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DEVELOPMENT AGREEMENT
Document Number
Document Title
Development Agreement between the City of Oshkosh, the
Redevelopment Authority of the City of Oshkosh, and Akcess
Acquisition Group-Oshkosh, LLC for redevelopment of Development
Areas 1, 2 and 3 in the Marion Road/Pearl A venue Redevelopment
Phase II Area
"
Dralted by:
Ann K. Comer, Esq.
Quarles & Brady LLP
Milwaukee. WI
1-----.----
1441344
REGISTER'S OFFICE
VINNEBAGO COUNTY, WI
RECORDED ON
07/13/2007 09:34AM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 99.00
TRANSFER FEE
I OF PAGES 45
Recordinl! Area
Name and Return Address
-
C~Q, ft:::I:;
City Attorney's Office
Oshkosh, WI 54902-1130
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901-0200-0000
901-0221-0000
901-0222-0000
901-0230-0000
Parcel Identification No.
t' J 6 '--.1
--Z )
Development Agreement
This Development Agreement is made this.l\- day of .:=f'~ , 2007, by and
between the City of Oshkosh, Wisconsin, a Wisconsin municipal corp ration, and the
Redevelopment Authority of the City of Oshkosh, Wisconsin, and Akcess
Acquisition Group-Oshkosh, LLC, a Wisconsin limited liability company.
Recitals
(i) The City of Oshkosh and the Redevelopment Authority of the City of
Oshkosh and Akcess Acquisition Group-Oshkosh, LLC entered into an Option
Agreement to LeaselPurchase. Real Estate dated January 11, 2007 (the "Option") with
respect to the acquisition or lease by Akcess Acquisition Group-Oshkosh, LLC of the
Project Land (as hereinafter defined).
(ii) Under the terms of the Option, the City of Oshkosh, the Redevelopment
Authority of the City of Oshkosh and Akcess Acquisition Group-Oshkosh, LLC agreed to
develop a Master Development Agreement with respect to the Project Land.
(iii) The parties enter into this Development Agreement for the purpose of
complying with the terms and conditions of the Option and for the purpose of setting
forth certain rights, duties and obligations of the parties with respect to the development
of the Project Land.
Now, Therefore, in consideration of the recitals and mutual agreements herein set
forth, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Proiect Overview. On or about September 22, 1998, May 25, 1999, June
27,2000, and January 11,2005 the City of Oshkosh established the Marion RoadlPearl
Avenue Redevelopment Phase II Area. Portions of the Marion RoadlPearl Avenue
Redevelopment Area are located in Tax Increment District No. 13 and portions are
located in Tax Increment District No. 21. Akcess Acquisition Group-Oshkosh, LLC has
made a proposal to the City to develop the Project Land (as hereinafter defined)
comprised of Development Areas 1, 2 and 3 in the Marion RoadlPearl Avenue
Redevelopment Phase II Area. This Development Agreement sets forth the terms on
which the City of Oshkosh and/or the Redevelopment Authority of the City of Oshkosh
will convey all or portions of the Project Land to Akcess Acquisition Group-Oshkosh,
LLC and the terms on which Akcess Acquisition Group-Oshkosh, LLC or a Parcel
Developer (as hereinafter defined) will develop that portion of the Project Land
conveyed to it. The parties agree that the development of the Project Land must best
achieve the goals and objectives for the Project Land as reflected in the Marion
Road/Pearl Avenue Redevelopment Plan and it is a condition of the City's and the
Authority's obligations under this Agreement that such goals and objectives be achieved.
2. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
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(a) "Affiliate" means: (i) a person or an entity that directly or
indirectly controls, or is controlled by, or is under common control with, Developer or
any Parcel Developer; or (ii) a person or entity that directly or indirectly beneficially
owns or holds any ownership interest in Developer or any Parcel Developer; or (iii) any
entity in which Developer or Parcel Developer or any member of Developer or Parcel
Developer has an ownership interest; or (iv) any person or entity that is an officer or
director or member of Developer or any Parcel Developer. As used in this definition, the
term "control" means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a person or entity, whether through the
ownership of voting securities, by contract or otherwise.
(b) "Authority" means the Redevelopment Authority of the City of
Oshkosh, Wisconsin, its successors and assigns.
(c) "Available Tax Increment" means an amount calculated as of
January 15th of each year equal to (i) the annual gross tax increment revenue actually
received and retained by the City which is generated in the calendar year immediately
preceding the calendar year in which the calculation is made by improvements made by
Developer or any Parcel Developer to any portion of the Project Land, minus (ii) all costs
and expenses of the City incurred in connection with the Project Land for the
immediately preceding year, including without limitation, the actual legal, financial,
engineering and administrative expenses incurred by the City or the Authority in
connection with the creation or administration of Oshkosh Tax Increment District No. 21,
and the negotiation, preparation and administration of this Development Agreement,
minus (iii) debt service.
(d) "City" means: The City of Oshkosh, Wisconsin, a Wisconsin
municipal corporation, its successors and assigns.
(e) "Closing" means: For each Parcel, the later to occur of (i) the
closing of Project Lender's loan(s) for such Parcel, and (ii) the satisfaction of all
conditions precedent to the commencement of disbursement of the Project Lender's
loan(s) for such Parcel.
(f) "Closing Date" means: For each Parcel, the date on which the
Project Lender's loan(s) for such Parcel is closed and all conditions to the
commencement of disbursement ofthe Project Lender's loan(s) for such Parcel have been
satisfied.
(g) "Completion Date" means: For each Parcel, 14 months following
the Closing Date for such Parcel.
(h) "Developer" means Akcess Acquisition Group-Oshkosh, LLC, a
Wisconsin limited liability company, its permitted successors and assigns.
(i) "General Contractor" means: For each Parcel, the general
contractor hired by the Developer or any Parcel Developer to construct the Parcel Project
under a guaranteed maximum price contract.
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G) "Marion Road/Pearl Avenue Redevelopment Phase II Area"
means: The land shown on Exhibit B attached hereto.
(k) "Marion RoadlPearl Avenue Redevelopment Plan" means the
City's redevelopment plan governing the Marion RoadlPearl Avenue Redevelopment
Phase II Area.
(1) "Parcel" means: Any portion of the Project Land designated by
Developer to be a separate and distinct parcel of real estate on which a Parcel Project will
be constructed and developed by Developer or a Parcel Developer.
(m) "Parcel Developer" means: The owner of a Parcel or the lessee of
a Parcel from Developer, which owner or lessee develops the Parcel Project on the
Parcel.
(n) "Parcel Land" means: The land comprising a Parcel.
(0) "Parcel Plans" means: For each Parcel, final detailed plans and
specifications for the Parcel Project, which shall include, without limitation, the
following: all improvements now located or to be located on the subject Parcel, the
footprint of all improvements and the square footage of all improvements, all easements,
pathways, exterior boundary lines, walkways, parking and circulation areas, adjoining
public streets and alleys, utilities, exits and entrances, all signage, curbs, gutters,
sidewalks, landscaping, medians and street lighting, all materials to be used in
construction, all interior and exterior :finishes, the number and types of units, the number
of stories in the buildings and parking structures or lots, building sections and elevations,
description of room and space sizes, plan arrangement of rooms and functional spaces,
exterior elevations, the stacking of floors and all construction elements, a narrative
description of all structural systems, mechanical systems, electrical systems and any
specialty systems. The Parcel Plans for a Parcel Project must be in sufficient detail to
permit Parcel Developer and the General Contractor to enter into a guaranteed maximum
price construction contract for the Parcel Project.
(p) "Parcel Project" means: The project to be constructed and
developed on a Parcel by Developer or a Parcel Developer pursuant to Parcel Plans
approved by the City and the Authority.
(q) "Project" means: The improvements to be constructed and
developed by Developer and the Parcel Developers on the Project Land.
(r) "Project Architect" means: For each Parcel, the architect hired by
Developer or the Parcel Developer to design the Parcel Project and to perform all other
architectural services in connection with the Parcel Project.
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(s) "Project Cost Breakdown" means: For each Parcel, a current
completion and draw schedule and cost breakdown of construction and non-construction
cost items (i.e., a line-item budget), clearly identifying development, construction,
furnishing, equipping, financing, contingency and all other direct and indirect costs of
development, construction and installation of the Parcel Project in accordance with the
Parcel Plans for the Parcel Project.
(t) "Project Land" means: The land described on Exhibit A attached
hereto other than the land within the boundaries of the Public Improvements.
(u) "Project Lender" means: For each Parcel, one or more mortgage
lenders making the initial construction/permanent loan(s) for the Parcel Project, in an
aggregate amount not to exceed the value of the Parcel Project.
(v) "Project Plan" means: The Project Plan for the Oshkosh Tax
Increment District No. 21, dated February 14,2006, as amended from time to time.
(w) "Public Improvements" means those improvements described in
paragraph 25 below.
(x) "TIF District" mean: Oshkosh Tax Increment District No. 21.
(y) "Title Company" means: For each Parcel, the title company
issuing the loan policy of title insurance to the Project Lender for the respective Parcel
Project.
3. Commitments. Subject to the terms and conditions of this Agreement:
(a) Developer and the Parcel Developers, at their cost and expense, will construct, install,
furnish and equip the Project; and (b) unless otherwise agreed by the parties, the City will
construct the Public Improvements; and (c) the City or the Authority will convey the
Project Land to the Developer or Parcel Developers, as the case may be.
4. Conditions Precedent to City's and Authority's Obligations. In
addition to all other conditions and requirements set forth in this Agreement, the
obligations of the City and the Authority under this Development Agreement (including
without limitation, the obligation of the City and/or the Authority to convey any Parcel to
Developer or any Parcel Developer) and the right of the Developer to exercise its option
to purchase and/or lease all or any portion of the Project Land pursuant to the Option, are
conditioned upon the satisfaction of each and every of the following conditions:
(a) On or before 30 days prior to the Closing Date for each
Parcel, Developer or the Parcel Developer, at its cost, will provide the Project
Cost Breakdown for such Parcel to the City and the Authority. The Project
Cost Breakdown shall be certified by Developer or the Parcel Developer, as the
case may be, the Project Architect and the General Contractor as accurate and
complete. The Project Cost Breakdown shall show that all hard costs of
construction, installation, furnishing and equipping of the Parcel Project are not
less than the amount determined to be necessary by the City for the Project to
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meet the values set forth in paragraph 6(u) below, taking into account all of the
Parcel Projects which have been approved by the City and the Authority. The
Project Cost Breakdown must otherwise show a state of facts acceptable to the
City and the Authority.
(b) On or before July 12, 2007 Developer shall provide the
City and the Authority with a timetable for construction and completion of the
Project. On or before 30 days prior to a Closing Date for each Parcel,
Developer or the Parcel Developer, at its cost, shall provide the City and the
Authority with a timetable for construction and completion of the Parcel
Proj ect.
(c) Prior to the execution of this Agreement, Developer shall
provide the City and the Authority with evidence satisfactory to the City and
the Authority that Developer is authorized to enter into this Agreement and that
the persons signing this Agreement on behalf of Developer are authorized to
sign this Agreement. On or before July 15, 2007, Developer, at its cost, shall
provide a certified copy of its articles of organization and operating agreement
and a certificate of status issued by the Wisconsin Department of Financial
Institutions. Such formation documents must show a state of facts as to
ownership, management and control acceptable to the City and the Authority.
If any member or manager of Developer is an entity, then that entity's
organizational documents and a certificate of status for said entity must also be
provided to the City and the Authority. Said entity's organizational documents
must show a state of facts acceptable to the City and the Authority.
(d) Prior to the execution of this Agreement, Developer shall
provide a certificate of incumbency and resolutions or consents of its members,
and if any member is an entity, then a certificate of incumbency and
resolutions or consents of such member, all of which resolutions and consents
shall show that Developer has been duly a1.l;thorized to enter into this
Agreement and all other agreements, documents and contracts required to be
executed by it in connection with the transactions which are the subject of this
Agreement.
(e) On or before 15 days prior to a Closing Date for each
Parcel, Developer or the Parcel Developer, at its cost, shall obtain a written
financing commitment(s) from Project Lender, under the terms of which
Project Lender agrees to make mortgage loan(s) to Developer or the Parcel
Developer, as the case may be, for the purpose of construction, furnishing,
equipping and installation of the Parcel Project. On the Closing Date,
Developer or the Parcel Developer, as the case may be, shall close such Project
Lender's loan(s) which are the subject of the financing commitment(s), on
terms and conditions set forth in the financing commitment(s) and in
connection therewith, the Developer or the Parcel Developer shall provide all
documents to be executed in connection with the Project Lender's loan(s) for
the Parcel to the City and the Authority, which documents must be acceptable
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to the City and the Authority and which documents must contain terms and
conditions consistent with this Agreement.
(f) The Developer and each Parcel Developer must submit the
Parcel Plans to the City and the Authority for the purpose of zoning and land
use review and approval and issuance of a conditional use permit. On or
before 60 days prior to the Closing Date for each Parcel, Developer or the-
Parcel Developer, at its cost, shall provide the City and the Authority with the
Parcel Plans for the Parcel Project, which Parcel Plans must comply with the
terms of this Agreement. Prior to Closing, the Developer and each Parcel
Developer shall have obtained the Authority's approval of the Parcel Plans and
the City's Plan Commission's review and Common Council approval of the
Parcel Plans for compliance with all applicable zoning and land use laws, rules,
regulations and ordinances. Further, prior to Closing, the Developer and each
Parcel Developer shall have obtained any conditional use permit as may be
required for a particular Parcel Project
The Developer and each Parcel Developer must also submit State-
approved Parcel Plans for a separate review and approval by the City for the
purpose of obtaining all other permits, approvals and licenses as are required in
connection with construction of a Parcel Project, including without limitation,
all building permits. On or before 30 days prior to a Closing Date for each
Parcel, Developer or the Parcel Developer, at its cost, shall provide the City
and the Authority with the State-approved Parcel Plans for the Parcel Project,
which State-approved Parcel Plans must comply with the terms of this
Agreement. Prior to Closing, the Developer and each Parcel Developer shall
have obtained any and all permits, licenses and approvals from the City,
including without limitation building permits, as may be required in connection
with the Parcel Project.
The Developer and each Parcel Developer understand and agree
that the City and the Authority are not required to issue any approvals, permits
or authorizations unless the Parcel and Parcel Project comply with applicable
laws and ordinances, the Project Plan and the Marion RoadlPearl Avenue
Redevelopment Plan. It is understood that the development of each Parcel
must best achieve the goals and objectives for the Project Land and Public
Improvements as reflected in the Marion RoadlPearl A venue Redevelopment
Plan and it is a condition of the City's and the Authority's obligations under this
Agreement that such goals and objectives be achieved.
(g) On or before July 12,2007, each of the City and the
Authority shall have approved this Development Agreement and the
transactions contemplated herein, and all other agreements and/or transactions
which require approval. On or before the 10 days prior to the Closing Date for
each Parcel, any conditions imposed in connection with the City's or the
Authority's approval of any of the foregoing shall have been satisfied.
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(h) On or before 15 days prior to a Closing Date for each
Parcel, Developer and Parcel Developer shall have provided to the City and the
Authority, evidence satisfactory to the City and the Authority that the
Developer and Parcel Developer have the funds sufficient to complete the
Parcel Project in accordance with theParcel Plans. The evidence may include,
without limitation, anyone or more of the following, each of which can be
required at the City's sole option:
(i) A deposit with the Title Company at the Closing for
each Parcel, equal to the difference between (i) the
total aggregate cost of the Parcel Project as shown in
the greater of (A) the Project Cost Breakdown for
such Parcel Project, or (B) the combination of the
guaranteed maximum price construction contract for
the Parcel Project plus the other costs which will be
incurred for the construction, installation and
equipping of the Parcel Project, minus (ii) the
proceeds of the Project Lender's loan(s) for the
Parcel Project, which funds must be available for
disbursement and be disbursed for the Parcel Project
prior to the disbursement of the Project Lender's
loan(s) for the Parcel; and/or
(ii) Individual payment and or performance guaranties
from the principals of Developer and/or the Parcel
Developer; and/or
(iii) Additional collateral to secure the obligations ofthe
Developer and/or the Parcel Developer with respect
to the particular Parcel Project; and/or
(iv) Deposit with the City of a letter of credit in an
amount determined by City to guarantee the
Developer's and/or Parcel Developer's liabilities and
obligations with respect to a particular Parcel
Project.
(v) Presentation by the Developer and/or the Parcel
Developer of an executed guaranteed maximum
price construction contract for the particular Parcel
Project with a contractor approved by the City
and/or the Authority providing for completion of
100% of the construction, installation and equiping
of the particular Parcel Project to the condition at
which the City would issue a certificate of
occupancy (including all Project hard and soft
costs ).
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(i) The Closing for the first Parcel to be conveyed by the
Authority to Developer must occur on or before September 14,2007.
U) On or before 10 days prior to a Closing Date for each
Parcel, Developer or Parcel Developer, as the case may be, at its cost, shall
provide the City and the Authority with evidence satisfactory to the City and
the Authority that the Project conforms and complies with all applicable laws,
rules, regulations and ordinances as well as any covenants, restrictions,
documents or instruments governing the Project Land, the Project, the Parcel
Land, the Parcel Project and/or the TIF District, including without limitation,
the applicable Project Plan, and the Marion Road/Pearl Avenue
Redevelopment Plan governing the Project Land and Project.
(k) No uncured default, or event which with the giving of
notice or lapse of time or both would be a default, shall exist under this
Agreement. Neither Developer nor any Parcel Developer shall be in default
(beyond any applicable period of grace) of any of its obligations under any
other agreement or instrument with respect to the Project or any Parcel to
which Developer or any Parcel Developer is a party or an obligor.
(1) On or before the Closing Date for the first Parcel to be
conveyed by the Authority to the Developer, counsel for Developer shall
provide an opinion reasonably acceptable to the City and the Authority, stating
among other things, that the persons executing this Agreement and the
agreements entered into hereunder are authorized to do so, that Developer has
duly authorized entry into this Agreement and the agreements entered into
hereunder, that this Development Agreement and any other agreements entered
into hereunder are enforceable, and other matters as are requested by City or
the Authority.
(m) At or prior to the Closing Date for the first Parcel to be
conveyed by the Authority to Developer, Developer shall have executed and
delivered to the City and/or the Authority any documents and agreements as
are required by this Agreement.
(n) Any agreements required of the City or the Authority by
any Project Lender and any documents or instruments required by any Project
Lender to be executed by the City or the Authority, must be acceptable to the
City and the Authority.
(0) On or before 10 days prior to a Closing Date for each
Parcel, each Parcel Developer shall have entered into a guaranteed maximum
price construction contract with the General Contractor for the Parcel Project,
an architect's agreement with the Project Architect and all other contracts and
agreements necessary in connection with completion and construction of the
Parcel Project, which contracts and agreements must be acceptable in all
respects to the City and the Authority. The guaranteed maximum price
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construction contract for the Parcel Project must show that the costs of
construction of the Parcel Project do not exceed the amount shown on the
Project Cost Breakdown for such costs for such Parcel.
(p) Unless a Parcel Project is to be self-managed by the
Developer or the particular Parcel Developer, on or before 10 days prior to a
Closing Date for each Parcel, Developer or the Parcel Developer shall have
entered into a management agreement with respect to the management and
operation of the Parcel Project, with a person or entity acceptable to City and
the Authority, which agreement must be acceptable to the City and the
Authority.
(q) On or before 30 days prior to a Closing Date for each
Parcel, Developer shall divide such Parcel from the balance of the Project Land
in accordance with applicable laws and ordinances, so that such Parcel is a
distinct parcel of real estate, including no other land within the boundaries of
the distinct parcel. All documents and instruments required to satisfy this
condition, including without limitation any plats, certified survey maps, and
any other documents and/or instruments shall be provided to City and the
Authority by Developer and shall show a state of facts acceptable to City and
the Authority. The Developer and the City shall each pay one-half of the cost
of complying with this subparagraph (r).
(r) On or before 10 days prior to the Closing Date for each
Parcel, the City and the Authority shall have received the organizational
documents of the subject Parcel Developer and evidence satisfactory to the
City and the Authority that the subject Parcel Developer is duly organized and
validly existing, has the power to enter into the agreements entered into by it,
has been authorized to execute and deliver all documents to be executed and
delivered by it, is not subject to any litigation or bankruptcy proceeding and
sufficient information for the City and the Authority to determine that the
Parcel Developer's representations set forth in Paragraphs 6(e) through 6(h) are
accurate.
(s) On or before 10 days prior to the Closing Date for each
Parcel, the Parcel Developer for the Parcel shall execute and deliver to the City
and the Authority, an agreement under the terms of which the Parcel Developer
agrees to be bound by the terms and conditions of this Development
Agreement with respect to its Parcel, and assumes all liabilities and obligations
of the Developer and/or the Parcel Developer as set forth herein with respect to
its Parcel.
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The obligations of the City and the Authority under this Development Agreement
and the obligation of the City and/or the Authority to convey the first Parcel of the
Project Land to Developer, and the right of the Developer to exercise its option to
purchase and/or lease all or any portion of the Project Land pursuant to the Option, are
conditioned upon the satisfaction of all of the conditions set forth above within the times
periods set forth above. If each of the conditions set forth above is not satisfied on or
before five days following the last day of the time period within which such condition
was required to be satisfied as set forth above, then the City or the Authority, at either of
their options, exercised in their sole discretions, may terminate this Agreement, in which
event, none of the parties to this Agreement shall have any fmiher liability or obligation
to the other parties accruing on or after the date of termination.
The continuing obligations of the City and the Authority under this Development
Agreement and the obligation of the City and/or the Authority to convey any other Parcel
(other than the first Parcel) to Developer or to any Parcel Developer are conditioned upon
the satisfaction of all of the conditions set forth above for each Parcel, within the times
periods set forth above. If each of the conditions set forth above for each Parcel is not
satisfied on or before five days following the last day of the time period within which
such condition was required to be satisfied as set forth above, then the City or the
Authority, at either of their options, exercised in their sole discretions, may terminate any
further rights of the Developer or any Parcel Developer under this Agreement, in which
event, the City and the Authority shall not have any further liability or obligation to the
other parties accruing on or after the date of termination. All liabilities and obligations of
the Developer or any Parcel Developer arising prior to the date of termination of this
Agreement shall survive termination of the Agreement.
All submissions given to the City and the Authority to satisfy the conditions
contained in this Paragraph 4 must be satisfactory in form and content to the City and the
Authority, in their sole discretions, unless otherwise specifically stated.
Subject to the provisions of paragraph 7(a) below, in the event the City or the
Authority cause a delay in the Developer's or any Parcel Developer's meeting the time
periods set forth above solely because of the City's or Authority's failure to respond to
Developer or Parcel Developer in a reasonably timely manner, then the time period for
the particular action shall be extended by the number of days of the delay caused by the
City or the Authority.
5. Conveyance to Developer and Parcel Developers. The parties
acknowledge that this Agreement is intended to be a master development agreement for
the Project. The Developer may, but is not required to, develop the entire Project. The
Developer may elect to purchase one or more parcels from the City and the Authority and
to subsequently convey one or more Parcels to a Parcel Developer. The Developer may
elect to join in a joint venture with another person or entity for development of a Project
or to lease a Parcel to another entity for development of a Parcel Project. Any Parcel
Developer, joint venturer or lessee must be approved in advance by the City and the
Authority before the City or the Authority shall be required to convey to the Developer or
the Parcel Developer, the Parcel to be developed by the Parcel Developer. In the event a
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Parcel is conveyed to a Parcel Developer, or in the event the Developer enters into a joint
venture or lease for development of a Parcel, then the Parcel Developer or the joint
venturer, as the case may be, shall agree in writing to be bound by the terms and
conditions of this Development Agreement with respect to itsParcel, and assume all
liabilities and obligations of the Developer and/or the Parcel Developer as set forth herein
with respect to its Parcel; provided, however, Developer shall not be released from its
liabilities and obligations under this Agreement with respect to such Parcel. Developer
understands and agrees that the City and the Authority are not required to convey any
Parcel to Developer, or to Developer for reconveyance to a Parcel Developer, prior to the
satisfaction of all conditions set forth in this Agreement, including without limitation the
conditions set forth in paragraph 4 above. The obligations and liabilities of the
Developer and each Parcel Developer and joint venturer and lessee with respect to a
particular Parcel shall be joint and several.
6. Representations and Warranties and Covenants of Developer/Parcel
Developers. Developer makes the following representations and warranties and
covenants applicable to it. Each Parcel Developer makes the following representations
and warranties applicable to it. The representations and warranties of the Developer and
each Parcel Developer are as follows:
(a) All copies of financial statements, documents, contracts and
agreements which Developer or any Parcel Developer has furnished and will furnish
to the City and the Authority, are and will be true and correct in all material respects.
There has been no material adverse change in the business operations of Developer
since the date of the last financial statements furnished by it to the City and the
Authority.
(b) Developer and its members have paid, and will pay when due, and
any Parcel Developer and its members/partners has paid and will pay when due, all
federal, state and local taxes, and will promptly prepare and file returns for accrued
taxes prior to any taxes becoming delinquent.
(c) Developer and any Parcel Developer will pay for all work
performed and materials furnished for the Project.
(d) No statement of fact by Developer or any Parcel Developer
contained in this Agreement and no statement of fact furnished or to be furnished by
Developer or any Parcel Developer to the City or the Authority pursuant to this
Agreement contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary in order to make the statements herein
or therein contained not misleading at the time when made.
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(e) Developer is a Wisconsin limited liability company, duly formed
and validly existing and has the power. Developer and each Parcel Developer has all
necessary licenses, permits and franchises to own its assets and properties and to
carry on its business. Developer and each Parcel Developer is duly licensed or
qualified to do business and in good standing in the State of Wisconsin and all other
jurisdictions in which failure to do so would have a material adverse effect on its
business or financial condition.
(f) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary limited liability company action of Developer
and any Parcel Developer and constitute the valid and binding obligations of
Developer and each Parcel Developer enforceable in accordance with their terms,
subject only to applicable bankruptcy, insolvency, reorganization, moratorium,
general principles of equity, and other similar laws of general application affecting
the enforceability of creditors' rights generally.
(g) The execution, delivery, and performance of Developer's or the
subject Parcel Developer's obligations pursuant to this Agreement will not violate or
conflict with Developer's articles of organization or operating agreement or the
organizational documents of any Parcel Developer or any indenture, instrument or
agreement by which Developer or any Parcel Developer is bound, nor will the
execution, delivery, or performance of Developer's or Parcel Developer's obligations
pursuant to this Agreement violate or conflict with any law applicable to Developer
orthe Parcel Developer, as the case may be, or the Project.
(h) There is no litigation or proceeding pending or threatened against
or affecting Developer, the Parcel Developer or the Project that would adversely
affect the Project or Developer or the Parcel Developer or the enforceability of this
Agreement, the ability of Developer or the Parcel Developer to complete the Project
or to cause the completion of the Project or the ability of Developer or the Parcel
Developer to perform its obligations under this Agreement.
(i) The Project Cost Breakdown will accurately reflect all Parcel
Project costs that will be incurred in the development, completion, construction,
furnishing and equipping of a particular Parcel Project, and the City and the
Authority shall be entitled to rely on the Project Cost Breakdown in connection with
each Parcel Project.
CD No default, or event which with the giving of notice or lapse of
time or both would be a default, exists under this Agreement, and neither Developer
nor the Parcel Developer is in default (beyond any applicable period of grace) of any
of its obligations under any other agreement or instrument entered into in connection
with the Project.
QBMKE\61 ] 3678.8
12
(k) The members of Developer will not sell, transfer, conveyor
encumber their respective interests in Developer. Tim Rikkers shall at all times
during the term of this Agreement have sole management and control over the day-
to-day operations of Developer and the Project and there shall be no amendment or
modification to the formation documents of Developer which would in any way
modify or change such management and control of Developer by Tim Rikkers.
(1) Except as otherwise set forth in Paragraph 5 above, neither
Developer nor any Parcel Developer shall sell, convey, assign, or otherwise transfer
any Parcel in the Project or the operation and management of each Parcel in the
Project.
(m) Construction of each Parcel Project shall commence not later than
2 months following the Closing for such Parcel. Developer and each Parcel
Developer will continue construction of the each Parcel Project diligently and shall
complete, or shall cause the completion of, construction of each Parcel Project not
later than 12 months following commencement of construction of the Parcel Project.
Each Parcel Project will be deemed completed upon the occurrence of all of the
following with respect to each Parcel Project: (i) a certificate of occupancy is issued
by the appropriate governmental authorities for all of the units in the Parcel Project
and for the entire Parcel Project; and (ii) the Project Architect has certified that (A)
all of the units in the Parcel Project have been substantially completed in accordance
with the Parcel Plans, and (B) the entire Parcel Project has been substantially
completed in accordance with the Parcel Plans. The entire Project shall be
completed on or before September 30, 2012.
(n) Developer and each Parcel Developer will conform and comply
with all applicable federal, state, local and other laws, rules, regulations and
ordinances, including without limitation, all zoning and land division laws, rules,
regulations and ordinances, all building codes and ordinances of the City and
County, all environmental laws, rules, regulations and ordinances and all applicable
securities laws, rules, regulations and ordinances. Developer and each Parcel
Developer covenants that it will perform and observe the covenants contained in, and
each Parcel Project will conform and comply with, the covenants, restrictions,
documents and instruments governing the Project Land, the TIF District and the
Marion RoadlPearl Avenue Redevelopment Phase II Area, including without
limitation, the Marion RoadlPearl Avenue Redevelopment Plan.
(0) Developer and each Parcel Developer will cause each Parcel
Project to be constructed in a good and workmanlike manner and substantially in
accordance with the Parcel Plans for the Parcel Project and will promptly correct any
defects, structural or otherwise, in construction or deviations from the Parcel Plans
for the Parcel Project. Construction of each Parcel Project shall be completed free of
all liens and encumbrances except for those liens and encumbrances permitted by
this Agreement.
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(p) Neither Developer nor Parcel Developer will, without City's and
the Authority's prior written consent, change the scope of any Parcel Project after its
approval by the City and the Authority or materially change the type or number of
units in a Parcel Project or the uses of the Parcel Project. The entire Project shall be
constructed substantially as outlined in the general description of the Project
provided to City and the Authority as described in The Waterfront proposal dated
October 11, 2006.
(q) Neither Developer nor Parcel Developer will, without City's and
Authority's prior written consent: (i) approve any changes in any Parcel Project or
permit any work to be done pursuant to any changes or modify the Parcel Plans; (ii)
increase or decrease any line item of the Project Cost Breakdown for a Parcel; or (iii)
modify or amend any agreement affecting any Parcel Project in a manner which
would cause the agreement to be inconsistent with this Agreement. Developer and
each Parcel Developer shall obtain the approval of the City and the Authority for
change orders which when aggregated with prior change orders cause the costs of a
Parcel Project to increase or decrease by more than 15% ofthe amount shown on the
Project Cost Breakdown for hard construction costs for such Parcel.
(r) Developer and each Parcel Developer will permit City, the
Authority, the City's and/or the Authority's construction consultant or construction
reviewer or inspector, at all reasonable times: (a) to review and inspect the Project
and all matters relating to the development thereof, and (b) to review and copy all of
Developer's, each Parcel Developer's and General Contractor's books and records
pertaining to the development, construction and operation of any Parcel Project.
Neither the City nor the Authority assumes any obligation to Developer or
any Parcel Developer for the sufficiency or adequacy of such reviews, it being
acknowledged that such reviews are made for the sole and separate benefit of City
and the Authority. Any and all notes and copies of records made by or on behalf of
the City and/or the Authority related to such reviews shall be treated as confidential
to the full extent permitted by law. The fact that City or the Authority may make
construction reviews shall in no way relieve Developer or any Parcel Developer from
its duty to independently ascertain that the construction of any Parcel Project is being
completed substantially in accordance with the approved Parcel Plans.
(s) Developer and each Parcel Developer shall:
(i) As soon as possible and in any event within five (5)
business days after receiving notice of the occurrence of any default, notify City and
Authority in writing of the action which is being taken or proposed to be taken by
Developer or any Parcel Developer with respect thereto.
(ii) Promptly notify City and Authorityof the commencement
of any litigation or administrative proceeding that would cause any representation
and warranty or covenant of Developer or any Parcel Developer contained in this
Agreement to become untrue in any material respect.
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(iii) Notify City and the Authority, and provide copies,
immediately upon receipt, of any notice, pleading, citation, indictment, complaint,
order or decree from any federal, state or local government agency or regulatory
body, asserting or alleging a circumstance or condition that requires or may require a
financial contribution by Developer or any Parcel Developer or an investigation,
clean-up, removal, remedial action or other response by or on the part of Developer
or any Parcel Developer under any environmental laws, rules, regulations or
ordinances or which seeks damages or civil, criminal or punitive penalties from or
against Developer or any Parcel Developer for an alleged violation of any
environmental laws, rules, regulations or ordinances.
(t) It is the intention of Developer and the City and the Authority that
the sole business of Developer shall be the ownership and operation of the Project,
the leasing and operation of the Project, the management of the Project and
Developer covenants that neither of them will take any action inconsistent with such
intention, including without limitation the acquisition of real or personal property
unrelated to the Project, investment in the assets or stock of any other person, joining
with any other person in any partnership or joint venture or the creation or incurring
of indebtedness unrelated to the Project. It is the intention of each Parcel Developer
and the City and the Authority that the sole business of such Parcel Developer shall
be the ownership and operation of the respective Parcel Project, the leasing and
operation of the respective Parcel Project, the management of the respective Parcel
Project and Developer covenants that neither of them will take any action
inconsistent with such intention, including without limitation the acquisition of real
or personal property unrelated to the respective Parcel Project, investment in the
assets or stock of any other person, joining with any other person in any partnership
or joint venture or the creation or incurring of indebtedness unrelated to the
respective Parcel Project. The City and the Authority understand that a Parcel
Developer other than the Developer may be a national, state or local chain of a
restaurant, hotel or business. If the City and the Authority approve such Parcel
Developer as part of their approval process, then this subparagraph 6(t) shall not
apply to such Parcel Developer other than Developer.
(u) Developer guarantees that as of December 31, 2008, the assessed
value of the new improvements constructed by the Developer and the Parcel
Developers on the Project Land (not including the value of the land) will be not less
than $7,000,000; and as of December 31,2009, the assessed value of the new
improvements constructed by the Developer and the Parcel Developers on the
Project Land (not including the value of the land) will be not less than $24,500,000
(i.e., the original $7,000,000 constructed as of December 31, 2008, plus an additional
$17,500,000.00); and that as of December 31, 2010, the assessed value of the new
improvements constructed by the Developer and the Parcel Developers on the
Project Land (not including the value of the land) will be not less than $31,400,000
(i.e., the original $7,000,000 constructed as of December 31,2008, plus the
additional $17,500,000 constructed as of December 31,2009, plus an additional
$6,900,000).
QBMKE\6113678.8
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(v) Developer and each Parcel Developer shall have in effect at all
times, all permits, approvals and licenses as may be required by any governmental
authority or non-governmental entity in connection with the development,
construction, management and operation of the Project.
(w) Except for each Project Lender's loan(s), neither Developer nor
any Parcel Developer will incur, create, assume, permit to exist, guarantee, endorse
or otherwise become directly or indirectly or contingently responsible or liable for
any indebtedness secured by all or any portion of the Project.
(x) Neither the Developer nor any Parcel Developer shall make any
changes to the Parcel Plans unless the Developer and/or the Parcel Developer, as the
case may be, shall have provided to the City and the Authority, evidence that it has
immediately available funds sufficient to pay for such changes.
(y) Neither Developer nor any Parcel Developer will mortgage or
otherwise place a lien or encumbrance on the Project Land or the Project without
tirst obtaining the City's and the Authority's consent, which consent the City or the
Authority may grant or withhold in their respective sole reasonable discretions.
(z) Developer and each Parcel Developer warrants that its Project Cost
Breakdown will accurately reflect all Parcel Project costs that will be incurred by the
Developer or any Parcel Developer in the development, completion, construction,
furnishing and equipping of the subject Parcel Project and the City and the Authority
are entitled to rely on each Project Cost Breakdown.
The representations and warranties contained herein shall be true and
correct at all times during the term of this Agreement. Developer and each Parcel
Developer shall comply with all covenants contained herein at all times during the term
of this Agreement.
7. Representations and Warranties and Covenants of City and the
Authority. The City and the Authority represent and warrant to, and covenant with, the
Developer as follows:
(a) The City will review all building permits applications, zoning
change applications, conditional use permit applications and the plans and
specifications for each Parcel Project as expeditiously as possible, taking into
account applicable laws, rules, regulations and ordinances.
(b) The City and the Authority will maintain the Project Land owned
by the Authority in the condition it exists as of the date of this Agreement, ordinary
wear and tear and damage by fire or other casualty excepted.
QBMKE\6113678.8
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8. Insurance. Developer and each Parcel Developer shall maintain the
following insurance policies issued by insurers licensed in the State of Wisconsin, with a
ratings and in the financial size category of insurers of similar projects, with such policies
(the "Insurance Policies") covering loss by perils, hazards, liabilities and other risks and
casualties and in such amounts as may be reasonably required by the City and the
Authority:
(a) Following completion of construction of each Parcel Project, "all
risks" property insurance insuring against such risks as are insured against by owners
of similar projects, in amounts equal to 100% replacement cost of all buildings,
improvements, fixtures, equipment and other real and personal property constituting
the subject Parcel Project with an extended replacement cost endorsement;
(b) During the construction of each Parcel Project, builder's risk
insurance in form and amounts reasonably satisfactory to the City and the Authority;
( c) During the term of this Agreement, commercial general liability
insurance covered under a comprehensive general liability policy including
contractual liability in amounts maintained by owners of similar projects, and
insuring against bodily injury, including personal injury, death and property damage;
(d) During the term of this Agreement, the contractors performing
work in connection with the Parcel Project shall have worker's compensation
insurance in amounts meeting all statutory state and local requirements; and
(e)
the Authority.
Such other insurance as may be reasonably requested by City or
Each Insurance Policy shall require the insurer to provide at least thirty (30) days prior
written notice to the City and the Authority of any material change or cancellation of
such policy. The City and the Authority shall be named as an additional insureds/loss
payees on all policies of insurance except worker's compensation insurance.
9. DamaeefDestruction. Neither Developer nor any Parcel Developer shall
be released from its liabilities and obligations under this Agreement in the event of fire,
damage or any other casualty to any part of any Parcel Project. In the event of fire,
damage or any other casualty to any part of any Parcel Project prior to completion of the
subject Parcel Project, Developer or the subject Parcel Developer agrees, at its cost and
expense, to complete the Parcel Project and the Project timely and in a manner to create
the values set forth in paragraph 6(u) above. Any change in any Project Cost Breakdown
resulting from the fire, damage or other casualty must be approved by the City and the
Authority.
10. Default. The occurrence of anyone or more of the following events shall
constitute a default ("Default") hereunder:
QBMKE\6113678.8
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(a) Developer or any Parcel Developer shall fail to pay any amounts
due from it under this Agreement on or before ten (10) days following the date when
due; or
(b) Any representation or warranty made by Developer or any Parcel
Developer in this Agreement, or any document or financial statement delivered by
Developer or any Parcel Developer pursuant to this Agreement, shall prove to have
been false in any material respect as of the time when made or given; or
(c) Developer or any Parcel Developer shall breach or fail to perform
timely or observetimely any of its covenants or obligations under this Agreement,
and such failure shall continue for thirty (30) days following notice thereof from City
or the Authority to Developer or the subject Parcel Developer, as the case may be (or
such longer period of time as is necessary to cure the default as long as Developer or
the Parcel Developer has commenced the cure of the default within the 30-day
period, is diligently pursuing the cure of the default and as long as the default is
cured not later than 90 days following the notice thereof from the City or the
Authority); or
(d) Construction of any Parcel Proj ect shall be abandoned for more
than thirty (30) consecutive days and Developer or Parcel Developer, as the case
may be, does not re-commence construction within 30 days following notice from
the City or the Authority of the default caused by the abandonment, or if any Parcel
Project is not completed on or before the Completion Date for that Parcel, or if the
entire Project is not completed on or before September 30, 2012, or if any portion of
the Project shall be damaged by fire or other casualty and not be repaired, rebuilt or
replaced as required by Paragraph 9 above; or
(e) If there is a default in paragraph 6(u) above; or
(f) Developer or any of its members or any Guarantor or any Parcel
Developer or any of its members shall: (i) become insolvent or generally not pay, or
be unable to pay, or admit in writing its/hislher inability to pay, itslhislher debts as
they mature; or (ii) make a general assignment for the benefit of creditors or to an
agent authorized to liquidate any substantial amount of its/hislher assets; or (iii)
become the subject of an "order for relief' within the meaning oftheUnited 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 itlhim/her in bankruptcy or any similar proceeding, or have such a
proceeding commenced against it/himlher, and such petition, application or
proceeding shall remain undismissed for a period of ninety (90) days or Developer or
any of its members or any Guarantor or any Parcel Developer or any of its members
shall file an answer to such a 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/his/her assets or properties, or have a receiver or custodian
appointed for any of its/his/her assets or properties, with or without consent, and
QBMKE\6113678.8
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such receiver shall not be discharged within ninety (90) days after his appointment;
or (vi) adopt a plan of complete liquidation of itslhislher assets; or
(g) If Developer or any Parcel Developer shall cease to exist or if any
Guarantor or any Parcel Developer dies; or
(h) A default shall occur under any other loan or indebtedness of
Developer or any Parcel Developer with respect to the Project, including without
limitation, any Project Lender's loan(s), which default is not cured within the time
period set forth in the documents governing such other loan or indebtedness.
11. Remedies. Upon the occurrence of any Default, without notice (other
than the notice required under paragraphs 10(a), (c), and (d)), demand or action of any
kind by the City or the Authority, the City or the Authority may, at their respective
options, pursue any or all of the rights and remedies available to the City or the Authority
at law and/or in equity and/or under this Agreement against Developer, any Parcel
Developer and/or the Project. In addition, the City and/or the Authority shall have the
right to suspend performance of any of its obligations or covenants under this Agreement.
Further, the City's and/or the Authority's obligation to conveyor lease any further portion
of the Project Land to Developer or any other person or entity shall automatically
terminate.
If any Parcel Project is not commenced or completed within the time periods set
forth in paragraph 6(m) above, then in addition to all other remedies set forth herein, at
the request of the City or the Authority, the Developer or Parcel Developer, as the case
may be, shall reconvey the subject Parcel to the Authority by warranty deed, free and
clear of all liens and encumbrances. At the City's or the Authority's request, any
construction on the subject Parcel shall be removed and demolished at the cost of
Developer or the Parcel Developer, as the case may be, prior to reconveyance of the
Parcel to the City or the Authority.
If the provisions of paragraph 6(u) above have not been met in the time periods
set forth in paragraph 6(u), then in addition to all other remedies, then City and the
Authority, at their options and in their sole discretions, shall have the right to terminate
Developer's and/or any Parcel Developer's rights to purchase any further portions of the
Project Land. Thereafter, the City and the Authority shall have the right to convey and/or
lease all other portions of the Project Land to any other person or entity.
Except as may be otherwise specifically set forth herein, no remedy herein
conferred upon the City or the Authority is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Agreement, and/or now or hereafter existing at law or in
equity. No failure or delay on the part of the City or the Authority in exercising any right
or remedy shall operate as a waiver thereof nor shall any single or partial exercise of any
right preclude other or further exercise thereof or the exercise of any other right or
remedy. Notwithstanding any of the foregoing authorizations, neither the City nor the
QBMKE\6113678.8
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Authority shall have any duty or obligation whatsoever with respect to any of the matters
so authorized.
12. Costs. The Developer shall pay all costs and expenses associated with the
enforcement of the City's and/or the Authority's rights against Developer and any Parcel
Developer shall pay all costs and expenses associated with the enforcement ofthe City's
and/or the Authority's rights against such Parcel Developer and any joint venture shall
pay all costs and expenses associated with the enforcement of the City's and/or the
Authority's rights against such joint venturer, including without limitation the
enforcement of such rights in any bankruptcy, reorganization or insolvency proceeding
involving Developer or any of its members or any Guarantor or any Parcel Developer or
any of its members or any joint venturer. Any and all such fees, costs and expenses
incurred by the City or the Authority which are to be paid by the Developer and the
subject Parcel Developer and joint venturer, shall be paid by Developer and the subject
Parcel Developer and the joint venturer, as the case may be, to the City or the Authority,
as the case may be, on demand. In the event of a default or breach by Developer under
this Agreement, Developer shall pay all costs and expenses incurred by the City and the
Authority in connection with the Developer's involvement in the Project, and the
preparation and negotiation of the Option, this Development Agreement, including
without limitation, attorneys fees and the fees of the City's and the Authority's financial
. consultant(s). In the event of a default or breach by Parcel Developer under this
Agreement, Parcel Developer shall pay all costs and expenses incurred by the City and
the Authority in connection with the Parcel Developer's involvement in the Project, and
the preparation and negotiation of the Option, this Development Agreement, including
without limitation, attorneys fees and the fees of the City's and the Authority's financial
consultant(s ).
13. City's/Authority's Ri2;ht to Cure Default. In case of failure by
Developer or any Parcel Developer to procure or maintain insurance, or to pay any fees,
assessments, charges or taxes arising with respect to the Project or to comply with the
terms and conditions of this Agreement or any other document, contract or agreement
affecting the Project, including without limitation, the terms and conditions of any
documents governing any Project Lender's loan(s), which failure is not cured within any
applicable cure period, the City or the Authority shall have the right, but shall not be
obligated, to obtain such insurance or pay such fees, assessments, charges or taxes or take
such action as is necessary to remedy the failure of Developer or Parcel Developer, as the
case may be, to comply with the documents, contracts or agreements affecting the
Project, and, in that event, the cost thereof shall be payable by Developer and the subject
Parcel Developer to the City or the Authority, as the case may be.
14. Cost Overruns. Any cost overruns incurred in connection with the
Project shall be paid for by Developer and any cost overruns incurred in connection with
any Parcel Project shall be paid by the Developer and the subject Parcel Developer.
QBMKE\6113678.8
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15. Parking. Developer and each Parcel Developer understand and agree that
it shall be Developer's and/or Parcel Developer's obligation to provide adequate parking
for each Parcel Project complying with all applicable laws, rules, regulations and
ordinances, at Developer's and the subject Parcel Developer's cost and expense.
16. Sie:nage. All signage installed at the Project, both during construction and
after completion of the Project, must comply with all applicable laws, rules, regulations
and ordinances and must be approved by the City and the Authority as part of the City's
and/or the Authority's approval of each Parcel's Parcel Plans. All signage shall be
maintained, repaired and replaced as necessary by Developer and/or the subject Parcel
Developer, at its expense.
17. Real Estate Taxes and Assessments. Developer and each Parcel
Developer agree to pay, or cause to be paid, timely to the City generally applicable
property taxes assessed and levied by the City in connection with each Parcel Project
under its applicable property tax laws, rules, rates, regulations and ordinances in effect
. from time to time. Nothing in this Agreement shall impair any statutory rights of the City
with respect to the assessment, levy, priority, collection and/or enforcement of real estate
and personal property taxes. In addition, Developer and each Parcel Developer agree to
pay, or cause to be paid, timely to the City all special assessments as may be assessed or
levied in connection with each Parcel Project under the applicable special assessment
laws, rules, regulations, ordinances and rates in effect at the time said special assessments
are assessed or levied. Developer and each Parcel Developer agree that they will not sell,
lease, assign or otherwise transfer or convey any interest in the Project or the Project
Land to a person or entity exempt from general property taxation or in a manner which
would cause all or any portion of the Project or the Project Land to be exempt from
general property taxation (the "Tax-Exempt Covenant"). This Tax-Exempt Covenant
will run with the Project Land and the Project and will bind all owners in title to the
Project Land and the Project during the term of the Tax-Exempt Covenant. In the event
any part of the Project Land and/or the Project is exempt from general property taxation,
the owner of such exempt portion of the Project shall agree to make a payment to the City
in lieu of taxes pursuant to the terms and conditions of an agreement acceptable in form
and content to the City. In the event a court finds the Tax-Exempt Covenant is not valid
or enforceable or if for any reason the Tax-Exempt Covenant is terminated, then
Developer, its successors and assigns or ariy other owner in title to any part of the Project
exempt from taxation shall make a payment in lieu of taxes to the City pursuant to the
terms and conditions of an agreement acceptable in form and content to the City.
18. Indemnifications. Developer and each Parcel Developer hereby
indemnifies, defends, covenants not to sue and holds the City and the Authority harmless
from and against all loss, liability, damage and expense, including attorneys' fees,
suffered or incurred by the City or the Authority in any way in connection with the
Project or the Project Land, including without limitation: (a) the failure of Developer or
any Parcel Developer or their contractors, subcontractors, agents, employees, or invitees
to comply with any environmental law, rule, regulation or ordinance, or any order of any
regulatory or administrative authority with respect thereto; (b) any release by Developer
or any Parcel Developer or their contractors, subcontractors, agents, employees, or
QBMKE\6113678.8
21
invitees of petroleum products or hazardous materials or hazardous substances on, upon
or into the Project; (c) any and all damage to natural resources or real property or harm or
injury to persons resulting or alleged to have resulted from any failure by the Developer
or any Parcel Developer and/or their contractors, subcontractors and/or agents to comply
with any law, rule, regulation or ordinance or any release of petroleum products or
hazardous materials or hazardous substances as described in clauses (a) and (b) above;
(d) any violation by Developer or any Parcel Developer at the Project or the Project Land
of any environmental law, rule, regulation or ordinance; (e) the failure of Developer or
any Parcel Developer to comply with the environmental remediation plan in effect with
respect to the Project Land as described in paragraph 27 below; (f) claims arising under
the Americans With Disabilities Act, and any other laws, rules, regulations or ordinances;
(g) the failure by Developer or any Parcel Developer to comply with any term or
condition of this Agreement; (h) injury to or death of any person at the Project and/or
injury to any property resulting from the Project; and (i) the failure of Developer or any
Parcel Developer to maintain, repair or replace, as needed, any portion of the Project.
The terms "hazardous substances" means any flammable explosives, radioactive
materials, hazardous wastes, toxic substances, or related materials, including without
limitation, any substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "toxic substances" under any
applicable federal or state or local laws or regulations.
This paragraph 18 shall not be construed as limiting the Developer's right to sue
the City and/or the Authority in the event of a default or breach by the City or the
Authority under this Agreement.
19. Fire and Safety Hazards. Developer and each Parcel Developer agrees
to construct, or cause the construction of, each Parcel Project in conformance with all fire
and safety standards specified by applicable law.
20. Nondiscrimination. The City, the Authority, the Developer and the
Parcel Developers agree that the Project shall not be sold to, leased or used by any party
in a manner to permit discrimination or restriction on the basis of race, creed, ethnic
origin or identity, color, gender, religion, marital status, age, handicap or national origin,
and that the construction and operation of the Project shall be in compliance with all
laws, rules, regulations and ordinances relating to discrimination or any of the foregoing.
21. No Personal Liability. Under no circumstances shall the City or the
Authority or any council person, officer, official, director, attorney, employee, member
or agent of the City or the Authority have any personal liability arising out of this
Agreement, and no party shall seek or claim any such personal liability.
22. City/Authority Authorization. The execution of this Agreement by the
City was authorized by Resolutions 07-02 and 07-198 of the City's Common Council
dated January 9, 2007 and July 10,2007 and by Resolutions 07-01 and 07-06 of the
Authority dated Janauary 3, 2007 and July 2,2007.
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23. Staff Approval. Except for this Agreement, all other documents and
agreements that require approval by the City or the Authority in connection with this
. Agreement or the Project shall be approved by the proper City officials designated by the
City or Authority, as the case may be.
24. Security for Oblieations. Upon acquisition of each Parcel and until
the Parcel Project on such Parcel is completed, the Developer or the Parcel Developer, as
the case may be, will deliver to City and the Authority a mortgage on the subject Parcel
and the improvements thereon, to secure the obligations of Developer and the Parcel
Developer under this Development Agreement. The mortgage shall be in form and
content acceptable to the City and the Authority. The mortgage can be subordinate to the
one or more mortgage -loan(s) on the subject Parcel and the Parcel Project securing the
financing for the subject Parcel Project as long as the other terms of the subordination are
acceptable to the City and the Authority, with the City's and Authority's consent not to be
unreasonably withheld. The proceeds of the mortgage loan(s) to which the
City's/ Authority's mortgage is subordinate must be used for acquisition and development
of the subject Parcel and the construction and development of the Parcel Project. The
provisions of this paragraph 24 are in addition to any and all other rights and remedies the
City and the Authority may have with respect to a default under this Agreement.
25. Public Improvements. The City shall make certain Public Improvements
adjacent to or on the Project Land. Those Public Improvements are:
(a) An approximately 1. I 32-acre, 30-foot wide riverwalk between the
Project Land and the Fox River to be designed, constructed and installed in accordance
with plans and guidelines established by the City; and
(b) Improvements to the seawall bordering the riverwalk adjacent to
the Project Land, to be designed, constructed and installed in accordance with plans and
guidelines established by the City; and
(c) An approximately 1.28-1.35 acre park area between certain Parcels
. comprising the Project Land, in a location determined by the City and the Authority.
It is the City's intention that the riverwalktrail section identified in this subparagraph
25(a) will be connected to Wisconsin Street and the WIOUW ASH Recreation Trail in
accordance with the adopted Fox River Corridor Riverwalk Plan and Design Guidelines.
The City will coordinate the making of the Public Improvements with the development of
the Project. The portion of the riverwalk referred to in paragraph 25(a) above and the
seawall referred to in paragraph 25(b ) above adjacent to each Parcel Project will be
completed at the time of completion of the subject Parcel Project.
26. Water RiehtslRiparian Riehts. Nothing in this Agreement does or is
intended to give the Developer, any Parcel Developer or any other owner or lessee of any ,
part of the Project or Project Land or Public Improvements or any other person or entity,
any water rights or riparian rights with respect to the Fox River, or any other body of
water near or surrounding the Project Land and/or the Public Improvements. Neither the
QBMKE\6113678.8
23
Developer nor any Parcel Developer nor any other owner or lessee of any part of the
Project shall place any piers or boat slips or other improvements or structures of any kind
in or on the Fox River, or any other body of water near or surrounding the Project Land
and/or the Public Improvements without the City's and the Authority's prior written
consent, which consent the City and/or the Authority can withhold in their respective sole
discretions.
27. Environmental Remediation. The City and the Authority acknowledge
that the Project Land and Public Improvements may contain certain contaminants that
must be remediated prior to or during any development on the Project Land. The City
and the Authority will prepare an environmental remediation plan in connection with the
Project Land, the Public Improvements and each Parcel. The general approach the City
will take in a Parcel Remediation Plan is set forth in Exhibit C attached hereto. The
parties understand, however, that the City shall prepare an environmental remediation
plan specific to each Parcel (the plan for each Parcel being referred to herein as a "Parcel
Remediation Plan") once the Parcel Plans for that Parcel have been completed. The City
will consult with the Developer in the preparation of each Parcel Remediation Plan. The
City may, but is not required to, perform some remediation pursuant to the general
remediation plan or any Parcel Remediation Plan prior to the transfer of any Project Land
to the Developer or any Parcel Developer. The City may elect instead to have the
Developer and each Parcel Developer perform the environmental remediation for a Parcel
pursuant to the Parcel Remediation Plan for that Parcel. With respect to the
environmental remediation of the Project Land, the following terms shall apply:
(a) The City will pay the cost of the environmental
remediation performed in accordance with the Parcel Remediation Plan.
(b) If Developer or Parcel Developer requests a level of
remediation greater than the remediation set forth in the City's Parcel Remediation Plan,
the Developer and/or Parcel Developer will pay for the added cost for carrying out the
increased level of remediation. Any amount the Developer and/or Parcel Developer has
agreed to pay for environmental remediation shall be included in the Parcel's Project Cost
Breakdown.
(c) The City will cooperate with the Developer and the Parcel
Developer in obtaining grants from various governmental entities to help offset
Developer's and the Parcel Developers' costs associated with the remediation.
28 Brokers' Fees/Commissions. In the event the Developer or any Parcel
Developer incurs any broker fee or commission in connection with any transactions
contemplated by this Agreement, the Developer or the subject Parcel Developer shall pay
or cause to be paid any such fee or commission and neither the City nor the Authority
shall be liable for any such fee or commission. Developer and each Parcel Developer
hereby indemnifies and holds harmless the City and the Authority with respect to the
payment of any such fee or commission claimed to be due as a result of any actions of
Developer or any Parcel Developer.
QBMKE\6113678.8
24
29. Guaranteed Tax Payment. The Developer guarantees that the new
improvements constructed by Developer and the Parcel Developers on the Project Land
will generate real estate taxes paid to the City as of October 1 of each year during the
term of this Agreement, the amounts shown on Exhibit D attached hereto for the time
periods shown on Exhibit D. If the amount of real estate taxes actually received by the
City for any year attributable to the new improvements constructed by Developer and the
Parcel Developers on the Project Land is less than the amount guaranteed for such year as
shown on Exhibit D, then Developer agrees that it will pay such shortfall to the City on
or before IS days following notice from the City of the amount of the shortfall.
Notwithstanding the foregoing, if the Developer complies with the provisions of
paragraph 6(u) above, the Developer shall not be liable for any shortfall calculated as of
October 1 of 2010, but will continue to be liable for any shortfall occurring thereafter.
At such time as the assessed value of the new improvements constructed by
Developer and the Parcel Developers on the Project Land exceeds $31,400,000.00, if
there is any Available Tax Increment in any calendar year, the City will reimburse the
Developer from Available Tax Increment any amounts paid by Developer under this
Paragraph 29.
The provisions of this paragraph 29 are in addition to any and all other rights and
remedies the City and the Authority may have with respect to a default under this
Agreement.
30. Miscellaneous.
(a) Except as otherwise specifically set forth herein, the respective
rights and liabilities of City, the Authority, the Developer or any Parcel Developer
under this Agreement are not assignable or delegable, in whole or in part, without the
prior written consent of the other parties. The provisions ofthis Agreement shall
inure to the benefit of and be binding upon the successors and assigns of the parties.
(b) No waiver, amendment, or variation in the terms of this Agreement
shall be valid unless in writing and signed by the City, the Authority and Developer,
and any Parcel Developer whose Parcel is affected, and then only to the extent
specifically set forth in writing.
(c) All agreements, representations, warranties, covenants, liabilities
and obligations made in this Agreement and in any document delivered pursuant to
this Agreement shall survive the execution and delivery of this Agreement and the
Closing.
(d) All communications or notices required or permitted by this
Agreement shall be in writing and shall be deemed to have been given (i) upon
delivery to an officer of the person entitled to such notice, if hand delivered, or (ii)
two business days following deposit in the United States mail, postage prepaid, or
with a nationally recognized overnight commercial carrier that will certify as to the
QBMKE\6113678.8
25
date and time of delivery, airbill prepaid, or (iii) upon transmission ifby facsimile,
and each such communication or notice shall be addressed as follows, unless and
until any of such parties notifies the other in accordance with this Paragraph of a
change of address:
If to the City or the
Authority:
City of Oshkosh, Wisconsin
215 Church Avenue, P.O. Box 1130
Oshkosh, VVI 54903-1130
Attention: Jackson Kinney
Facsimile No.: (920) 236-5053
If to the Developer:
Akcess Acquisition Group-Oshkosh, LLC
419 Venture Ct.
P.O. Box 930555
Verona, WI 53593
Attention: Frederick Rikkers
Facsimile No.: (608) 848-6357
Akcess Acquisition Group-Oshkosh, LLC
301 N. Broom Street, 2nd Floor
Madison, WI 53703
Attention: Tim Rikkers
Facsimile No.: (608) 294-9433
(e) This Agreement and the documents executed pursuant to this
Agreement contain the entire understanding of the parties with respect to the subject
matter hereof. There are no restrictions, promises, warranties, covenants or
undertakings other than those expressly set forth in this Agreement and the
documents executed in connection with this Agreement. This Agreement and the
documents executed in connection herewith supersede all prior negotiations,
agreements and undertakings between the parties with respect to the subject matter
hereof, including without limitation, the terms of the term sheet executed in
connection with the Project and the Option. It is understood and agreed that the
Option is hereby terminated and of no further force or effect.
(f) This Agreement is intended solely for the benefit of Developer and
the City and the Authority, and no third party (other than successors and permitted
assigns) shall have any rights or interest in any provision of this Agreement, or as a
result of any action or inaction of the City or the Authority in connection therewith.
Without limiting the foregoing, noapprovals given pursuantto this Agreement by
Developer or the City or the Authority, or any person acting on behalf of any of
them, shall be available for use by any contractor or other person in any dispute
relating to construction of the Project.
QBMKE\6113678.8
26
(g) This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Wisconsin applicable to
contracts made and wholly performed within such state.
(h) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but such counterparts shall together constitute but
one and the same agreement. Facsimile signatures shall be deemed original
signatures for all purposes of this Agreement.
(i) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement in such jurisdiction or affecting the validity or
enforceability of any provision in any other jurisdiction.
(j) Nothing contained in this Agreement or any other documents
executed pursuant to this Agreement, shall be deemed or construed as creating a
partnership or joint venture between the City and the Authority on the one hand and
Developer or any Parcel Developer on the other hand or between the City or the
Authority on the one hand and any other person, or cause the City or the Authority
to be responsible in any way for the debts or obligations of Developer or any Parcel
Developer or any other person. Developer and each Parcel Developer further
represent, warrant and agree, for themselves and their successors and permitted
assigns, not to make any assertion inconsistent with their acknowledgment and
agreement contained in the preceding sentence in the event of any action, suit or
proceeding, at law or in equity, with respect to the transactions which are the subject
of this Agreement and this paragraph may be pleaded and construed as a complete
bar and estoppel against any assertion by or for Developer, any Parcel Developer and
their successors and permitted assigns, that is inconsistent with its acknowledgment
and agreement contained in the preceding sentence.
(k) Time is of the essence of each and every obligation or agreement
contained in this Agreement.
(1) If any party is delayed or prevented from timely completing
construction of any Parcel Project, by reason of fire, earthquake, war, flood, riot,
strikes, labor disputes, governmental restrictions, judicial order, public emergency,
or other causes beyond the control of the party obligated to perform, performance of
such act shall be excused for the period of such delay and the time for the
performance of any such act shall be extended for a period equivalent to such delay.
(m) This Development Agreement shall terminate on the expiration of
the maximum statutory life of the TIF District.
QBMKE\61 13678.8
27
(n) A memorandum of this Agreement shall be recorded in the office
of the Register of Deeds of Win neb ago County, Wisconsin, prior to the recording of
the Project Lender's mortgagees), or any other mortgage on Project, it being
understood by the parties that until termination of this Agreement as set forth in
subparagraph 30(m) above, this Agreement will run with the land and will be
binding upon the Project Land and the Project and any owner and/or lessee and/or
mortgagee of all or any portions of the Project Land and the Project and their
successors and assigns.
(0) The headings in this Agreement are for reference only and are not
intended to modify any of the terms and conditions of this Agreement.
(p) Nothing contained in this Agreement is intended to or has the
effect of releasing Developer or any Parcel Developer from compliance with all
applicable laws, rules, regulations and ordinances in addition to compliance with all
terms, conditions and covenants contained in this Agreement.
(q) This Agreement is the product of negotiation among all of the
parties hereto and no term, covenant or provision herein or the failure to include a
term, covenant or provision shall be construed against any party hereto solely on the
basis that one partyor the other drafted this Agreement or any term, covenant or
condition contained herein.
QBMKE\6113678.8
28
In Witness Whereof, this Agreement is executed as of the date first above written.
City of Oshkosh, Wisconsin
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
BY:~k~ ... ...
'~i.~hard A."'W ollangk, .gi!.~ Ma 'ager
A:~ Q1~)
Pamela R. Ubrig, City Clerk
/If/PROVeD ~ -/:Jv..~--~/
C~~.
Personally appeared before me this 11- day or:::~-'-\A~~\' 2007, the above-named
Richard A. Wollangk and Pamela R.Ubrig, the City Manager nd City Clerk,
respectively, of the City of Oshkosh, Wisconsin, to me known to be the persons who
executed the foregoing agreement on behalf of the City and by its authority.
~ll~O~ ~ - ~~
Notary Public, State of Wis~o~sinl . _ ._
My Commission expires: ~~
QBMKE\6113678.8
29
Redevelopment Authori
Oshkosh, Wisconsin
;J
Thomas Belter, Vice-Chairman
By:
Attest:
Jac s n R. Kinney E cutive Director
(Ll4
ST A TE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally appeared before me this lL day of ~A. ~\ V. , 2007, the above-named
Thomas Belter and Jackson R. Kinney, the Vice-Chair~ Executive Director,
respectively, of the Redevelopment Authority of the City of Oshkosh, Wisconsin, to me
known to be the persons who executed the foregoing agreement on behalf of the
Authority and by its authority.
~~vJL ~ ~~
Notary Public, State of WiSCOri~<.,-
My Commission expires~ t 19 (;){) to
QBMKE\6113678.8
30
Akcess Acquisition Group-Oshkosh,
LLC, a Wisconsin limited liability
~
By. _ _ --...--'
Name:Tim Rikkers
Title: Executive Vice President
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally appeared before me this lL day of .::!:A \ U ,2007, the above-
named Tim Rikkers, Executive Vice President, of Akcess AcqJisition Group-Oshkosh,
LLC, a Wisconsin limited liability company, to me known to be the person who executed
the foregoing agreement on behalf of said limited liability company and by its authority.
~~^dL C} - ~I\{1AMd ~.
Notary Pu~lic.' State ~fwisconlin 1. ".'
My CommIssIOn expIres: 7 Jl(5_~ If)
This instrument was drafted by
and upon recording return to:
Ann K. Comer, Esq.
Quarles & Brady LLP
411 E. Wisconsin Avenue
Milwaukee, WI 53202
QBMKE\61 13678.8
31
Exhibit A
(Legal Description of Project Land)
Project Land encompasses Lot 1 on Certified Survey Map No. 5840 and Lot I and 2, and
Outlot 1 on Ceertified Survey Map No. 5879.
QBMKE\61 13678.8
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PNlT OF LOTS 1. 2, 3, A: 4 OF SLOCK C OF WESTERH NlOlIlOH TO OSHKOSH, mo PAm' :IF LOTS 111, 20, 21, A: 22 OF
BlOCK E Of' WESTERII ADCmoN TO OSHKOSH, me PAm' OF LOT 12 me !U Of' LOTS 13, 14, 15, 15, \7, 15. 1~, 20, 2\,
A: 22 OF BlOCK I' OF WES1tIlN ADDITION TO OSHKOSH, mo PNlT Of' LOTS 14, 15, 15, A: 2\ mD M1. OF LOTS 17, 18,
1~, a: 20 Of' OF BLOCK II OF W!:STERH MlOIIlOII TO OSHKOSH, me ALl. OF LOTS 2, 3, 4, 5, e, 7, 8, a: 12 mD PNlT OF
LOTS \. 9, 10, a: 11 OF U8BEYS IlEPl.AT, mo PMT OF LOT 2 OF CERlIF1ED SURVEY loW' NUt.lBER 1579. mD AlL OF LOTS
I me 2 OF CERllFlEl> SURVEl' loW' HUMBER 24al. mD AU. Of' 0I11\.0T I OF CER11FlEl> SURVEY loW' HUt.lBER 15712. mD
PNlT OF '(N;ATEl> BaL !'VoCE. WNlIlEll 5lREET, HID IWlCKOCK STREET.
BEING A PNlT 01' lllE SOl1Ili~ 1l OF lllE IlORlHE>sr II mo OF lllE 1lORlIl~ " OF lllE SOUlliTll~ " OF
SECIION 23, TOWllSHIP 18 1lORlIl, RANGE 1 8 ~. FIRST WNiD, CllY OF OSHKOSH, WlNNEBIlGO 00VIf/Y. WlSCOHSIN.
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DRAWN BY
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12-30091
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12 14 05
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PART OF l.OJS 1, 2, J. cIc 4 Of' 9UlCK C OF WESmlN nJIlllION 1ll OSlIKOSIl, mD PART OF lOTS III, 20, 21, cIc 22 OF
BLOCK E OF' WESTERN ADDITION 1ll OSIlKOSH. mD PART OF' LOT 12 mD 1LL OF l.OJS 13, 14. 15. 18. 17, 18. 19, 20. 21,
d: 22 OF BlOCK r OF WESTERN ADDIl10N 1ll OSIlKOSH, NlD PoIRT OF LOIS 14. 15. 16, cIc 21 AKD All. OF LOtS 17, 18
19, " 20 OF OF Bl.OCK G OF WESmUl AIlOII1ON 1ll OSl\KOSIl, mD AU. OF' LOIS 2. 3, 4-, II, 8, 7, 8, cIc 12 HID PART OF
l.01S 1, 9, 10, " 11 OF U9BE't'S IW'IAT, AND PART OF !.aT 2. OF CERlIFlID SlJIr\'E'( loW' NUMBER 1879, AND All. Of' l.OJS
I AKD 2 OF CERllFlED SIt,'Ni' ~~~BE1lsJfJ~"t ~ =, ~r =~ =. loW' NUIolBEIl 5712, AKO
BElIIG A. PART OF lllE SOUIlfEA.ST " or lllE NORrHe:A.Sr " NlD Of 1llE NORlMe:1ST "OF 1llE: SO\l1H11le:1ST " or
SECIIOH 23, lOWllSliIP 18 HORlH, IlNlGE 18 E"A.ST, FIRSf WHlO, Cl1Y OF OSl\KOSIl, W1IlHEBAGO COUlftY, WISCOIlSIH.
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SURVEYORS CERTIFICATE
I, Michael J. Ol.en, registered land surveyor, hereby certify: That In full compliance with the provisions of Chapter 236.
section 236.3'" of the Wisconsin statutes, the land Subdlvl.ion Ordinance of Wlnnebogo County, and the City of Oshkosh,
and under the direction of the City of Oshkosh, owner of sold land. I hove surveyed. divided and mapped the fallowing land
being port of lots I, 2, 3, & ... of Block C of Western Addition to 'Oshkosh, and port of lots 19, 20, 21, & 22 of Block
E of Western Addition to Oshkosh. and pan of lot 12 and 011 of lots 13, 14, '15. 16, 17, 16, 19, 20, 21. & 22 of Block
F of Westem Addition to Oshkosh. and port of lots 14, 15, 1e, & 21 and 011 of Lots 17, 18, 19, & 20 of Block G of
Western Addition to Oshkosh. and 011 of Lots 2, 3, 4, 5. 6. 7. 6. '" 12 and port of Lots 1, 9, 10, & 11 of Ubbey's
Replot, and part of Lot 2 of Certified Survey Mop number 1579. and all of Lots 1 and 2 of Certified Survey Map number
2481, and 011 of Outlot 1 of Certified Survey Mop number 5712. and part of vocated Bell Place, Warren Street, and
Hancock street. Being a port of the Southeast 1( of the Northeast J( and of the Northeast )( of the Southeast " of
Section 23, Township 1 B North, Range 16 East. FIrst Word, City of Oshkosh, Winnebogo County, Wisconsin, more particularly
described as follows: .
Commencing at the East J( corner of said Section 23; th,mes S89'34'30"W along the south line of the Northeast J( of sold
section, 70.48 feet to a point on the west right-ol-woy of Jackson street also being the Point of Beginning; thencs along
said right-of-way SOl'20'11"E. 84.00 feet; thence continuing along said right-of-way SOl'34'09"E, 76.42 feet; thence
continuing along sold right-of-way SOI'24'37"E, 284.26 feet to the northerly right-aI-way of Marlon Rood; thence along
sold right-aI-way N65'54'10"W, 427.57 feet; thence continuing along sold right-of-way N65'46'22"W, 257.65 feel to 0
point 19.00 feet southeasterly of the southwest comer of Lot 19 of Block E of Western addition to Oshkosh; thence
N29'21'OO"E, 132.15 feet to 0 point on the centerline of vacated Hancock Street at the north extension of the west line of
said Lot 19; thence N3723'42.E, 15.13 feet 010n9 the south extension of the east line of Lot 22 of Block F of Westem
addition to Oshkosh: thence along a line parallel to the centerline of vacated Hancock Street N5Y46'13"W. 60.03 feet to a
paint on the south extension of the west line of sold Lot 22: thence N37'27'03"E, 134.66 feet along the west line of said
Lot 22 to the northwest corner 01 sold Lot 22; thence N5Y4S' 43"W, 2.00 feet along the south line of Lot 12 01 810ck F
of Western odllition to Oshkosh: thence N3T17'27.E. 61.49 feet along 0 line parallel to the eost line of said Lot 12;
thence S53"46'43"(, 2.00 feet to 0 point on the east line 01 sold lot 12: thsnce N37'17'27.E. 80.11 leet along the eaet
line of said Lot 12 and its extension to 0 point on the southerly right-of-way of Riverwoy Drive; thence along said
right-of-way S5....04.0S.E. 6S.37 feet; thence 010n9 the easterly right-of-way of Rlverway Drive 39.78 feet along <I curve
to the right having a radius of 25.00 feet. whose chord bears N08"14'O+"W. 35.71 feet: thence continuing along said
right-aI-way N3720'49.E, 197.S5 feet: thence conUnulnQ along sold rlgnt-of-way 39.10 feet along 0 curve to the right
having 0 radius of 25.00 feet. whose chord bears N82'09'07'E, 35.23 feet to a point on the southerly right-of-way of
Pearl Avenue; thence along sold right-of-way S53'02'34.E, 229.75 feet; thence continuing along said right-Of-WaY 22.56
leet along a curve to the right having a radius of 25.00 feet, whose chord bears 527'11'23.E, 21.80 leet to a point on
the west right-of-way of Jackson Street; thence along said right-of-way SOI'20'11.E, 212.53 feet to the point of
beginning.
Sold parcel contains 318,981 square feet or 7.323 acres more or les..
Said parcel Is subject to easements of record.
That the survey of sold land was done under my dIrect supervision and the map hereon Is 0 true and accurate
representation of the exterior boundariee. and the division thereof,
MICHAEL J. OLSEN 572577
REGISTERED LAND SURVEYOR
DECEM8ER 23, 2005
THIS IS AN ORIGINAL SURVEY
DOCUMENT IF THE PROFESSIONAL
SEAL IS IMPRINTED IN RED AND
SIGNED IN BLUE
SHEET
PROJECT No.
CADD FILE
DRAWN BY
DATE DRAWN
2 OF 3
12-30091
l.lIXllHH.t91
CDH
12 14 D5
CERTIFIED SURVEY MAP
PART Of' LOTS I, 2, 3, " 4 Of' BLOCK C Of' WESmlN AIlDlTlON III OSHKOSH, AND PNrr OF' LD1S 19, 20, 21. dI 22 OF'
BLOCK E Of WESIEIlN NllllllOIIlll OSHKOSH, mD PART Of urr 12 AND ,r,u, Of LD1S 13, 14, IS, 18, 17, 18, 19, 211, 21,
'" 22 Of BI.OCJ( r Of' YIESI'EIlN AllOOlON TO OSHI<OSH. AND pm or lDlS 14. IS, 18, '" 21 AND N.J.. Of LOTS 17, lB,
19, '" 20 OF Of' BLOCK G Of WESTERN ADOlI1OH III OSHI<OSH. AND ILl. Of' LOTS 2, 3, 4, 5, 6, 7, B, 10 12 AND PART OF
LOTS 1, 9. 10. dI II Of' UllBEY'S REPLAT. AND PART OF urr 2 OF CERl1FlED SURVEY loW' NUlolBER 1570, MD ILl. or LOTS
I AND 2 OF CERTIflEl> SURVEY loW' NUMBER 2481, AND AU. Of Ol1ll.OT I OF' CEImFIED SURVEY loW' NUtoIBER 5712, AND
PAm: OF VACA'IEll BElL PlACE:. WiIRIlEN S11IEET. NlD HANCKOCK smar.
BEING A PART OF WE SOlJTllEAST l( OF' tHE NORlllEAST l( MD OF WE NORlllEAST l( OF tHE SOlllHTHEAST J( OF .
SECllON 23, TOWNSHIP I II NORlll, AANGE I 6 E"AST, FlRST WARD, ClIY OF OSHKOSH, W1NNEBAGO COUKlY, WISCONSIN.
5i16
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Cl:JI'I.ullln9' EnQlln_llrl:
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92O-4-etl-'S711
MUNICIPAL OWNER'S CERTIFICATE
City of Oshkosh. a municipality duly organized and existing under and by virtue af the Laws of the State af Wisconsin, os
owner, does hereby certify that said municipality caused the. land described to be sUNeyed, divided, and mapped os
represented on this mop. In aC.cordonce with the provisions of Chapter 236 of the Wisconsin Statutes and the Land
SUbdivision Ordinance of the City of Oshkosh.
In Witness whereof, the said City of Oshkosh, has caussd tilese presents to b. signed by"
Richard A. \bll~k
Its
City Mmager
, and
countersigned by
}\{)gel a G. Koch
, Its
[)oputy City Cl erk
, at
Cshkosh City Hall
, this
27th
day of
L'eca1ter'
.20~.
City of OSh;~
~9k
City Manager
~~~~~~~
City Clerk, ~"""~J
'-
STATE OF WISCONSIN)
:SS
WINNEBAGO COUNTY) f\ .
Personally come before me this fA rttt'-dOY Of-J,..J^-tQ~ ,2005 the aforementioned representatives of
the City of Oshkoeh, known to me to be the persons who eKsculed the forgoing instrument and acknowledged the sams.
L&1?1<liJ.- ~. au_~
Notary pull.:. U My commissIon explfBB 5' -14. 6lP
Winnebago County, Stcte of Wisconsin
CITY OF' OSHKOSH PLANNING COMMISSION
CERTlF'ICATE OF" APPROVAL
This Certified Survey Map of part of the Southeast 1/4 cf the Northeast 1/4 and port of the Northeast 1/4 of ths
Southeast 1/4 In. Section 23, Township 18 North, Range 16 East, Aret Ward, City of Oshkosh, Wlnnebago County, Wisconsin,
Is here approved.
/
MICHAEL J. OLSEN 5-2577
REGISTERED LAND SURVEYOR
DECEMBER 23, 2005
THIS IS AN ORIGINAL SURVEY
DOCUMENT IF THE PROFESSIONAL
SEAL IS IMPRINTED IN RED AND
SIGNED IN BLUE
SHEET 3 OF 3
PROJECT No. 12-30091
CADD Fl LE 231QHI-l-tSlI
DRAWN BY CDH
DATE DRAWN 12 14- 05
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CERTIFIED SURVEY MAP
ALL OF BLOCK A OF WESTERN ADDrnON TO OSHKOSH EXCLUDING TW.T PART DF LOT B LYING WITHIN THE JACKSON
STREET RIGHT-OF-WAY. AND ALL OF OLll1.OT 1 OF CER11F1ED SURVEY MAP NUMBER S8.w. AND MARION ROAD LYING
NORTHERLY OF LOTS 3 THROUGH 8 OF BLOCK A OF WES1ERN ADDmON TO OSHKOSH, AND V~TED JAY STREET LYING
SOUTHERLY OF IAARI0N RllAO, AND AlL OF LOTS 2 THROUGH 14 AND PART OF LOTS 0 AND 1 OF BLOCK D OF WESTERN
ADOmON TO OSHKOSH.
BEING A PART OF THE SOUTH 1/2 OF THE NORTHEAST 1/4 AND PART OF THE NORTH 1/2 OF THE SOUlHTHEAST 1/4 OF
SECllON 23, TOWNSHIP 18 NORTH, RANGE 16 EAST, FIRST WARD, CllY OF OSHKOSH, WINNEBAGO COUNTY. WISCONSIN.
517
([~
STS Conllultants Ltd.
Comn.lltlno En'il1nlll!rl
1035 Kllplllr Drlvll
Grolln Bay, "'" 54.311
920-0468-1978
SURVEYORS CERTIFICATE
I, Michael J. Olsen. registered land surveyor. hereby certify: That in full compliance with the provisions of Chapter 236,
section 236.34 of the Wisconsin statutes, the Land Subdivision Ordinance of Winnebago County, and the City of Oshkosh,
and under the direction of the Redevelopment Authority of the City of Oshkosh, owner of said land, I have surveyed, divided
and mopped the following land being all of Block A of Western Addition to Oshkosh excluding that port of Lot 8 lying within
the Jackson street right-of-way, and '011 of Outlot 1 of Certified Survey Map Number 5840, and vacated Marion Road lying
northerly of Lots 3 through 8 of Block A of Western Addition to Oshkosh, and vacated Joy Street lying southerly of Marion
Road, and 011 of Lots 2 through 14 and port of Lots 0 and 1 of Block D of Western Addition to Oshkosh. Being' 0 port
of the South 1/2 of the Northeast 1/4 and port of the North 1/2 of the Souththeast 1/4 of Section 23, Township 16
North, Ronge 16 East, First Word, City of Oshkosh, Winnebogo County. Wisconsin, more fully described os follows:
Commencing at the East 14 corner of said Section 23; thence SOI'17'26"E along the .east line of the Northeast 1/4 of
said section, 403.23 feet: thence S88'42'34"W, 69.52 feet to 0 point on the west right-of-way of Jackson Street also
being the Point of Beginning; thence along said right-oF-way S01'24'37"E, 431.05 feet to 0 point on the Northeasterly
Shore line (U.S.' Harbor Line) of the Fox River os established by a General Ordinance of the City of Oshkosh per Document
No. 276204 of Winnebago County Registry; thence along said Northeasterly Shore line (U.S. Harbor Line) N6S'43'26"W,
716.64 feet; thence continuing along said Northeasterly Shore line (U.S. Harbor Line) N62'10'26"W, 822.65 feet; thence
N37'OS'OO"E, 245.13 feet to a point on the southerly right-of-way of Marion Rood; thence along said southerly
right-Of-way S65'46'22"E. 886.59 feet; thence continuing along said southerly right-of-way S65'54'10"E, 135.02 feet;
thence continuing along said southerly right-of-way NBS'20'29"E, 60.73 feet; thence continuing along said southerly
right-Of-WaY N88'33' 48"E, 19.4.29 feet; thence continuing along said southerly right-of-way S4.99 feet on a curve to the
right having 0 radius of 35.00 feet, whose chord bears 546'25'24 "E, 49.51 feet to a point on the westerly right-of-way <;>f
Jackson Street and the Point of Beginning, . .
Said parcel contains 419,963 square feet or 9.641 acres more o.r less.
Said parcel is subject to easements of record.
That the survey of said land was done under my direct supervision and the map hereon is 0 true and accurate
representation of the exterior boundaries and the division thereof.
MICHAEL J. OLSEN S-2577
REGISTERED LAND SURVEYOR
APRIL 25. 2006
THIS IS AN ORIGINAL SURVEY
DOCUMENT IF THE PROFESSiONAL
SEAL IS IMPRINTED IN RED AND
SIGNED IN BLUE
SHEET
PROJECT No.
CADD FILE
DRAWN BY
DATE DRAWN
2 OF 3
200602516
G200602516-CSM
CDH
4 19 06
CERTIFIED SURVEY MAP
AU. OF BLOCK 1. OF WESTERN MlOmON TO OSHKOSH EXCLUDING TW.T PART OF LOT B L'l1NG wmllN THE JACKSON
STREET RIGHT -OF-W1.Y, mo AU. OF Ol.lllOT I OF CERTIFIED SURVEY f.W' NUMBER 5B4O. !.NO I.IARION ROMl LYING
NORTHERLY OF LOTS 3 THROUGH B OF BLOCK II OF WESTERN MlOmON TO OSHKOSH, AND Wi:llTED o!1IY STREET LYING
SOUTHERLY OF MARION ROAD. AND AU. OF LOTS 2 iHROUGH 14 mo pm OF LOTS 0 AND 1 OF BLOCK D OF WESTERN
MlOmON TO OSHKOSH.
B~NG II PART OF iHE SOUTH 1/2 OF iHE NORTHEAST 1/4 mD PAAT OF THE NORTH 1/2 OF iHE SOUiHTHEAST 1/4 OF
SEcnON 23. TOWNSHIP 18 NORTH, RANGE 16 EAST, FIRST WARO, CIlY OF OSHKOSH, WINNEBAOO COUNTY, WISCONSIN.
577
~~
STS Consultantll Ltd.
Conaultlng Envlneers
1GaS Kepllllr Drive
Oreeln Bey, WI 5...0311
9'20-'4-e1B-1978
MUNICIPAL OWNER'S CERTIFICATE
The Redevelopment Authority of the City of Oshkosh, a separate body public organized and existing under and by virtue of
the Lows of the State of Wisconsin. os owner, does hereby certify that said Authority caused the land described to be
surveyed, divided, and mopped os represented on this map, in accordance with .the provisions of Chapter 236 of the
Wisconsin Statutes and the Land Subdivision Ordinance of the City of Oshkosh.
In Witness whereof, the said Redevelopment Authority, has caused these presents to be signed by
~c.l< ~OY\ \2.. . 'ltl \'\ t\ ~ its
countersigned by ~h:>..r+ ~lA...~
~Y\ hsh
t:)!-'t'c.IA-~I\) ~~ re.rk i-'
rand
,its '. C-~\rM.A..l'\
, at
tJ')5>L~1 r\,
, this
a/~ day of ~cD.
, 20..12!.e-.
f Oshleosh:
STATE OF WISCONSIN)
:SS
WINNEBAGO COUNlY)
. ""~
Personally come before me th,s....<Z:Ll2--doy of
the Redevelopment Authority of the City of Oshkosh,
and acknowledged the some.
~ r \ . 2006 the aforementioned representatives of
kn~1.~ :~ me to be the persons who executed the forgoing instrument
-~~ \. \)~;.,.
My commission eXPires-=r.~lli I Dl e
Notary .Public,
Winnebago County, State of Wisconsin
This Certi . Survey Map of port of the South 1/2 of the Northeast 1/4 and port of the North 1/2 of the Southeast 1/4
in Sect" n 3. Township 18 North, Range 16 East, First Ward, City of Oshkosh, Wlnnebogo County, Wisconsin, is hereby
approed ~ ~' ~/ /~
~~t~
SHEET
PROJECT No.
CADD FILE
DRAWN BY
DATE DRAWN
3 OF 3
200602516
G200602516-CSM
CDH
4 19 06
MICHAEL J. OLSEN S-2577
REGISTERED LAND SURVEYOR
APRIL 25, 2006
THIS IS AN ORIGINAL SURVEY
DOCUMENT IF THE PROFESSIONAL
SEAL IS IMPRINTED IN RED AND
SIGNED IN BLUE
Exhibit B
(Marion RoadlPearl Avenue Redevelopment Phase II Area)
QBMKE\6113678.9
-33-
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Exhibit C
General Remediation Plan
Marion RoadlPearl A venue Redevelopment Phase II Brownfield Properties
Redevelopment of the Marion RoadlPearl A venue Brownfield properties will continue to
occur in a manner that reduces the overall economic impact of environmental
remediation. Environmental conditions at these properties are characterized by elevated
levels of volatile organic compounds, petroleum volatile organic compounds, RCRA
metals, and polynuclear aromatic hydrocarbons. Fill soils ranging in thickness from 5 to
18 feet are present throughout the anticipated redevelopment area. This fill material
typically consists of foundry sand, wood chips, concrete, gravel, sand, and buried organic
material. Due to the presence of this fill material, the Department of Natural Resources
will require an application to construct on a historic fill site.
In addition to the fill materials, other specific environmental conditions identified on the
riverfront properties including the following:
1. Chlorinated compounds impacting soil and groundwater quality were present in a
limited area in the southeast corner of the former Mercury Marine property. Soil
and groundwater with elevate:d concentrations of chlorinated compounds may be
considered hazardous waste.
2. Petroleum impacted soil near former underground and above ground storage tank
locations and former pump island locations. .
3. Concentrations of petroleum hydrocarbons in groundwater samples collected
from on-site monitoring wells.
4. Shallow groundwater elevations controlled, in part, by seasonal fluctuations of
the Fox River and the permeability of fill soils.
To successfully redevelop the riverfront parcels, while establishing and maintaining
environmental closure, direct contact with the underlying soils will be prevented,
groundwater collection and construction dewatering will be limited, and any soil fill
generated during construction will be managed as a solid waste. Redevelopment plans
QBMKE\61 13678.9
-34-
shall recognize the need to control environmental remediation costs, by incorporating the
following general elements:
1. Incorporate hardscaping and landscaping to reduce disturbance in the area of the
former chlorinated solvent release (southeast portion of the Mercury Marine
property).
2. Establish site grading to reduce the volume of soil which will be transported off
site as a solid waste, or potentially as a hazardous waste.
3. Utilize paved parking areas and hardscape to act as direct contact prevention caps,
eliminating the need for extensive excavation and disposal of underlying fill
material.
4. Although some areas of the brownfield properties north of Marion Road may be
suitable for conventional building foundations, consider constructing buildings
and other structures utilizing a pile foundation to reduce the amount of excavation
required and limit the potential for construction dewatering and groundwater
treatment.
5. Maintain a basement or lower level floor elevation above the normal groundwater
elevation to limit significant excavation of fill material, reduce the need for
construction dewatering and permanent dewatering to control groundwater
elevations.
This general remediation plan is established to provide an initial frame work for
designing site improvements along the Marion Road/Pearl Avenue Brownfield
redevelopment area. Details of environmental remediation plan for each parcel will be
developed, concurrent and in cooperation with detailed redevelopment plans with the
goal of obtaining a Certificate of Completion under the Voluntary Party Liability
Exemption program. Integrating environmental remediation with property
redevelopment will control costs and maintain the project momentum for all stakeholders.
QBMKE\6113678.9
-35-
Exhibit D
(Guaranteed Tax Payments)
QBMKE\6113678.9
-36-
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