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HomeMy WebLinkAboutMK-1 LLC & MK-2 LLC South Shore4, I 11� Development Agreement This Development Agreement is made this o`er day of p , , 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 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 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 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. BumsDevAgmtMKprop 6/17/08 ECENE F JUL 0 3 2008 BD I CITY CLERK'S OFFICE �'. .. a ` (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. BumsDevAgmtMKprop 2 6/17/08 (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. BumsDevAgmtMKprop 6/17/08 (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 UndertakinlIs Prior to Closing of Proiect 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. BumsDevAgmtMKprop 4 6/17/08 (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 BumsDevAgmtMKprop 6/17/08 (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. BumsDevAgmtMKprop 6 6/17/08 (ii) Conveyance will be by payment of $l. S. 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 II 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. BumsDevAgmtMKprop 7 6/17/08 (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. BumsDevAgmtMKprop 6/17/08 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. BumsDevAgmtMKprop 9 6/17/08 (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. BumsDevAgmtMKprop 10 6/17/08 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 BumsDevAgmtMKprop 11 6/17/08 (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. BumsDevAgmtMKprop 12 6/17/08 4 - 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. Si na e. 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. BumsDevAgmtMKprop 13 6/17/08 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. BurnsDevAgmtMKprop 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. 26. 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 BumsDevAgmtMKprop 17 6/17/08 g 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 0 In Witness Whereof, this Agreement is executed as of the date first above written. City of Oshkosh, Wisconsin By: Job Att Par. Approved as to form: T renson, i ttorney STATE OF WISCONSIN ) )ss. WINNEBAGO COUNTY 1 Personally appeared before me this � d y 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. otary Publ' tate o isconsin My Commission expires: / -13 - BumsDevAgmtMKprop 19 6/17/08 Redevelopment Authority of the City of Oshkosh, i By: Thomas Belter, Aai4rn Attest: Jackson inney, Approved as to form: UL&� Q$ �renson — ,Ci orney STATE OF WISCONSIN ) )ss. WINNEBAGO COUNTY ) Personally appeared before me this day of LAS , 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 Wisco sin My Commission expires: 1 F!� 2 to BurmsDevAgmtMKprop 20 6/17/08 � _... >� 1 i ^� ���_!" /. ♦..i �1� i r � .'� ✓ \ _ W "may `r � r - �... �. ' y �"F r MK -1, LLC and MK -2, LLC, Wisconsin limited liability companies By: 9" �' & � � � Brian Burns STATE OF WISCONSIN ) )ss. WINNEBAGO COUNTY ) Personally appeared before me thi j!ayf S, the above named Brian Burns of MK -1, LLC and MK -2, LLC, Wisconsi imited 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. �a : s P U 8 O My Commission I( 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 1/4 of said Section 24; thence N00 °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 °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 llama 1 4751 s 2 REGISTER'S OFFICE WINNEBAGO COUNTY, YI RECORDED ON Val. I Pj.l,ava. 06/1912008 02.MPN JULIE PAGEL REGISTER OF DEEDS RECORDING FEE 15.00 TRANSFER AES 3 c�tA. C. 0. o l 03 N I g VA *_ uj I I ¢z `t I 1 wl I Lu I s ��• � �� u8utoo a 3 ODSulC 6 I 1 I rA 0 •� lY r w I 1 j WnV € - o } o �mh�ilSUCI N I lo NO f WI I I ° s s 11M I I 1 I m - - - -- L S3 W - w�ti�m w W-- o - -- 1 U. I �� Ho efiH U. W ,! I Mz a. ��� I ' Q °� 1 >- > �� I o N z I W , CD iE_§ I yI l W O °Y I '00 ( 1 I � I : I Co ll v 4 I I 0 T j LL Q IO }m Z I a.l as U O I UO Ky °1 m IOW +I � I a� w p� Um �_ go t}fr o7d p z Z st Coo f c l o m�v� l 03 N I ,O DZOZ amla I I ¢z `t I 1 wl I Lu I s � I I 1 I rA 0 •� lY r w I 1 j o� € - o } I N I Z NO a WI I ° 8 s a w { { { { { {N111 m I wm 0 go V a� w p� Um �_ go t}fr o7d p z Z st Coo f c l o m�v� 1 AARl :.L�32ilS`d>1S`d�B�N� l 03 N I ,O DZOZ amla w t; I I I ¢z `t 1 AARl :.L�32ilS`d>1S`d�B�N� l 1 `t I I I rA 0 •� lY r 1 1 00 OOo I w n �. t 01 V %V{ 0 0 I o v� N 6 W i j . • T ;�� ,•' O � - o LL * ° 8 s a w { { { { { {N111 0 2 wm 0 go V I � 1 23 I � � ,e %vA a } p I tu �d I 7 O 0 go 2 p N Qz 0 go V ui $1 i ,F, 1 ( ( 1 I • x O 0j 23 CERTIFIED SURVEY MAP ALL OF BLOCK 10 IN THE PLAT OF THE ORIGINAL THiRD WARD (LOTS 1 THROUGH 22) PER LEACITS MAP STS I AECO M. OF 1894, EXCEPT THAT PART OF LOT 22 DEDICATED FOR ROAD RIGHT -OF -WAY PER CITY OF OSHKOSH RESOLUTION NUMBER 07358 (DECEMBER 11, 2007), o sh THIRD WARD, CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN. whk North M M .rn sheet VA 11 sh SURVEYORS CERTIFICATE ssDro www.s.- Mom.cam e+rw© e� span . 1. Craig D. Hansen, registered land 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 Ore Redevelopment Authority or the City of Oshkosh. owner of said land, I have surveyed, divided, dedicated, and mapped the following land being all of Block 10 In the Plat of the Original Third Ward (Lola 1 through 22) per Leach's Map of 1894, except that pert of Lot 22 dedicated for road dght�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 -R1SE, thence N8951 26'F, 589.95 feet along the South One of the Southwest 114 of said Section 24; thence NOO*OVI2'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 180.71 feat along the West One of said Block 10 to a found chiseled otiose marking the Northwest comer of said Bock 10; thence S89'inrE, 531.28 feet along the North One of said Block 10 to a found chiseled cross marking the Northeast comer of said Block IV thence S00 SE, 147.31 feet along Via East Ina 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 07-358 (December 11, 2007), thence S45 48.39 feet along said road dght-of -way to a point an the South line of said Bbdc 10*.. thence NS9 498.12 feet along the South One of said Block 10 to the Point of Beginning. Said property containing 98,334 square feet or 2.189 acres, more or bass, 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. That the survey of said land was done under my direct supervision and the map hereon Is a tore and accurate representation of the exterior boundaries thereof. CRAIG sEN 5=2640 MUNICIPAL OWNER'S CERTIFICATE REGISTERED LAND SURVEYOR JUNE 16, 20b8 THIS IS AN ORIGINAL SURVEY DOCUMENT IF THE PROFESSIONAL SEAL IS IMPRINTED IN RED AND SIGNED IN SLUE \ \I \llll!!J CRAiG D. ' *: HANSEN •- S -2540 APPLETON W1 4 •' �. The Redevelopment Authority of the City of Oshkosh, a separate body public organized and existing under and by virtue of the Lem of the State of Wisconsin, as owner, does hereby certify that said Authority caused the hod described to be surveyed, divided, and mapped as represented on this map, In accordance with the provisions of Chapter 236 of the Wisconsin Stabdes and the Land Subdivision Ordinance of the City of Oshkosh. In Wibhess whereof, the sold Redevelopment Authority, has caused these presents to be signed by Jadicsoft R. Kirmy countersigned by Tborna8 Better ExecutLve Director this 191JI day of I Jima 20 OB Redevelopment Authority of the I iy of Oshkosh: a 214 Director .. Chairman STATE OF WISCONSIN) and :SS WINNEBAGO COUNTY) da Personally came before me this 1 day of 1II>e • ;AOf the aforementioned representatives of the Redevelopment Authority of the City of Oshkosh, known to me to be the persons who executed the forgoing instrument and admowledged the same. IYU� �• �IL� rS^ Notary Public, Winnebago Co , State of Wisconsin My commission explres un I g Q CITY OF OSHKOSH PLANNING COMMISSION CERTIFICATE OF APPROVAL This Certified Survey Map of part of Block 10 In the Plat of the Original Third Ward (Lots 1 through 22) per Leach's Map of 1894, Third Ward, City of Oshkosh, Winnebago County, Wisconsin is hereby approved, C Commission . Data R entalive 24 Exhibit B (South Shore Redevelopment Area) 1 d Jj Q ] �I 01 C d E N Q N O � v N N O r — t4 6 N C i 0 (ui LU LU Q I Q Q = L J O r Q rr � i 1 t� ��, n r a �, I � �iL� w ky % y > i AOm ` 1 r c ! `sS3N IP WIN I d $ V + a -'4i c 0 Co ry O� TI r 4 d�''4�` �. ���,[S�' N0�3�[O ro � ks.roea, •�S ] � f — ".t t.t ai C O / ^ ^� i•+•I '7 ✓ a 41 a p U U p t p � 3 C a e7 N WW O CLO O A Q x SA O O t L q N U d'cRas =' O u ._.. H U U e;3w��o�y O m 1 d Jj Q ] �I 01 C d E N Q N O � v N N O r — t4 6 N C i 0 (ui LU LU Q I Q Q = L J O r Q rr � i 1 t� ��, n r a �, I � �iL� w ky % y > i AOm ` 1 r c ! `sS3N IP WIN I d $ V + a -'4i c 0 Co ry O� TI r 4 d�''4�` �. ���,[S�' N0�3�[O ro � ks.roea, •�S ] � f — Exhibit C (Phase I and Phase II Areas) 90L LOL UL LLL mt Ta N tU W W O T Q W N F- 00 0 006 OIL W IA W L � :? 0) co co a co 3 S MAIN ST LO c� UL LLL mt r 0 0 c� � 3 H 1S ` >ISV�3B LO a 0 LO CD 0 (0 o 0 � o 0 (0 W Z W U. Y 0 0 M %r N tU to W N _ m Q co IA r 0 0 c� � 3 H 1S ` >ISV�3B LO a 0 LO CD 0 (0 o 0 � o 0 (0 W Z W U. Y 0 0 506 N tU to W N _ m Q co IA c N cc � :? 0) co co co 3 LO c� V c ` 0. �F E on CL O m _ 6 N �Q cu .a ° - 0 3N co p = 1_ o N L 26 +'� -+CZ� g 7 i i m nmu m 506 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 "). M 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. 3 .� 9 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) TO 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 TID 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. 11 30 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 5 31 ATTACHMENT (Schedule of Payments on Bond) 32 1 W v h i.� 07 a Q Q Q Q v v . 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U , O .O N c 0/ p d ' f0 � 7 d 01 2 N @ W tO J C d ra Q c _ m U m E c LL. 6 v m C V a` •� w S � i.� O 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 REUPRQ.1 NU,BO (MK -1, LLC PHASE I DEVELOPMENT Interest Date of Principal Number Rate Original,,.lssue Arrt`oiant R -1 6.25% 20_ $375,316 FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin (the "City "), promises to pay to or registered assigns, but only in the manner; a tie times, from th"ource of revenue and to the extent hereinafter provided, , the Prino�pal Amount stated��above together with interest thereon from , 20�, or the most�Jrecent payment date to which interest has been paid, to the stated due"dates of the princrp,al installments of this Bond, at a rate per annum equal to the Interest Rate above'. This Bond is ; issued to finance projects' which are a part of the City's blight elimination and., = redevelop men t utility pursuant``t0 Article XI, Section 3 of the Wisconsin Constitution e'd Section 66.0621, Wisconsin Statutes and acts supplementary thereto, and is payabl$�only from the income and revenues herein described, which income and revenues havebeen set aside as, a special fund for that purpose and identified as the "Special �- Redemption Fund." Thi! Bond is issued pursuant to a resolution adopted on 2008 by he- ity Council of the City and the Development Agreement dated 200 Ietvueen the City and (the "Development Agreement` TFris 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 on the schedule attached hereto. "Available Tax Increment" means an' aftunt 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 Fmprovements made after January 1, 2008 to the Phase I Development Site /Parcel (as �deffnd Sri the Development Agreement). r . 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 due on that Bond Payment Date.� If on any Bond Payrrient,Date tb re shall be insufficient Revenues to pay the principal or interest due on this B "ond irbe 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 final °ond Payme e th nt Date-, remain amounts outstanding and unpaid on the Bond, then all interest accrued but unpaid and the remaining balance of principal vj of the Bond s4II be deemed raid in full, it`being understood that upon the final Bond Payment Date, the obligation ofhe City to make any further payments on the Bond shall terminate. -The City shall have no obligation to pay any amount of principal or interest on this Bond which remains unpaid after the final Bond Payment Date and the owner Faf this Bond snap have no r 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 Ad_ 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 TID, the obligation of the City to make any further payments on the Bond shad 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 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 FUTURE ANNUAL APPROPRIATION BY THE INCREMENT OR OTHER AMOUNTS TO MAKE HEREUNDER ARE SUBJECT TO CITY COUNCIL OF AVAILABLE TAX PAYMENTS DUE ON THIS BOND. 2 35 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 a nt to and in full conformity with the Constitution and laws of the State of Wisconsin. 4 f.. This Bond may be transfe Agreement. In order to transfer surrender the same to the C,' e'. transfer of this Bond on the regi Each permitted transferee or al conditions and subject to all provi It is here law to exist or to been done, have IN WITN WHEREOF is caused th' ity Manager ie City Council of the City of Oshkosh, Winnebago Bond to be signed on behalf of said City by its duly id City Clerk, and its corporate seal to be impressed issue specified above. CITY OF OSHKOSH WINNEBAGO COUNTY, WISCONSIN A 3 rred or assigned only as" provided in the Development or assign the Bond, the transferee or assignee shall the r R exchange for a new fully registered bond or for stratiol . records for the Bond maintained by the City. signee shall take this Bond subject to the foregoing Si ated or referenced herein. V certified. and recited that;; all 'conditions, things and acts required by be done p,r�or to and in coritibction with the issuance of this Bond have existed and ha a been performed in due form and time. City Manager City Clerk 36 4 rj f REGISTRATION PROVISIONS 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 and my executed by the Registered Owner or his attorney, such transfer to be made on such records and endorsed hereon. Date of flame of 4 - Signature of Registration Regi Own e r , , City Clerk STATE OF WISQONSIN COUNTY OF \/V EBAGO CITY OF OSHKOSH PAMELA R UP City'.,'�,",= Clerk for the City of Oshkosh, Winnebago County, scorisn, do hereby 66ft.,if foregoing resolution is a true and correct copy of the ginal on file in my office, ad the Common Council of the City of Oshkosh, Wisconsin ' te�': the meeting held on March 11, 2008. Witness my hand and the Corp 0 Qratrd the City of Oshkoalt— + IDAT5 4;, - June 17 2008 City Clerk of the City of Oshkos Winnebago County, Wisconsin 11 37 -< f o- O