HomeMy WebLinkAboutMK-1 LLC and MK-2 LLCDocument Number
DEVELOPMENT AGREEMENT
Document Title
Development Agreement between the City of Oshkosh, Wisconsin,
a Wisconsin municipal corporation, the Redevelopment Authority of the
City of Oshkosh, Wisconsin and MK -1 LLC and MK -2 LLC, Wisconsin
limited liability companies, for redevelopment of Lot 1 and Lot 2, of
CSM No. 6242, recorded as Doc. No. 1475152, Register of Deeds office,
3rd Ward, City of Oshkosh, Winnebago County, Wisconsin.
Drafted by:
Lynn Lorenson
City Attorney
Oshkosh, WI
REGISTER'S OFFICE
WINNEBAGO COUNTY, WI
RECORDED ON
88/1212W 8 63:54P1't
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 93.00
TRANSFER FEE
* OF PAGES 42
Name and Return Address
City Attorney's Office
Oshkosh, WI 54902 -1130
903 - 0130 -0000 and 903 - 0131 -0000
Parcel Identification No.
c
Development Agreement
This Development Agreement is made this2',51ay of e� , 2008, by and between
the City of Oshkosh, Wisconsin, a Wisconsin municipal corporation, and the Redevelopment
Authority of the City of Oshkosh, Wisconsin, and MK -1, LLC, and MK -2, LLC, Wisconsin
limited liability companies.
Recitals
The parties enter into this Development Agreement 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. Project Overview On or about August 26, 2003 the City of Oshkosh established;
the South Shore Redevelopment Area, as amended from time to time. The South Shore
Redevelopment Area is located in Tax Increment District No. 20. MK -1, LLC and MK -2, LLC
have made a proposal to the City to develop the Project Land (as hereinafter defined), which j
includes the former Miles Kimball corporate headquarters block bounded by S. Main Street on
the east, Nebraska Street on the west, W. Eighth Avenue on the north and W. Ninth Avenue on
the south in the South Shore Redevelopment 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 MK -1, LLC and MK -2, LLC, and the terms on
which MK -1, LLC and MK -2, LLC will develop that portion of the Project Land conveyed to itJ
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 South Shore 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:
(a) "Authority" means the Redevelopment Authority of the City of Oshkosh,
Wisconsin, its successors and assigns.
(b) "Available Tax Increment" means an amount equal to the annual gross tax
increment revenues actually received and retained by the City which is generated
in the immediately preceding calendar year by improvements made after
January 1, 2008 to the Phase I Development Site/Parcel.
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(c) "Annual Gross Tax Increment Revenues" equals the full equalized value
(real estate and personal property) of the Phase I Development Site/Parcel minus
the full equalized base value of the Phase I Development Site/ Parcel ($408,800
is the agreed upon amount of the full equalized base value of the Phase I
Development Site/Parcel) multiplied by the equalized tax rate for that calendar
year. This formula reflects the current methodology for calculation of tax
increment revenues, and the parties recognize and agree that future statutory
changes or changes in Department of Revenue practice for calculation of tax
increment revenues may result in changes to the formula.
(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 of the Project Lender's loan(s) for such Parcel
have been satisfied.
(g) "Completion Date" means: The dates set forth in Section 4 (d) below.
(h) "Developer" means: MK -1, LLC and MK -2, LLC, Wisconsin limited
liability companies, its permitted successors and assigns.
(i) "Development Site/Parcel" means: the legally described parcel in the
Phase I Area and the Phase II Area.
0) "General Contractor" means: For each Development Site/Parcel, the
general contractor hired by the Developer to construct the Parcel Project.
(k) "South Shore Redevelopment Area" means: The land shown on Exhibit B
attached hereto.
(1) "South Shore Redevelopment Plan" means: The City's redevelopment
plan governing the South Shore Redevelopment Area.
(m) "Phase I Area" means: The portion of the Project Land on the western
portion of the block bounded by S. Main Street on the east, Nebraska Street on
the west, W. Eighth Avenue on the north, and W. Ninth Avenue on the south, as
shown on Exhibit C attached hereto.
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(n) "Phase II Area" means: The portion of the Project Land on the eastern
portion of the block bounded by S. Main Street on the east, Nebraska Street on
the west, W. Eighth Avenue on the north, and W. Ninth Avenue on the south, as
shown on Exhibit C attached hereto.
(o) "Project" means: The improvements to be constructed and developed by
Developer on the Development Site/Parcel in the Phase I Area and Phase II Area
of the Project Land, as described in Section 4(a) and (b).
(p) "Project Land" means: The land described on Exhibit A attached hereto.
(q) "Project Lender" means: For the Phase I and Phase II Areas, one or more
mortgage lenders making the initial construction/permanent loan(s) for the
Project Development Sites/Parcels.
(r) "Project Plan" means: The Project Plan for the Oshkosh Tax Increment
District No. 20, dated June 2005, as amended from time to time.
(s) "Public Improvements" means those improvements described in Section 4
(c) below.
(t) "TIF District" means: Oshkosh Tax Increment District No. 20.
(u) "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, at its 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 Phase I Development
Site/Parcel and the Phase II Development Site/Parcel to the Developer.
4. Project
(a) Development Sites/Parcels — The Project covers two development
sites /parcels to be created on the former Miles Kimball Company block bounded
by South Main Street, Nebraska Street, W. Ninth Avenue, and W. Eighth
Avenue. See attached Exhibit A identifying the Project Land within which the
Phase I Development Site/Parcel and Phase II Development Site/Parcel are
located.
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(b) Project Scope. MK -1, LLC and MK -2, LLC will undertake a mixed use
project in two phases. The Phase I Project will entail construction of four 8 -unit
multiple family townhouse buildings on the Phase I Development Site/Parcel (the
westerly portion of the block). The Phase II Project will entail renovation of an
existing four story building on the Phase II Development Site/Parcel (eastern
portion of the block), with commercial uses proposed on the ground floor and
residential apartments in the upper three floors. See attached Exhibit B which
shows the Phase I and Phase II site plans.
(c) Public Improvements and Activities:
(i) Sidewalk/Street Improvements. The City will reconstruct the
sidewalks on all street frontages, and reconstruct portions of W. Ninth
Avenue and W. Eighth Avenue adjacent to the block.
(ii) Undergrounding of Utilities. The City will work with Wisconsin
Public Service Corporation to determine the extent to which
undergrounding of utilities can be implemented.
(d) Schedule of Development
(i) Phase I Area: MK -1, LLC will begin construction of two of the
four townhouse apartment buildings in Summer, 2008, with substantial
completion of the first two buildings scheduled for December, 2008.
Initiation of construction of the two remaining townhouse buildings will
occur by no later than Fall, 2008, with substantial completion of these
buildings scheduled for December, 2009.
(ii) Phase II Area: MK -2, LLC proposes to begin the renovation of the
four story building on the block by no later than 12 months from the date
of execution of the Development Agreement. If MK -2, LLC does not
initiate construction within the 12 month time frame, the RDA may grant
an extension to MK -2, LLC or solicit proposals for the disposition of the
Phase II Area to another developer.
(e) Estimated Project Values. Based on a review of the project proposal by
the City Assessor, it is estimated the value of the Phase I Area, upon completion,
will be approximately $1,760,000, while the estimated value of the Phase II Area
will be, upon completion, approximately $850,000.
5. City/RDA Undertakings Prior to Closing of Project Land in Phase I and
Phase II Areas (Apply Separately to each Project Area)
(a) Review and, if acceptable, approve all private development plans, related
zoning and approvals necessary for undertaking the Phase I and Phase II projects.
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(i) Rezoning by City of block from M -2 Central Industrial to C -3
Central Commercial with a Planned Development Overlay District.
(ii) RDA review and approval of Development Plan for the Phase I
and Phase II Areas.
(iii) Plan Commission and Common Council to provide Zoning
Ordinance approval by review and action on Conditional Use Permit/
Development Review request for Phase I and Phase II Areas.
(b) Approve all documents of conveyance of Development Site/Parcel in the
Phase I and Phase II Areas.
(c) Pay /Go Commitment by City for Phase I Area Project in the form of a
taxable tax increment revenue bond (the "TIF Bond ") in the amount of not to
exceed $375,316 to reimburse the owner of the Project for construction of the
townhouse buildings in the Phase I Area.
(i) The TIF Bond will be issued and delivered to MK -1, LLC only
upon completion of the construction and site improvement work and
submission of documentation satisfactory to the City reflecting actual
costs expended on such work. MK -1, LLC understands that all of the
costs associated with that work must be paid for by MK -1, LLC up front
and that MK -1, LLC, if it owns the Phase I Development Site/Parcel, will
be reimbursed for those costs only if the development on the Phase I
Development Site/ Parcel creates Available Tax Increment and such
Available Tax Increment is appropriated by the City Council to payment
of the Bond. Interest and principal will be paid each year by the City to
MK -1, LLC, if it owns the Phase I Development Site/Parcel, on the TIF
Bond from Available Tax Increment from the Phase I Development
Site/Parcel pursuant to the schedule set forth on Exhibit C attached
hereto, but only to the extent such Available Tax Increment exists and
only if appropriated by the City Council. 'If there is no Available Tax
Increment from the Phase I Development Site/Parcel, then the City is not
required to pay MK -1, LLC on the TIF Bond.
(ii) Payment on the TIF Bond shall be subject to the following
conditions:
(1) the existence of Available Tax Increment from the Phase I
Development Site/Parcel.
(2) future annual appropriation of the payment by the City
Council, and
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(3) MK -1, LLC, if it is the owner of the Phase I Development
Site/ Parcel, not being in default under the Development
Agreement governing the development by MK -1, LLC, if it is the
owner of the Phase I Development Site/Parcel.
(d) A more detailed description of the provisions of the TIF Bond is attached
hereto as Exhibit D.
6. Developer Undertakings Prior to Closing on Development Sites/ Parcels
(Apply Separately to Each Development Site /Parcel)
(a) Prepare Development Plan and submit for City/RDA review and approval,
including all required zoning.
(b) Prepare Development budget and schedule for construction for RDA
approval. Development budget to show that Estimated Project Values will be
achieved for Development Sites/Parcels.
(c) Prepare and provide plans and specifications for Development Site/Parcel.
(d) Prepare and provide evidence of construction related contract(s) for
Development Site/Parcel.
(e) Secure and provide evidence of construction and permanent financing and
equity necessary to complete project on approved Development Site/Parcel.
(f) Secure all permits and approvals necessary for Development Site/Parcel.
(g) All of the above in form and substance satisfactory to City.
7. Closing Activities
(a) At closing Developer will:
(i) Close financing for Development Site/Parcel.
(ii) Execute construction contract for Development Site/Parcel or
provide assurance to the satisfaction of City/RDA of the existence of a
binding contract for the construction of the Development.
(iii) Deliver appropriate representations and warranties.
(b) At closing RDA will:
(i) Convey by deed the Development Site/Parcel.
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(ii) Conveyance will be by payment of $l.
8. Environmental Phase I and Phase II Environmental Assessments have been
undertaken for the block. Copies of these reports will be provided to the developer.
9. Phase Il Area Development Assistance
(a) City/RDA may consider issuance of a separate taxable tax increment
revenue bond ( "TIF Bond ") in support of the renovation project proposed in the
Phase II Area, based on a determination of need and an appropriate financial gap
analysis.
(b) City/RDA will also seek funding support through the State Division of
Housing for funds to assist with renovation of the upper floor space for
residential apartments in the four story building on the Phase II Development
Site/Parcel.
10. Representations and Warranties and Covenants of Developer/Parcel
Developers. The representations and warranties of the Developer are as follows:
(a) All copies of financial statements, documents, contracts and agreements
which Developer has furnished and will furnish to the City and the Authority, are
and will be true and correct in all material respects.
(b) Developer and its members have 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 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 substantial 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.
(d) No statement of fact by Developer contained in this Agreement and no
statement of fact furnished or to be furnished by 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. Developer has all necessary licenses, permits and franchises to
own its assets and properties and to carry on its business. 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 constitute the valid and binding obligations of 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 obligations
pursuant to this Agreement will not violate or conflict with Developer's articles
of organization or operating agreement or any indenture, instrument or agreement
by which Developer is bound, nor will the execution, delivery, or performance of
Developer's obligations pursuant to this Agreement violate or conflict with any
law applicable to Developer, as the case may be, or the Project.
(h) There is no litigation or proceeding pending or threatened against or
affecting Developer that would adversely affect the Project or Developer or the
enforceability of this Agreement, the ability of Developer to complete the Project
or to cause the completion of the Project or the ability of Developer to perform its
obligations under this Agreement.
(i) 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 Developer is not 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.
0) Developer will not, 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.
(k) 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, and
General Contractor's books and records pertaining to the development and
construction of any Parcel Project.
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Neither the City nor the Authority assumes any obligation to 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. The
fact that City or the Authority may make construction reviews shall in no way
relieve 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.
(1) 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 with respect thereto.
(ii) Promptly notify City and Authority of the commencement of any
litigation or administrative proceeding that would cause any
representation and warranty or covenant of Developer contained in this
Agreement to become untrue in any material respect or affect developer's
obligations under this Agreement.
(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 an
investigation, clean -up, removal, remedial action or other response by or
on the part of Developer under any environmental laws, rules, regulations
or ordinances or which seeks damages or civil, criminal or punitive
penalties from or against Developer for an alleged violation of any
environmental laws, rules, regulations or ordinances.
(m) 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. 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 10(m) shall not apply to such Parcel Developer other than
Developer.
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(n) 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.
(o) Except for each Project Lender's loan(s), Developer will not 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.
(p) Except for each present lender's loan(s), developer will not mortgage or
otherwise place a lien or encumbrance on the Project Land or the Project without
first 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.
The representations and warranties contained herein shall be true and
correct at all times during the term of this Agreement. Developer shall comply
with all covenants contained herein at all times during the term of this
Agreement.
11. 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 permit 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.
12. Insurance Both during and after construction of the Project, Developer shall
maintain the following insurance policies to be placed with insurers who have an A.M. Best
rating of no less than A- and a Financial Size Category of no less than Class VI, and who are
authorized as an admitted insurance company in the State of Wisconsin:
(a) Property coverage to be written on a "special perils" or "all risk perils"
basis. Coverage to include collapse.
(b) Coverage shall be on a Replacement Cost basis.
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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.
13. Damage /Destruction Developer shall not 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 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 Section 4 (e) above.
14. Default The occurrence of any one or more of the following events shall
constitute a default ( "Default ") hereunder:
(a) 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 in this Agreement, or
any document or financial statement delivered by 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 shall breach or fail to perform timely or observe timely 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 such longer period of time as is necessary to cure the default as
long as 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 Project shall be abandoned for more than thirty
(30) consecutive days and Developer 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 any portion of the Project shall be damaged
by fire or other casualty and not be repaired, rebuilt or replaced as required by
Paragraph 13 above; or
(e) If there is a default in meeting the estimated project values set forth in
Section 4(e) above; or
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(f) Developer or any of its members or any Guarantor shall: (i) become
insolvent or generally not pay, or be unable to pay, or admit in writing its/his/her
inability to pay, its/his/her 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/his/her assets; or (iii) become the subject of an "order
for relief" within the meaning of the United States Bankruptcy Code, or file a
petition in bankruptcy, for reorganization or to effect a plan or other arrangement
with creditors; or (iv) have a petition or application filed against it/him/her in
bankruptcy or any similar proceeding, or have such a proceeding commenced
against it/him/her, 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 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 such receiver shall not be discharged within ninety (90) days after
his appointment; or (vi) adopt a plan of complete liquidation of its/his/her assets;
or
(g) If Developer shall cease to exist; or
(h) A default shall occur under any other loan or indebtedness of 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.
15. Remedies Upon the occurrence of any Default, without notice (other than the
notice required under paragraphs 14(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, 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 convey or lease any further
portion of the Project Land to Developer shall automatically terminate.
If any Parcel Project is not commenced or completed within the time periods set forth in
Section 4 (d) above, then in addition to all other remedies set forth herein, at the request of the
City or the Authority, the Developer 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, excepting the existing 4 -story building located on
the Phase II parcel, shall be removed and demolished at the cost of Developer prior to
reconveyance of the Parcel to the City or the Authority.
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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 Authority shall have any duty or obligation
whatsoever with respect to any of the matters so authorized.
16. 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, 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 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 joint venturer, shall be paid by Developer
and the joint venturer, as the case may be, to the City or the Authority, as the case may be, on
demand.
17. City's /Authority's Right to Cure Default In case of failure by 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 to comply with the documents,
contracts or agreements affecting the Project, and, in that event, the cost thereof shall be payable
by Developer to the City or the Authority, as the case may be.
18. 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.
19. Parking Developer and each Parcel Developer understand and agree that it shall
be Developer's obligation to provide adequate parking for each Parcel Project complying with all
applicable laws, rules, regulations and ordinances, at Developer's cost and expense.
20. Signage 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, at its expense.
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21. 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 agrees 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 agrees it 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
any 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.
22. 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 its 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 its
contractors, subcontractors, agents, employees, or 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 and/or its 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 at the Project or the Project Land of any environmental law, rule, regulation or
ordinance; (e) the failure of Developer to comply with any environmental remediation plan in
effect with respect to the Project Land; (f) claims arising under the Americans With Disabilities
Act, and any other laws, rules, regulations or ordinances; (g) the failure by 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 to
maintain, repair or replace, as needed, any portion of the Project.
BumsDevAgmtMKprop 14
6/17/08
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 22 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.
23. Fire and Safety Hazards Developer agrees to construct, or cause the
construction of, each Parcel Project in conformance with all fire and safety standards specified
by applicable law.
24. Nondiscrimination The City, the Authority, the Developer 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.
25. 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.
25. City /Authority Authorization The execution of this Agreement by the
Authority was authorized by Resolution #08 -03 of the Redevelopment Authority dated February
25, 2008 and by the City by Resolution #08 -81 of the City's Common Council dated March 11,
2008.
27. 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.
28. Brokers' Fees /Commissions In the event the Developer incurs any broker fee
or commission in connection with any transactions contemplated by this Agreement, the
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 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.
BumsDevAgmtMKprop 15
6/17/08
29. Miscellaneous
(a) Except as otherwise specifically set forth herein, the respective rights and
liabilities of the City, the Authority, the Developer under this Agreement are not
assignable or delegable, in whole or in part, without the prior written consent of
the other parties, except that rent and TIF bond payments may be assigned to the
Project Lender(s). The provisions of this 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 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 date
and time of delivery, air bill prepaid, or (iii) upon transmission if by 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, WI 54903 -1130
Attention: Jackson Kinney
Facsimile No.: (920) 236 -5053
If to the Developer:
BumsDevAgmtMKprop
6/17/08
MK -1 LLC; MK -2 LLC
905 Oregon Street
Oshkosh, WI 54902
Attention: Brian Burns
Facsimile No.: (920) 426 -1045
16
(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.
(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, no approvals given pursuant to 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.
(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.
0) 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 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 other person.
Developer further represent, warrant and agree, for themselves and their
successors and permitted assigns, not to make any assertion inconsistent with
BurnsDevAgmtMKprop 17
6/17/08
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, and its heir 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.
(n) A copy of this Agreement shall be recorded in the office of the Register of
Deeds of Winnebago County, Wisconsin, prior to the recording of the Project
Lender's mortgage(s), or any other mortgage on Project, it being understood by
the parties that until termination of this Agreement, 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.
(o) 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 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 party or the other drafted this Agreement or any term, covenant or
condition contained herein.
BumsDevAgmtMKprop 18
6/17/08
In Witness Whereof, this Agreement is executed as of the date first above written.
City of Oshkosh, Wisconsin
By:
Johi
Atte
Pam
Approved as to form:
E crenson, It Attorney
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally appeared before me this / of , 2008, the above named John Fitzpatrick
and Pamela R. Ubrig, Acting City Manager an 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.
c
l
4taryublic, e of Wsconsin
My Commission expires: / -13 —4
BumsDevAgmtMKprop 19
6/17/08
Redevelopment Authority
of the City of Oshkosh, 3W.
By:
Thomas Belter, Chaifina
Attest:_
Jackson
Approved as to form:
4 orenson, C
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
6nsin
Director
Personally appeared before me this o n day of - -I ' w__ , 2008, the above named Thomas Belter
and Jackson R. Kinney, Chairman and 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.
Notary Public, State of Wisconsin
My Commission expires: I '-)D �0
BumsDevAgmtMKprop 20
6/17/08
MK -1, LLC and MK -2, LLC,
Wisconsin limited liability companies
B w.o1
Brian Burns
STATE OF WISCONSIN )
)ss.
WINNEBAGO COUNTY )
Personally appeared before me thizL -?" day of 008, the above named Brian
Burns of MK -1, LLC and MK -2, LLC, Wiscons' limited liability companies, to me known to be
the person who executed the foregoing agreement on behalf of said limited liability companies
and by its authority.
.... h� .p
t.
(A PUB L\ ublic, of Wisconsin
iFO� W�S Commissio c pires:
BumsDevAgmtMKprop 21
6/17/08
Exhibit A
(Legal Description of Project Land)
EXHIBIT A - LEGAL DESCRIPTION
[former Miles Kimball block bounded by W. 9th Ave., S. Main St., W. 8th Ave. and Nebraska St.]
Lots 1 and 2, CSM No. 1475152, Vol. 1, page 6242, as recorded in the Register of Deeds Office,
3rd Ward, City of Oshkosh, Winnebago County, Wisconsin, more fully described as:
All of Block 10 in the Plat of the Original Third Ward (Lots 1 through 22) per Leach's Map of 1894,
except that part of Lot 22 dedicated for road right -of -way per City of Oshkosh Resolution Number
07 -356 (December 11, 2007), Third Ward, City of Oshkosh, Winnebago County, Wisconsin,
bounded and described as follows:
Commencing at the Southwest corner of Section 24, T18N -R16E; thence N89 0 51'26 "E, 589.95
feet along the South line of the Southwest 114 of said Section 24; thence N00 0 03'12 "W, 19.96 feet
to a found chiseled cross marking the Southwest corner of said Block 10, that being the Point of
Beginning; thence N00 °03'12 "W, 180.71 feet along the West line of said Block 10 to a found
chiseled cross marking the Northwest corner of said Block 10; thence S89 0 17'11 "E, 531.28 feet
along the North line of said Block 10 to a found chiseled cross marking the Northeast corner of
said Block 10; thence S00 °00'18 "E, 147.31 feet along the East line of said Block 10 to the
Northeast corner of that part of Lot 22 dedicated for road right -of -way per City of Oshkosh
Resolution Number 07 -356 (December 11, 2007), thence S45 0 20'00 "W, 46.39 feet along said
road right -of -way to a point on the South line of said Block 10; thence N89 0 19'42 "W, 498.12 feet
along the South line of said Block 10 to the Point of Beginning.
Said property containing 95,334 square feet or 2.189 acres, more or less, and being all of
Winnebago County parcel number 90301300000. Said property is subject to easements and
restrictions of record. Bearings are referenced to the Winnebago County Coordinate System.
prepared by: STS Consultants; 6/2008
22
1 4'7s 1 s2
REGISTER'S OFFICE
WINNEBAGO COUNTY, MI
RECORDED ON
Val. I YJ • Gaya.
06/19/2008 02:00PM
JULIE PAGEL
REGISTER OF DEEDS
RECORDING FEE 15.00
TRANSFER FEE
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23
CERTIFIED SURVEY MAP
ALL OF BLOCK 10 IN THE PLAT OF THE ORIGINAL THIRD WARD (LOTS 1 THROUGH 22) PER LEACH'S MAP STS I AECO M
OF 1694, EXCEPT THAT PART OF LOT 22 DEDICATED FOR ROAD RIGHT -OF -WAY PER CITY OF OSHKOSH
RESOLUTION NUMBER 07 -356 (DECEMBER 11, 2007), h Mein
8 Nrvl, sheet•
THIRD WARD, CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN. o B3 8Wort 0Stm
SURVEYORS CERTIFICATE 62o23e.017e
wwwane.eaomme
C.'"a -k e,:m .
I, Craig D. Hansen, registered lend surveyor, hereby certify. That in full compliance with the provisions of Chapter 238, 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 eaid land. I have surveyed, divided, dedicated, and mapped the following land being all of Block 10 in the Plat of the Original Third Ward (Lots 1 through
22) per Leach's Map of 1894, except that part of Lot 22 dedicated for road right-of-way per City of Oshkosh Resolution Number 07-M (December 11, 2007
Third Ward, City of Oshkosh, Winnebago County. Wisconsin, bounded and described as follows:
Commencing at the Southwest comer of Section 24, T18N -R18E; thence N89'51'26•'E, 589.95 feet along the South line of the Southwest 114 of said Section 24;
thence N00'03'12 feet to a found chiseled cross marking the Southwest comer of said Block 10, that being the Point of Beginning; thence N00'03'12
180.71 feet along the West One of Bald Block 10 to a found chiseled cress markkV the Northwest comer of said Block 10; thence SOVIr11'E, 53128 feet along
the North One of saki Block 10 to a found chiseled cross marking the Northeast comer of said Block 10; thence SOVIV18'E, 447.31 feet along the East One of
said Block 10 to the Northeast comer of that part of Lot 22 dedicated for road right-of-way per City of Oshkosh Resolution Number 07-M (December 11, 2007),
thence S45'20'00'W, 46.39 feet along said road right -0f -way to a point an the South One of said Bbdr 10; thence N89'19'429N, 498.12 feet along the South Ina
of said Block 10 to the Point of Beginning.
Said property containing 95,334 square feet or 2.189 acres, more or less, and being all of Wkmebago County parcel
number 90301300000.
`` ,pt 1 t l 11 11 1 , 1t
Said property is subject to easements and restrictions of record. Bearings are referenced to
the WmnebagoCounty
\\ G N
\
Coordinate System.
`�s�,.....;s�/�
That the survey of said land was done under my direct supervision and the map hereon is a We and accurate
CRAIG
representation of the exterior boundaries thereof.
* tiAN D .
z�.�,,
L -ate ^�
5 -2840 '
CRAIG EN V2840
REGISTERED LAND SURVEYOR
APPL ETON
JUNE 18, 2005
T HIS I S AN ORIGINAL SUR VEY
i '. .• 4(Z-
• • • • • O \%
S EAL hP UNTEDINREDANDS
\
".
l �s
/ aSI.IR V
MUNICIPAL OWNER'S CERTIFICATE
The Redevelopment Authority of the City of Oshkosh, a separate body public organized and existing under and by vktue of the Laws of the State of Wisconsin, as
owner, does hereby certify that said Authority caused the land described to be surveyed, divided, and mapped as represented on this map, In accordance with the
provisions of Chapter 238 of Ina Wisconsin Statutes and the Lend SubdMsion Ordinance of the City of Oshkosh.
In Witness whereof, the said Redevelopment Authority, has caused these presents to be signed by
Jadcsoft R. Kitmep
countersigned by MOMS meter
(fG05h Wisconsin
1 rat.
Chairman
STATE OF WISCONSIN)
Em aultive Director
and
A Cha im9R at
. this
20 2
:SS
WINNEBAGO COUNTY) via
Personally came before me this 1 9tt1 day of J tII7e ;Wfthe aforementioned representatives of the Redevelopment
Authority of the CRY of O shkosh. known to me to be the persons who executed the forgoing Instrument and acknowledged the same.
i�Uw Q 1"_ Atxnn/�
Notary Public, Winnebago County. State of Wisconsin
My commission expires f ?
CITY OF OSHKOSH PLANNING COMMISSION
CERTIFICATE OF APPROVAL
This Certilled Survey Map of part of Block 10 in the Plat or the Original Third Ward (Lots 1 through 22) per Leach's
Map of 4894, Third Ward, City of Oshkosh, Winnebago County, Wisconsin Is hereby approved.
- C - A7
-zoo
CI Commission • Date
R entat re
24
Exhibit B
(South Shore Redevelopment Area)
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Exhibit C
(Phase I and Phase II Areas)
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Exhibit D
(Resolution Approving Tax Increment "Pay Go" Bond)
MARCH 11, 2008 08 -82 RESOLUTION
(CARRIED 5 -2 LOST LAID OVER WITHDRAWN )
A RESOLUTION AUTHORIZING THE ISSUANCE OF A $375,316
TAXABLE TAX INCREMENT REVENUE BOND OF THE CITY OF
OSHKOSH, WISCONSIN TO MK -1, LLC OR ASSIGNS
WHEREAS the City of Oshkosh, Wisconsin (the "City ") has created its Tax
Incremental District No. 20 ( "TID No. 20 ") for the purpose of promoting blight elimination
and redevelopment in the City; and
WHEREAS the commercial and residential blight elimination and redevelopment
projects in TID No. 20 constitute a revenue - producing enterprise of the City which is
operated for a public purpose, and constitute a "public utility" within the meaning of
Section 66.0621 of the Wisconsin Statutes; and
WHEREAS in order to further its blight elimination and redevelopment efforts in
TID No. 20, the City proposes to enter into a Development Agreement with MK -1, LLC
or its assigns (the "Developer ") in substantial conformity with a Term Sheet dated
February 18, 2008 (collectively, the "Development Agreement "); and
WHEREAS pursuant to Section 66.0621 of the Wisconsin Statutes and the terms
of the Development Agreement, the City is to issue to the Developer a tax increment
revenue bond payable solely from certain tax increments generated from the Phase I
Development Site /Parcel (as defined in the Development Agreement) located within TID
No. 20 which are appropriated by the City Council;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Oshkosh, Wisconsin, as follows:
Section 1. Authorization of Revenue Bond For the purpose of financing blight
elimination and redevelopment projects in TID No. 20, as provided for under the
Development Agreement, the City shall issue its "Taxable Tax Increment Revenue Bond
(MK -1, LLC Phase I Development Project)" (the "Bond ") to the Developer in
consideration for the obligations undertaken by the Developer under the Development
Agreement. The Bond shall be in the principal amount of $375,316 or such lesser
amount as is provided in the Development Agreement. The Bond shall be dated its
date of issuance and shall bear interest at a rate per annum equal to 6.25 %, which
interest shall begin to accrue on the date of issuance of the Bond.
The Bond shall mature and the City's obligation to repay all or any portion of the
Bond shall terminate on November 1, 2032. Installments of principal of and interest on
the Bond shall be due and payable on November 1 of each year during the term of the
Bond, commencing on November 1 of the year interest begins to accrue through and
27
including the maturity date (each, a "Bond Payment Date "). The amount of the annual
payment of principal and interest due on each Bond Payment Date shall be equal to the
amount set forth on the schedule attached hereto as Attachment I. Each payment of
principal and interest shall be applied first to interest, then to principal.
The Bond shall be issued upon final negotiation and execution of the
Development Agreement in substantial conformity with the Term Sheet dated February
18, 2008, and shall be held in escrow by the City and delivered to the Developer only
upon (i) completion of the Phase I Development Project (as defined in the Development
Agreement) and (ii) submission of documentation satisfactory to the City evidencing
actual costs expended by the Developer on those TID No. 20 project costs for which
reimbursement is being provided.
"Available Tax Increment" means an amount equal to the annual gross tax
increment revenues actually received and retained by the City which is generated in the
immediately preceding calendar year by improvements made after January 1, 2008 to
the Phase I Development Site /Parcel.
The Bond shall be subject to prepayment in whole or from time to time in part at
any time, at the option of the City.
The schedule of payments on the Bond is found to be such that the amount of
annual debt service payments is reasonable in accordance with prudent municipal utility
practices.
The Bond shall be signed by the manual or facsimile signatures of the City
Manager and City Clerk of the City (provided that, unless the City has contracted with a
fiscal agent to authenticate the Bond, at least one of such signatures shall be manual),
and sealed with the corporate seal of the City, or a facsimile thereof.
The Bond, together with interest thereon, shall be payable only out of the Special
Redemption Fund hereinafter provided, and shall be a valid claim of the owner thereof
only against the Special Redemption Fund and the revenues pledged to such Fund
pursuant to this Resolution.
Section 2. Form of Bond The Bond shall be in substantially the form set forth
on Attachment II hereto.
Section 3. Payable Solely From Revenues The Bond, together with interest
thereon, shall be payable only out of the Special Redemption Fund as hereinafter
provided, and shall be a valid claim of the owner thereof only against the Special
Redemption Fund and from the revenues pledged to such fund, and shall be payable
solely from Available Tax Increment which has been received and retained by the City
in accordance with the provisions of Section 66.1105 of the Wisconsin Statutes, and
appropriated by the City Council to the payment of the Bond (hereinafter referred to as
"Revenues ").
I
2
As stated above, the application of Available Tax Increment to payment of the
Bond is subject to future annual appropriation by the City Council. However, the City
fully expects and anticipates that to the extent Available Tax Increment is generated and
received by the City, it will appropriate such Available Tax Increment to the payment of
the principal of and interest on the Bond.
The City shall have no obligation to make any payments on the Bond while the
Developer is in default under the Development Agreement.
Section 4. Special Redemption Fund For the purpose of the application and
proper allocation of the Revenues, and to secure the payment of the principal of and
interest on the Bond, the Special Redemption Fund is hereby created and shall be used
solely for the purpose of paying principal of and interest on the Bond in accordance with
the provisions of the Bond and this Resolution.
Uninvested money in the Special Redemption Fund shall be kept on demand
deposit with such bank or banks as may be designated from time to time by the City as
public depositories under the laws of Wisconsin. Such deposits of Special Redemption
Fund money shall be secured to the fullest extent required by the laws of Wisconsin and
the general investment policy of the City.
Money in the Special Redemption Fund, if invested, shall be invested in direct
obligations of, or obligations guaranteed as to principal and interest by, the United
States of America, or in certificates of deposit secured by such obligations and issued
by a state or national bank which is a member of the Federal Deposit Insurance
Corporation and is authorized to transact business in the State of Wisconsin, maturing
not later than the date such money must be transferred to make payments on the Bond.
All income from such investments shall be deposited in the Special Redemption Fund,
or deposited in the local government pooled- investment fund. Such investments shall
be liquidated at any time when it shall be necessary to do so to provide money for any
of the purposes for the Special Redemption Fund.
All Revenues shall be deposited in the Special Redemption Fund, and no other
fund is created by this Resolution.
Section 5. Application of Revenues to Payment of the Bond On each Bond
Payment Date, the City shall apply to the payment of the principal and interest due on
the Bond the Available Tax Increment which has been appropriated by the City Council
to the payment of the Bond. Revenues shall be applied first to the payment of any
interest due on the Bond Payment Date and then to the payment of principal due on that
Bond Payment Date.
If on any Bond Payment Date there shall be insufficient Revenues to pay the
principal or interest due on the Bond, the amount due but not paid shall accumulate and
be payable on the next Bond Payment Date until the final Bond Payment Date.
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If on the final Bond Payment Date, there remain amounts outstanding and unpaid
on the Bond, then all interest accrued but unpaid and the remaining balance of principal
of the Bond shall be deemed paid in full, it being understood that upon the final Bond
Payment Date, the obligation of the City to make any further payments on the Bonds
shall terminate. The City shall have no obligation to pay any amount of principal or
interest on the Bond which remains unpaid after the final Bond Payment Date and the
owner of the Bond shall have no right to receive payment of such amounts.
If for any reason (other then voluntary resolution of the City Council) TID No. 20
terminates prior to the final Bond Payment Date, and there remain amounts outstanding
and unpaid on the Bond, then all interest accrued but unpaid and the remaining balance
of principal of the Bond shall be deemed paid in full, it being understood that upon such
termination of TO No. 20, the obligation of the City to make any further payments on
the Bond shall also terminate. The City shall have no obligation to pay any amount of
principal or interest on the Bond which remains unpaid upon termination of TO No. 20
and the owner of the Bond shall have no right to receive payment of such amounts.
Section 6. Persons Treated as Owners; Transfer of Bond The City Finance
Director shall keep books for the registration and for the transfer of the Bond. The
person in whose name the Bond shall be registered shall be deemed and regarded as
the absolute owner thereof for all purposes and payment of either principal or interest
on the Bond shall be made only to the registered owner thereof. All such payments
shall be valid and effectual to satisfy and discharge the liability upon such Bond to the
extent of the sum or sums so paid.
The Bond may be transferred or assigned by the registered owner thereof only
with the consent of the City, by surrender of the Bond at the office of the City Finance
Director accompanied by an assignment duly executed by the registered owner or his
attorney duly authorized in writing. Upon such transfer or assignment, the City Finance
Director shall record the name of the transferee or assignee in the registration book and
note such transfer or assignment on the Bond and re -issue the Bond (or a new Bond or
Bonds of like aggregate principal amount and maturity).
The Bond may be exchanged for a new Bond or Bonds of like aggregate
principal amount and maturity.
Section 7. General Authorizations The City Manager and City Clerk and the
appropriate deputies and officials of the City in accordance with their assigned
responsibilities are hereby each authorized to execute, deliver, publish, file and record
such other documents, instruments, notices and records and to take such other actions
as shall be necessary or desirable to accomplish the purposes of this Resolution and to
comply with and perform the obligations of the City under the Development Agreement
and the Bond.
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4
In the event that said officers shall be unable by reason of death, disability,
absence or vacancy of office to perform in timely fashion any of the duties specified
herein (such as the execution of the Development Agreement or the Bond), such duties
shall be performed by the officer or official succeeding to such duties in accordance with
law and the rules of the City.
Section 8. Severability of Invalid Provisions If any section, paragraph or
provision of this Resolution shall be held to be invalid or unenforceable for any reason,
the invalidity or unenforceability of such section, paragraph or provision shall not affect
any of the remaining sections, paragraphs and provisions of this Resolution.
Section 9. Effective Date This Resolution shall be effective immediately upon
its passage and approval.
Adopted this 11th day of March, 2008.
Mayor
Attest:
City Clerk
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ATTACHMENT
(Schedule of Payments on Bond)
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33
ATTACHMENT II
(Form of Tax Increment Revenue Bond)
UNITED STATES OF AMERICA
STATE OF WISCONSIN
COUNTY OF WINNEBAGO
CITY OF OSHKOSH
TAXABLE TAX INCREMENT REYENIUE,BO
(MK -1, LLC PHASE I DEVELOPMENT MtM
Interest Date of t?r�ncpal
Number Rate Or_iginal.,.lssue Am
R -1 6.25% 20_ $375,316
FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin
(the "City "), promises to pay to or registered
assigns, but only in the manna at ithe times, from thi✓ source of revenue and to the
extent hereinafter provided, fhe Principal Amount stated :above together with interest
thereon from , 20 , or the most recent payment date to which interest has
been paid, to the stated due dates of the prig cip installments of this Bond, at a rate per
annum equal to the Interest Ratestated above
This Bond is issued to finance projects''which are a part of the City's blight
elimination an0e -d64 opment utility pursuant ~ to Article XI, Section 3 of the Wisconsin
Constitution a6'd Section 66.0621, Wisconsin Statutes and acts supplementary thereto,
and is payable�'only from the income and revenues herein described, which income and
revenues have =been set aside as a special fund for that purpose and identified as the
"Special Rederrmption Fund." This Bond is issued pursuant to a resolution adopted on
2008 by the City Councl of the City and the Development Agreement dated
200 1 h6tw.een the City and (the
"Development Agreemeff t �'�Tffis Bond does not constitute an indebtedness of the City
within the meaning of any constitutional or statutory limitation or provision. The principal
of and interest on this Bond shall be payable solely from Available Tax Increment (as
defined below) received by the City with respect to its Tax Incremental District No. 20
(the "TID ") which is appropriated by the City Council to the payment of this Bond (the
"Revenues "). Reference is hereby made to said Development Agreement and
resolution for a more complete statement of the revenues from which and conditions
under which this Bond is payable, and the general covenants and provisions pursuant to
which this Bond has been issued.
34
This Bond shall mature and the City's obligation to repay all or any portion of this
Bond shall terminate on November 1, 2032. Installments of principal and interest on
this Bond shall be due and payable on November 1 of each year, commencing
November 1, 20_ through and including the maturity date (each, a "Bond Payment
Date "). The amount of the annual payment of principal and interest due on each Bond
Payment Date shall equal the amount set forth o the schedule attached hereto.
"Available Tax Increment" means an amount equal to the annual gross tax
increment revenues actually received and :retained by the City which is generated in the
immediately preceding calendar year byj�mprovements made after January 1, 2008 to
the Phase I Development Site /Parcel (s deane in the Development Agreement).
Revenues shall be applied first to the payment `of any interest due on the Bond
Payment Date and then to the _ payment of any principal" de on that Bond Payment
Date. Yr
If on an Bond Pamert�Date tare shall be insufficient Revenues to pay the
principal or interest due on this Band, the amount due but not paid shall accumulate and
be payable on the next Bond Payment -Date until the final Bond Payment Date.
If on the firf f, "Bond Payment Date, there- remain amounts outstanding and unpaid
on the Bond, then all interest accrued but unpaid and the remaining balance of principal
of the Bond shall be deemed paid in full, it "being understood that upon the final Bond
Payment Date,�`the obligation of; the City to make any further payments on the Bond
shall terminate.' �[he City shallia no obligation to pay any amount of principal or
interest on this Bondwhich remains unpaid after the final Bond Payment Date and the
,x :a Y_
owner of this Bond shall have no right to receive payment of such amounts.
If for any reason (other then voluntary resolution of the City Council) the TID
terminates prior to the final Bond Payment Date, and there remain amounts outstanding
and„ unpaid on the Bond, then all interest accrued but unpaid and the remaining balance
of principal of the Bond shall be deemed paid in full, it being understood that upon such
termination of the TIO, the obligation of the City to make any further payments on the
Bond shelf also terminate. The City shall have no obligation to pay any amount of
principal or intecrest on the Bond which remains unpaid upon termination of the TID and
the owner of the Bond shall have no right to receive payment of such amounts.
This Bond is subject to prepayment in whole or from time to time in part at any
time, at the option of the City.
THE CITY MAKES NO REPRESENTATION OR COVENANT, EXPRESS OR
IMPLIED, THAT THE AVAILABLE TAX INCREMENT OR REVENUES WILL BE
SUFFICIENT TO PAY, IN WHOLE OR IN PART, THE AMOUNTS WHICH ARE OR
MAY BECOME DUE AND PAYABLE HEREUNDER.
THE CITY'S PAYMENT OBLIGATIONS HEREUNDER ARE SUBJECT TO
FUTURE ANNUAL APPROPRIATION BY THE CITY COUNCIL OF AVAILABLE TAX
INCREMENT OR OTHER AMOUNTS TO MAKE PAYMENTS DUE ON THIS BOND.
2
35
r
THIS BOND IS A SPECIAL, LIMITED REVENUE OBLIGATION AND NOT A
GENERAL OBLIGATION OF THE CITY, AND IS PAYABLE BY THE CITY ONLY
FROM THE SOURCES, TO THE EXTENT, AND SUBJECT TO THE QUALIFICATIONS
STATED OR REFERENCED HEREIN. THIS BOND IS NOT A GENERAL
OBLIGATION OF THE CITY, AND NEITHER THE FULL FAITH AND CREDIT NOR
THE TAXING POWERS OF THE CITY ARE PLEDGED TO THE PAYMENT OF THE
PRINCIPAL OF THIS BOND, AND NO PROPERTY OR OTHER ASSET OF THE CITY,
EXCEPT THE ABOVE - REFERENCED REVENUES, IS OR SHALL BE A SOURCE OF
PAYMENT OF THE CITY'S OBLIGATIONS HEREUNDER.
This Bond is issued by the C'ify "pd °rsuan 4to and in full conformity with the
Constitution and laws of the State of Wisconsin.
This Bond may be transferred
Agreement. In order to transferor`s
surrender the same to the ` City either
transfer of this Bond on fhe registrai
Each permitted transferee or assign
conditions and subject to all provision.
or assigned only as provided in the Development
Fssign the Bond, the transferee or assignee shall
i> exchange for a new fully registered bond or for
ionw'records for the Bond maintained by the City.
ne shall take this Bond subject to the foregoing
� stated or referenced herein.
It is hereb- certified and recited that =all?;�conditions, things and acts required by
law to exist or to be done p'n to and in contr'ection with the issuance of this Bond have
been done, ha e existed and have been performed in due form and time.
,
IN WI NES WHEREOF; he City Council of the City of Oshkosh, Winnebago
County, Wisconsin,`has caused this; Bond to be signed on behalf of said City by its duly
qualified and acting City Manager and City Clerk, and its corporate seal to be impressed
h. neon, alf as of the issue specified above.
CITY OF OSHKOSH
WINNEBAGO COUNTY, WISCONSIN
(SEAL)
By
City Manager
3
2
City Clerk
36
Date of
Registration
This Bond shall be registered in registration records kept by the City Clerk of the City of
Oshkosh, Winnebago County, Wisconsin, such registration to be noted in the
registration blank below and upon said registration records, and this Bond may
thereafter be transferred only upon presentatiop of this Bond together with a written
instrument of transfer approved by the City arj.d, ly executed by the Registered Owner
or his attorney, such transfer to be made on such` and endorsed hereon.
REGISTRATION PROVISIONS
of
Signature of
City Clerk
STATE OF WISC ONSIN
COUNTY OF W&NEBAGO
CITY OF OSHK66H,
PAMELA
BRIG City,"
Clerk for the City of Oshkosh, Winnebago County,
'se in do hereby ftif, the foregoing resolution is a true and correct copy of the
ginal on file in my office, a opfe by the Common Council of the City of Oshkosh, Wisconsin
the meeting held on March 11, 2008. Wisconsin.
Witness my hand and the Corporation ef the City of OshkoaL—WLIS-c
DATED�" � June 1V2008
City Clerk of the City of Oshko.-
Winnebago County, Wisconsin
L
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