the City only from the sources and subject to the qualifications stated, incorporated or referenced herein. This MRO is not a general obligation of the City, and neither the full faith and credit nor the taxing powers of the City are pledged to the payment of the principal of this MRO. Further, no property or other asset of the City, except the above -referenced Revenues, is or shall be a source of payment of the City's obligations hereunder. Subject to the foregoing, the City may, at its option, prepay this MRO at any time. This MRO is issued by the City pursuant to, and in full conformity with, the Constitution and laws of the State of Wisconsin. This MRO may be transferred or assigned, 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. 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. 31745783.2 CITY OF OSHKOSH, WISCONSIN By: _ Name: Title: Attest: Name: Title: 31745783.2 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 31745783.2 EXHIBIT E Projected District Revenue and Expenses prq- Ytu TWNW Cakrdar P MW - -Irluernm RaWw"', Ym Nome& Jula W-0: hmm"A "F". uxeldve: 1 2025 21.000 2 . 1 2626 IM30D 3,728,300 2i060 78,294 78.294 7,829 7OA6S 3 2 2D27 aiio5.000 4,205.0w 21AW 170.20S 170,205 17.021 153.18S 4 3 . 202 1 9 8 . JOS.ODD 1 8. - los.000 21.000270 1 205 176,265 17,021IS3 I , 285 1 5 4 2029 8l105, 000 8.10s, 000 21.000 270.20S 170,205 17.021 1S3,285 6 5 2030 8.105.000 8,105,000 21.000 170,205 170,205' 17.021 153,185 7 6 2031 8405.060 SJOS,OOD 21AW 2.70.26 170,20S 17.021, 1S3.1:8S i62 SA05,060 iUosboo k666 170,20S 170.20 - 5 17.021 253,185 f8S a 2033 8A05.000 8""to5000 21.000 170,205 170,20S 17.021 153,185 10 9 464 S,ios.6w tios.000 il�odd 170.20S 170,20527.021, ISIISS 11 10 2035 .8, , 105.00D .. 8,10S.Ow, 21,000 270.20S 170.20S 17,021 153,18S 12 11 2036 8.1 OS.000 8,105,000 . 2L006 170.205 170,205 17.021 153.185 13 12 2037 8.10S.000 8;105.OD0 2LOOD 170.2M, 170.20S 17.021 isilbs. - 14 13 2638 8.105,ODD 8,105.000 21. . OOD 170,205 17.0,2D5 17.021 IS3, t 18 S' is 14 20391 ILIOSOQD SAO.= 21.000 270,205 170,20S 17.021 153.185 16 is 2040 8.10S.000 SJOSIDDO 2L000 170.265 170,265. 17.621 MASS 17 16 2041 81105.000 81105.000 21.000 170.205, 170,205. 17,021 153.185. 18 17 2042 8,105,OOD 81105,000 2L000 170.20S 170,16S 17.021 MASS 19 IS 2043 8,105,000 8'105.000 21.00D 170,205 270,205 27.021 I53.18S 20 19 2044 , 8,105.000 8,1os.000 2LOOD 170.205. 170,205 17.021 .153.185, 31745783.2 EXHIBIT F Developer's Actual Project Costs for Verification Total Land Acquisition Costs Purchase Price Title Insurance Commissions Due Diligence and Closing Costs Legal Fees Other Acquisition Costs TOTAL LAND ACQUISITION COSTS: Total Soft Costs Architectural & Engineering Environmental Investigations Other Consultants Legal & Accounting Insurance Property Taxes Bonds Permits Marketing & Advertising Developer Fees Outside Consulting Fees Property Taxes Financing Fees and Costs Other Soft Costs TOTAL SOFT COSTS: Total Hard Costs Site Preparation Materials Construction Costs Environmental Remediation Landscaping Equipment Costs Utility/Tap Fees Other Hard Costs TOTAL HARD COSTS: 31745783.2 Other Costs [to be itemized] TOTAL OTHER COSTS: 31745783.2 EXHIBIT G City Loan Promissory Note PROMISSORY NOTE $360,000 , 202 THE UNDERSIGNED, BOAT WORKS LLC, a Wisconsin limited liability company with an address of 3385 Casey Trail, Oshkosh, Wisconsin 54094 (the "Borrower") promises to pay to order of the City of Oshkosh, Wisconsin, a municipal corporation with an address of 215 Church Avenue, Post Office Box 1130, Oshkosh, Wisconsin 54903 (the "Lender"), the sum of THREE HUNDRED SIXTY THOUSAND AND No/100 DOLLARS ($360,000.00) (the "City Loan"), or such lesser amount as shall have been disbursed to Borrower by Lender. The entire principal balance of this Note, if not sooner paid or declared to be due in accordance with the terms hereof and of that certain Development Agreement between the Borrower and the Lender dated of even date herewith (the "Development Agreement") shall, together with any other amounts due and payable hereunder or under the Development Agreement, be due and payable on (the "Maturity Date")'. This Note shall not bear interest. Except as set forth herein, no payments shall be due on this Note until the Maturity Date. Borrower may prepay some or any portion of this Note at any time, without penalty. All payments due under this Note shall be made without demand. This Note shall be immediately due and payable in full upon any event of default by Borrower under the Development Agreement. Any amounts not paid when due, whether on the Maturity Date or earlier as a result of Borrower's default under the Development Agreement, shall bear interest at the rate of twelve percent (12%). Borrower's obligations under this Note are secured pursuant to the terms and conditions of a mortgage dated of even date herewith in the form attached hereto as Exhibit A. Borrower waives presentment for payment, notice of dishonor, presentment, notice of protest, protest, and all diligence of collection. All payments shall be made in immediately available funds, at the address of Lender first set forth above. The holder of this Note may, from time to time, designate in writing such other place for payment as it may select. Maturity Date to be the seventh (71) anniversary of the Completion Date, as that term is defined in the Development agreement. 31745783.2 The undersigned shall pay all costs of collection, before and after judgment, including reasonable attorneys' fees. This Agreement has been delivered to Lender and accepted by Lender in the State of Wisconsin. If there is a lawsuit arising from this Agreement, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Winnebago County, Wisconsin. Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. This Note shall be governed by and construed in accordance with the internal laws of the State of Wisconsin. In case any one or more of the provisions contained in this Note shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and this Note shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and its successors and assigns. BOAT WORKS LLC Name: ed Title:,ice.. 46W,W83.2