HomeMy WebLinkAbout20. 13-501
NOVEMBER 12, 2013 13-501 RESOLUTION
(CARRIED___6-0____LOST_______LAID OVER_______WITHDRAWN_______)
PURPOSE: APPROVE DEVELOPER AGREEMENT & LEASE AGREEMENT
WITH MARION ROAD APARTMENTS LLC, ASSIGNMENT OF
LEASE TO WHEDA; APPROVE LAND DISPOSITION -
PROPOSED RIVERS II DEVELOPMENT ON SOUTH SIDE OF
MARION ROAD
INITIATED BY: COMMUNITY DEVELOPMENT
WHEREAS, Marion Road Apartments LLC submitted a proposal for construction
of a planned multi-family development on proposed Lot 2 (per the attached map) on the
south side of Marion Road within the Marion/Pearl Redevelopment Area; and
WHEREAS, the City of Oshkosh (City) and Redevelopment Authority (RDA) will
remain the owner of the property during environmental remediation activities and
construction of the planned multi-family development requiring the City and RDA to
enter into a lease agreements and assignments for the purpose of facilitating
construction and financing of the project during the period prior to completion of the
environmental remediation and transfer of the property to Marion Road Apartments
LLC; and
WHEREAS, the leases and assignments are consistent with the terms of the
Developer Agreement.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper City officials are hereby authorized and directed to enter into a
Developer Agreement with Marion Road Apartments LLC for construction of a planned
multi-family development on proposed Lot 2 (per the attached map) on the south side of
Marion Road, in substantially the same terms as attached hereto, any changes in the
execution copy being deemed approved by their respective signatures, and to carry out
all actions necessary to implement the City's obligations under the Developer
Agreement.
BE IT FURTHER RESOLVED that the proper City officials are hereby authorized
and directed to enter into appropriate leases and assignments to facilitate construction
and financing of the planned multi-family development, in substantially the same terms
as attached hereto, any changes in the execution copy being deemed approved by their
respective signatures, and to carry out all actions necessary to implement the City's
obligations under the Developer Agreement.
NOVEMBER 12, 2013 13-501 RESOLUTION
CONTD
BE IT FURTHER RESOLVED by the Common Council of the City of Oshkosh
that the proper City officials are hereby authorized and directed to execute any and all
documents necessary to consummate the disposition of proposed Lot 2 (per the
attached map) on the south side of Marion Road to Marion Road Apartments LLC or
affiliated entities upon construction of the planned multi-family development, completion
of environmental remediation and receipt by the City of a Certificate of Completion from
the Wisconsin Department of Natural Resources.
City of Oshkosh 0
Community Development Department Of HKOJH
215 Church Avenue, Oshkosh, WI 54901 ON THE WATER
TO: Honorable Mayor and Members of the Common Council
FROM: Allen Davis, Community Development Director
DATE: November 7, 2013
SUBJECT: Approve Development Agreement with Marion Road Apartments LLC,
Assignment of Lease to WHEDA and Land Disposition to Marion Road
Apartments, LLC
BACKGROUND
The City Council is being asked to approve the three items related to the
redevelopment of a parcel of land along the Fox River, part of the Marion Road
Redevelopment Area. The parcel is also located in TID #21. In the past, the RDA/City
acquired the property, demolished the buildings and remediated part of the site. The
City has rebuilt the public- street and utilities serving the parcel. The RDA/City also
installed the riverwalk along the property. The parcel of land still contains contaminated
soil and poor soils for construction.
The Site Plan has been submitted and the City Plan Commission has recommended
approval of the Planned Development.
ANALYSIS
The key elements of the Development Agreement are:
1. The City will use $800,000 in 2014 CIP funding to remediate the site as part of
the construction.
2. The City will use an additional $300,000 state grant to pay for more of the
remediation costs.
3. The City will obtain the Certificate of Completion from the WisDNR upon
completion of the remediation.
4. The RDA and the City will convey the property for $1.
5. The Developer will build an 80 -unit apartment building with an assessed value of
at least $5,200,000.
6. The Developer will obtain a $7,000,000 loan from WHEDA.
7. The Developer will spend $940,000 in private funds on the construction.
8. For a period equal to the time required for the property to pay $800,000 in
remediation costs through property taxes:
a. The Developer shall guarantee the $5,200,000 assessed value and make
additional payments to the City if the assessment is less.
b. The Developer will not challenge the City's assessment.
c. The City will provide a "pay -go" developer assistance grant for assessed
value greater than $5,200,000.
The projected time period required for the minimum assessment value guarantee
and corollary "pay -go" is 6 or 7 years. When the City's $800,000 remediation
costs have been repaid, the minimum assessed value guarantee expires and the
"pay -go" developer assistance grant also expires. The property taxes paid
thereafter would then go to help retire the debt of TID #21.
The Lease Agreement is required for construction to begin on the property prior, to
remediation and WisDNR issuing the Certificate of Completion.
The Lease Assignment to WHEDA is required due to the WHEDA financing of the
project. The Lease will be terminated upon WisDNR issuing the Certificate of
Completion. The Land Disposition would then convey the parcel.
The Developer has also requested the City provide an option for the parcel of land
remaining to the west. The Developer has indicated they would then attempt to obtain
financing and design for another multi- family residential property.
FISCAL IMPACT
TID #21 will be the funding mechanism for the City's contribution. The additional
property taxes paid by Rivers 11 will be first used to pay for the remediation costs for the
site. After 6 or 7 years, the property taxes will be used to help repay the debt for the
other project debt remaining in TID #21. By increasing the assessed value in TID #21,
Marion Road Apartments LLC is not only paying for the remediation, but part of the
other TID #21 costs that must be repaid. The Fiscal Impact of the project is to reduce
the City's outstanding debt in TID #21.
RECOMMENDATION
The City Council approves the Land Disposition and Development Agreement to Marion
Road Apartments LLC, and Assign the Lease to WHEDA for Rivers II as presented.
Approved,
City Manager
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement ") is made as of the day of
November, 2013 (the "Effective Date ") by and between the CITY OF OSHKOSH,
WISCONSIN, a Wisconsin municipal corporation and the REDEVELOPMENT AUTHORITY
OF THE CITY OF OSHKOSH, WISCONSIN (collectively, the "City "), and MARION ROAD
APARTMENTS, LLC, a Wisconsin limited liability company (the "Developer ").
RECITALS
A. The Developer has leased certain property located in the City of Oshkosh,
Wisconsin, which property is more particularly described on Exhibit A attached hereto (the
"PropertX "), from the City, which in turn leases the Property from the City of Oshkosh
Redevelopment Authority (the "RDA ") pursuant to a lease dated as of June 1, 2006 (the "Prime
Lease ").
B. The Developer plans to construct a four story, 80 unit apartment building with
underground and surface parking as approved by the Common Council on November , 2013
through Resolution 13- on the Property (the "Projeci ") and to acquire fee simple title to the
Property following the completion of certain environmental remediation.
C. Pursuant to Wis. Stats. §66.1105 (the "Tax Increment Law "), the City has (i)
created Tax Increment District No. 21 (Fox River Corridor Project) (as amended from time to
time, the "TIF District "), and (ii) approved a project plan for the redevelopment of the TIF
District (as amended from time to time the "TIF District Project Plan").
D. The Property is located within the TIF District.
E. The Developer desires to acquire and operate the Property in accordance with the
provisions of this Agreement and the TIF District Project Plan.
F. The Developer's ability to develop the Project is contingent upon the City
providing financial and other assistance to Developer on the terms set forth in this Agreement.
G. The City finds it to be in the public interest to utilize tax incremental financing to
assist the Developer to undertake the Project, consistent with the terms and conditions of this
Agreement.
H. Funds used to provide the Developer with the tax incremental financing for the
Project Costs (the "TIF Funds ") shall be raised solely from tax income generated from the Project
in the TIF District.
I. The City finds that construction of the Project, and fulfillment of the terms and
conditions of this Development Agreement are in the vital and best interest of the City and its
residents and fulfill a public purpose in accordance with state law.
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NOW THEREFORE, in consideration of the foregoing recitals that are incorporated
hereto and made a part of this Agreement, the promises, covenants and agreements contained in
this Agreement and other good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the Developer and the City promise, covenant and agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means any entity that, directly or indirectly, controls, is controlled by
or is under common control with a parry to this Agreement or such party's successors
and/or assigns. For purposes of this definition, "control" means possessing the power to
direct or cause the direction of the management and policies of the entity by the
ownership of a majority of the voting securities of the entity.
"C means the City of Oshkosh, Wisconsin, a Wisconsin municipal
corporation, its successors and assigns.
"City Contribution" means payments provided by the City to the Developer from
future Tax increments as set forth in Section 2(d), below, not to exceed Eight Hundred
Thousand Dollars ($500,000.00).
"Completion Date" means December 31, 2014.
"Default" means the occurrence of one or more of the events described in Section
17, below.
"E ui Contribution" means an investment by Developer of not less than Nine
Hundred Forty Thousand and No /100 Dollars ($940,000.00) in the Project.
"Expiration Date" means the date of termination of the TIF District under Wis.
Stat. §66.1105(7).
"Guaranty" means the Developer's minimum assessment guaranty, as more
specifically described in Section 11, below.
"Loan" means one or more loans to fund Project Costs in the maximum amount of
,Seven Million and No /100 Dollars ($7,000,000.00).
"Minimum Assessed Value" means Five Million Two Hundred Thousand and
No /100 Dollars ($5,200,000.00).
"Project Costs" means the total costs of acquiring and constructing the Project,
including all capital expenditures (or expenditures that could be treated as capital
expenditures) and preliminary expenditures (such as architectural, engineering,
surveying, soil testing and similar costs that are incurred in connection with the
construction of the Project) and all other direct and indirect costs of development of the
Project in accordance with the Project Plans.
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"Project Plans" means final detailed plans and specifications for the Project, and
all other improvements to be located on the Property.
"Pro e�rty" means the parcel of land upon which the Project is located, as IegaIly
described on Exhibit A.
"Term" means the period of time from the Effective Date of this Agreement to the
Expiration Date.
"TIF District" means Oshkosh Tax Incremental District No. 21 (Fox River
Corridor Project).
"Tax Increment" shall have the meaning given under Wis. Stat. §66.1105(2)(i)
but ,shall be limited to the Tax Increment attributable to the Property and the
improvements on the Property.
2. City Obligation s.
(a) Initial Lease. The City shall lease the Property to Developer pursuant to a
Lease in the form attached hereto as Exhibit B (the "City Lease "). The term of the City
Lease shall begin on a mutually agreed upon date set forth in the City Lease, and end on
the date upon which the City conveys the Property to Developer pursuant to subsection
(c), below.
(b) Environmental Remediation Assistance. Groundwater and soil
contamination is present on the Property, as identified in the Wisconsin Department of
Natural Resources Case Nos. 02- 71- 282521 and 06- 71547885 (the "Contamination").
Developer shall be responsible for the remediation of the Contamination to the extent
necessary to obtain a Certificate of Completion from the Wisconsin Department of
Natural Resources under its Voluntary Party Liability Exemption Program (a "Certificate
of Completion "). The City will provide Developer with a grant in the amount of Eight
Hundred Thousand and No/100 ($800,000.00) (the "City Grant ") to be utilized by
Developer solely for costs associated with remediating the Contamination. The City shall
also administer a grant in the amount of Three Hundred Thousand and No /100 Dollars
($300,000.00) being provided to Developer by the Wisconsin Economic Development
Corporation (the "WEDC Grant "), which is also to be utilized solely for costs associated
with remediating the Contamination. The City Grant and WEDC Grant shall be
administered in accordance with the provisions set forth in Section 6, below.
(c) Conveyance of Property to Developer. Following the issuance of a
Certificate of Completion relating to the Contamination, the City will convey fee simple
title to the Property to Developer, subject to all easements, covenants and restrictions of
record, municipal ordinances, taxes (if any) for the year in which the conveyance to
Developer occurs, and any restrictions imposed on the Property as a condition of the
Certificate of Completion (the "Permitted Encumbrances ").
(d) City Contribution. Subject to all the terms and conditions of this
Agreement and applicable law, the City will provide payments to the Developer solely
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from future Tax Increments to assist with Project Costs; provided, that the aggregate
amount of the City's payments to the Developer hereunder shall not exceed Eight
Hundred Thousand Dollars ($800,000.00). The City Contribution shall be payable
beginning in 2016. The City Contribution for 2016 will be calculated by,subtracting $5.2
million from the assessed value of the Property as of January 1, 2015. The result, if
positive, shall be multiplied by the mill rate for all taxing jurisdictions established for
2015 for the TIF District and the product shall be due and payable to the Developer on or .
before September 30, 2016. The City Contribution for each subsequent year shall be
calculated in the same manner. The City's obligation to make the City Contribution shall
end and expire as of the earlier of (i) the receipt by Developer of the maximum City
Contribution of Eight Hundred Thousand Dollars ($800,000.00), or (ii) the Expiration
Date.
Payments under this Agreement shall be solely from Tax Increment attributable to
the Property actually received by the City. In no event shall the City's payment to the
Developer exceed the total Tax Increment generated by the Property. The City
Contribution shall be a special and limited obligation of the City and not a general
obligation. The City covenants and agrees, however, not to utilize any Tax Increment
received with respect to the Property during any year for any purpose other than payment
of the City Contribution unless and until the City has paid the City Contribution in full
for such year.
The Developer acknowledges that, as a result of the special and limited nature of
the City's obligation to pay the City Contribution, the Developer's recovery of the City
Contribution depends on various factors including, but not limited to, future mill rates,
changes in the assessed value of the Property, failure of the Property to generate Tax
Increments at the rate expected by the Developer, changes in the Tax Increment Law, and
other failures beyond the City's and /or the Developer's control. Additionally, the City
shall have no obligation to make the City Contribution unless and until (i) the Developer
has made all payments owed to the City by Developer for real estate taxes, personal
property taxes, special assessments, and special charges, and (ii) Developer's Affiliates
have made all payments owed to the City for real estate taxes, personal property taxes,
special assessments and special charges relating to properties owned by Developer's
Affiliates located within the TIF District. Developer shall provide the City with a list of
all properties within the TIF District which are owned by Developer's Affiliates, which
list shall be updated by Developer not less than annually.
3. Conditions Precedent to City's Obligations. In addition to all other conditions
and requirements set forth in this Agreement, the obligations of the City hereunder (including,
without Iimitation, the obligation of the City to pay the City Contribution) are conditioned upon
the satisfaction of each and every of the following conditions:
(a) On or before the date of this Agreement, the Developer shall provide the
City an opinion of its counsel reasonably acceptable to the City stating, among other
things, that the persons executing this Agreement on behalf of the Developer are
authorized to do so, that the Developer has duly authorized entry into this Agreement,
and other matters as are reasonably requested by the City.
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(b) On or before the date of this Agreement, the Developer shall have
provided the City with (i) certified copies of its Articles of Organization and Operating
Agreement, and (ii) a current Certificate of Status issued by the Wisconsin Department of
Financial Institutions.
(c) On the date of each payment made to Developer pursuant to Section 2(d),
above, no uncured default, or event which with the giving of notice or lapse of time or
both would be a default, shall exist under this Agreement.
(d) The Developer shall have made the Equity Contribution to the Project and
provided proof of such Contribution to the City in the same manner as required by the
provider of the Loan.
(e) The City Common Council shall have approved a Capital Improvement
Program that includes full funding for the City Grant identified in this Agreement.
Unless all conditions contained in this Section 3 are satisfied within the time
periods for satisfaction of such conditions as set forth above or such conditions are waived in
writing by the City within the time periods for satisfaction of such conditions as set forth above,
the City, at its option, exercised in its sole discretion, may terminate this Agreement, in which
event none of parties to this Agreement shall have any further liability or other obligation to the
other parties,
4. Representations, Warranties of _Developer. The Developer represents and
warrants to the City as follows:
(a) The Developer is a limited liability company duly organized and validly
existing and has the power and all necessary licenses, permits, and franchises to own its
assets and properties and to carry on its business.
(b) The Developer is duly licensed or qualified to do business 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.
(c) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary limited liability company action of the Developer and
constitute the valid and binding obligations of the 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.
(d) The execution, delivery, and performance of the Developer's obligations
pursuant to this Agreement will not violate or conflict with the Developer's Articles of
Organization or Operating Agreement or any indenture, instrument or agreement by
which the Developer is bound, nor will the execution, delivery or performance of the
Developer's obligations pursuant to this Agreement violate or conflict with any law
applicable to the Developer or to the Project.
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(e) - There is no litigation or proceeding pending or affecting the Developer or
the Project, or, to the best of the Developer's knowledge, threatening the Developer or
the Project, that would adversely affect the Project or the Developer or the enforceability
of this Agreement, the ability of the Developer to complete the Project or the ability of
the Developer to perform its obligations under this Agreement.
(f) To the best of the Developer's knowledge, 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 the Developer is not in default (beyond any applicable notice and cure
period) of any of its obligations under any other agreement or instrument to which the
Developer is party or obligor.
.5. Covenants of Developer. During the Term of this Agreement, the Developer
covenants to the City as follows:
(a) The Developer shall pay for all work performed and materials furnished
for the Project as and when due.
(b) On or before the Completion Date, the Project shall be completed (subject
to matters of force majeure), and in all other respects be ready for occupancy and use by
the Developer.
(c) The Developer shall conform and comply with, and will cause the Project
to be in conformance and compliance with, all applicable federal, state, local and other
laws, rules, regulations and ordinances, including without limitation, all zoning and land
division laws, rules, regulations, and ordinances, all building codes and ordinances of the
City, and all environmental laws, rules, regulations, and ordinances.
(d) The Developer shall cause the Project to be constructed in a good and
workmanlike manner and substantially in accordance with the Project Plans and will
promptly correct any defects, structural or otherwise, in any construction or deviations
from the Project Plans. Construction of the Project shall be completed free of all liens
and encumbrances except for those liens and encumbrances permitted by this Agreement.
(e) The Developer shall pay or cause to be paid prior to delinquency all
federal, state and local taxes in connection with the Project. The Developer shall pay
when due all operating expenses in connection with the Project.
(f) The Developer shall comply with the requirement to provide notification
of position openings under Wis. Stat. § 66.1105(6c), and, to the extent notified by the
City prior to the date of this Agreement, with any other applicable material restriction
affecting the TZF District and with all laws, rules, regulations and ordinances generally
applicable to tax increment districts that are applicable to the Project.
(g) The Developer shall have in effect at all times, all permits, approvals and
licenses that may be required by any governmental authority or nongovernmental entity
in connection with the development, construction, management and operation of the
Project.
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(h) Except for a mortgage, any related assignment(s) of leases and rents
and/or other collateral documentation in favor of Lender securing the Loan, the
Developer will not mortgage or otherwise place a lien or encumbrance on the Property
without first obtaining the City's consent.
(i) The Developer, at its cost and expense, shall operate, maintain, repair and
replace (including without limitation, repairs and replacements of a capital nature) all
elements of the Project. The Developer's maintenance and repair obligations shall
include both day to day maintenance and repair and extraordinary maintenance and repair
and shall include maintenance, repair and replacement of all elements or systems of the
Project as are necessary in order to maintain the Project. The Developer will not defer
any required maintenance, repair or replacement (including, without limitation, repairs
and replacements of a capital nature) of any element of the Project and shall establish
adequate reserves therefore.
0) The Developer will not, without the City's consent, initiate any change in
the zoning classification of all or any portion of the Property.
(k) The Developer shall comply with all requirements of the City Grant and
the WEDC Grant.
(1) The Developer shall be responsible for all costs of obtaining the
Certificate of Completion with respect to the Contamination in excess of the City Grant
and WEDC Grant.
6. Grant Administration.
(a) City Grant. The City shall deposit the City Grant into a mutually
approved escrow account on or before December 31, 2013. The City Grant shall be
utilized only for costs associated with remediating the Contamination. All expenditures
and requests to utilize the City Grant funds must be approved in writing by the City prior
to payment or release from the escrow account pursuant to the terms of a separate
disbursing agreement to be entered into by and among the Developer, the City and the
escrow agent (the "Disbursing Agreement "). The City will respond to any request for
approval of a payment within five (S) business days. All such approvals shall be at the
City's discretion. Use of the City Grant shall be for two purposes: (i) the amount of
$120,000 will be paid to AECOM to monitor and oversee the remediation efforts on the
City's behalf, and to advise the City on all issues related to the remediation efforts; and
(ii) the remaining amount will be spent on approved actual remediation efforts The City
and/or the RDA will enter into an agreement with AECOM, and will submit requests for
payment for AECOM services to the escrow agent for payment up to $120,000. Amounts
owed AECOM for this project in excess of $120,000 shall be reimbursed by the
Developer to the City. The Developer shall be responsible for retaining all necessary
services and material necessary for remediation efforts, and shall be responsible for all
costs and amounts owed for remediation efforts in excess of the amount of the City
Grant.
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(b) WEDC Grant. The City is responsible for administering the WEDC
Grant. The Developer agrees to comply with all WEDC requirements for the WEDC
Grant, and will hold the City harmless and indemnify the City for any violations of the
WEDC Grant's terms and conditions. This WEDC Grant is a reimbursable grant, and is
intended to pay for trucking and landfill tipping fees related to the remediation of the
Contamination. WEDC reimbursement may only be obtained after Developer has paid
for the costs for trucking and landfill tipping fees. Developer shall provide City with
documentation sufficient to allow reimbursement by WEDC. Regarding tipping fees
specifically, Developer is benefitting from the utilization of City and RDA tipping rates.
The City and its RDA will be billed for the Project's tipping fees, which will then be
passed along to the Developer for payment to the City. Payment shall be made upon
receipt. The City shall then pay the tipping fees and submit a request to WEDC for
reimbursement. The City will forward to Developer WEDC reimbursement funds upon
their receipt, subject to normal administrative processing. The City shall not authorize
any payments of City Grant funds pursuant to paragraph 6(a), above (other than payments
to AECOM), until Developer has paid in full all outstanding invoices for tipping and
related fees.
7. Damage, Destruction. In the event of fire, damage, or any other casualty to any
part of the Project, the Developer agrees, at its cost and expense, to rebuild, repair and replace
the Project in the condition it was in immediately prior to the casualty. The fair market value of
the Project following reconstruction and/or repair by the Developer must be greater than or equal
to the fair market value of the Project immediately prior to the casualty. The Developer shall not
be relieved of its obligations to make Guaranty Payments as such payments become due and
payable under Section 11, below, as a result of fire, condemnation or other casualty or during the
period of repair or rebuilding and replacement of the Project.
If the Project is required to be rebuilt or repaired or replaced, then the Project shall be
rebuilt, repaired or replaced in accordance with plans and specifications prepared by the
Developer and approved by the City. The Developer agrees to apply any necessary portion of
the insurance proceeds to rebuild, repair and replace the Project. The proceeds of insurance shall
be disbursed for the replacement, rebuilding or repair of the Project pursuant to the terms and
conditions of a disbursing agreement among the City, the Developer and the Title Company,
similar in form and content to the Disbursing Agreement entered into pursuant to Section 6,
above. Any amount required in excess of insurance proceeds for rebuilding, repair and/or
replacement of the Project shall be paid by the Developer.
If the Project is not rebuilt, repaired and /or replaced following fire, damage or other
casualty, that shall not operate to release the Developer from its liabilities and obligations under
this Agreement, including, but not limited to, its obligations to make Guaranty Payments
pursuant to Section. 11, below.
8. Costs. The Developer shall each year during the Term of this Agreement pay all
reasonable and itemized fees, costs and expenses actually incurred by the City, including
administrative costs and attorneys' and consultants' fees, in connection with any modification to
the TIF District Project Plan required as a result of the Project, the negotiation, preparation and
administration of this Agreement and all documents and agreements executed in connection
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therewith; provided, however, that for costs incurred after the first year, the annual amount of
such payment shall not exceed Five Thousand and No /100 Dollars ($5,000.00), which maximum
amount will increase by one and one -half percent (1.5 %) each year during the Term. Developer
shall also pay all reasonable and itemized fees, costs and expenses actually incurred by the City,
including attorneys' and consultants' fees, in connection with the enforcement of its rights
against the Developer under the TIF District Project Plan or this Agreement, including without
limitation, the enforcement of such rights in any bankruptcy, reorganization or insolvency
proceeding involving the Developer. Developer will be billed for such costs and payment is due
within 30 days of the date of invoice. Developer's obligation to pay these costs is secured by the
City's right of special assessment pursuant to Section 11(d); below,
9. City's Right to Cure Default. In case of a failure by the 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 effecting the Project, the City shall have the right, but shall not be
obligated, to effect such insurance or pay such fees, assessments, charges or taxes or take such
action as is necessary to remedy the failure of the Corporation to comply with the documents,
contracts or agreements effecting the Project, and, in that event, the cost thereof shall be payable
by the Developer to the City.
10, Real Estate Taxes and Assessments. The Developer shall pay timely to the City
generally applicable property taxes assessed and levied by the City on the Property under
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 property taxes. In
addition, the Developer agrees to pay timely to the City all special assessments that may be
assessed or levied in connection with the Property under the applicable special assessment laws,
rules, regulations, ordinances and rates in effect at the time said special assessments are assessed
or levied.
11. Minimum Assessment Guaranty.
(a) The Developer hereby guarantees that commencing in 2015 (whether or
not the Property has been conveyed to Developer pursuant to Section 2(b), above) and for
a period ending upon the earlier of (i) September 30 of the year in which the City
Contribution of Eight Hundred Thousand Dollars ($800,000.00) is paid in full, or (ii) the
Termination Date, the assessed value of the Project shall be equal to or greater than the
Minimum Assessed Value. If, for 2015 or any subsequent year in which this minimum
assessment guaranty is in effect, the assessed value of the Project is less than the
Minimum Assessed Value, Developer will make a payment to the City (a "Guaranty
Payment "), calculated by subtracting the assessed value of the Property from $5.2
million. That number shall be multiplied by the mill rate for all taxing jurisdictions
established for the then - current year for the TIF District, with the product being due and
payable by Developer to the City on or before September 30 of the following year. The
Minimum. Assessed Value includes both the real Property and improvements thereon.
For assessment years occurring prior to the conveyance of the Property to the Developer,
both parties understand that pre - conveyance assessments will include only the value of
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the improvements which may result in assessments below the Minimum Assessed Value
and therefore payments by the Developer pursuant to this Section 11(a).
(b) Conveyance to Third Parties. The Developer shall not sell, transfer or
convey the Property, any portion thereof or any improvements thereon, to any person or
entity unless such person or entity, for itself and its successors and assigns, agrees to be
bound by the terms of this Section 11 to the same extent as the Developer.
(c) The Developer's obligations under this Section 11 shall be secured by a
Mortgage granted in favor of the City (the "Mortgage "), in the form attached hereto as
Exhibit C. The Mortgage shall be subordinate only to the mortgage of Lender securing
the Loan.
(d) The Developer's obligations, under Section S and Section 11 shall also be
secured by the City's right of special assessment or by any other remedy available to the
City by statute. If the Developer fails to pay timely any Guaranty Payment due under this
Section 11, the City may, in addition to all other remedies available to it in law or equity,
levy the amount of the overdue obligation against the Property as a special assessment
pursuant to Wis. Stat. §66.0701. In connection therewith, the Developer: (i)
acknowledges that the City has incurred costs for the payment or reimbursement of the
Project Costs; (ii) agrees that the amount of the special assessment, if levied consistent
with this Agreement, constitutes a proper exercise of the City's authority to levy special
assessments in accordance with Wis. Stat. §66.0701; (iii) agrees that the allocation of the
City's costs to the Property is reasonable and commensurate with the special benefits
provided to the Property; (iv) agrees that the amount being assessed in accordance with
this Agreement does not exceed the value of the benefits accruing to the Property from
the City's expenditures identified herein; (v) consents to the imposition and levy of such
special assessments; (vi) agrees that the approval of this Agreement by the Oshkosh
Common Council shall be sufficient to authorize the levy of special assessments in
accordance herewith, and that no further procedural steps need be taken by the City; (vii)
waives all special assessment notices, hearings and appeals provided by Wis. Stats.
§66.0701 or §66.0703; and (viii) acknowledges that the City is relying on the terms of
this Agreement, and specifically the terms of this, subsection, that such reliance is
reasonable, and that the City's payment of its obligations to the Developer under this
Agreement will be detrimental to the City if the provisions relating to special assessments
are not enforced and that a failure to enforce such agreements would be inequitable.
12. Option to Purchase Adjoining Property. The City hereby grants to Northpoint
Development Corporation ( "Northpoint "), an affiliate of Developer, the option to purchase the
property identified as "Proposed Lot 1" on the draft certified survey map attached hereto as
Exhibit D (the "Option Property "). This option shall be exercisable by Northpoint giving written
notice of exercise to the City on or before 11:59 p.m. on the third (3rd) anniversary of the
Effective Date. Upon exercise of this Option, Northpoint shall be obligated to purchase from
the City and the City shall be obligated to convey to Northpoint good and marketable fee simple
title to the Option Property for the price and upon the terms set forth herein.
10
10089180.8
The purchase price for the Option Property shall be One Dollar ($1.00).
Northpoint acknowledges that the Option Property is being sold in "AS -IS" condition, without
any representations or warranties by the City whatsoever (except for warranties of title). Title to
the Option Property shall be conveyed to Northpoint free and clear of all liens, claims and
encumbrances, except municipal and zoning ordinances, recorded easements, covenants and
restrictions, general real estate taxes and assessments, any matters which would be disclosed by
an accurate survey of the Option Property, any matters created by Developer, Northpoint, or their
respective agents, and any other matters of record except mortgages, judgments or other liens
securing obligations of the City. Northpoint shall be responsible for the premiums for any title
insurance desired by Northpoint.
If not sooner exercised, Northpoint's option to purchase the Option Property shall
expire and be null and void at the end of the three (3) year period noted herein.
13. Indemnnifications. The Developer hereby indemnifies, defends and holds the City
harmless from and against all loss, liability, damage and expense, including reasonable
attorneys' fees, suffered or incurred by the City to the extent caused by the following: (a) the
failure of the 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 the 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 damages 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) claims arising on
the Property under the Americans with Disabilities Act, and any other laws, rules, regulations or
ordinances; (e) claims for third parties for injury to or death of any person on the Property; and
(f) the failure of the Developer to maintain, repair or replace as needed any portion of the
Project.
The term "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
waste," "hazardous materials," or "toxic substances" under any applicable federal or state or
local laws or regulations.
14. Insurance. The Developer shall maintain the following insurance policies issued
by insurers with a rating of at least "A -" and in a financial size category of at Ieast "X" as
established by A.M. Best Company and licensed to do business in the State of Wisconsin: (i)
property insurance on the Property with coverage limits equal to the full replacement cost of the
building and contents; (ii) commercial general liability insurance with limits of $1,000,000 per
occurrence and $5,000,000 in the aggregate; (iii) statutory worker's compensation insurance; and
(iv) automobile liability insurance with a combined single limit of $1,000,000.
Each insurance policy shall require the insurer to provide at least thirty (30) days prior
written notice to the City of any material change or cancellation of such policy.
11
10089180.8
15. Nondiscrimination. The Developer shall not use the Project in any 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 the Developer shall
construct and operate the Project in compliance with all laws, rules, regulations and ordinances
relating to discrimination or any of the foregoing.
16. Property_ Tax Challenges and Exemptions. So long as the minimum assessment
guaranty provisions of Section 11 remain in effect, the Developer shall not seek to reduce the
assessed value of the Property below the Minimum Assessed Value. In addition, the Developer
shall not cause or permit the Property or any portion thereof to become tax exempt unless
condemned by a governmental entity. The Developer will place a restriction in any deed
conveying all or any portion of the Property prohibiting any use or ownership of the Property
which would cause the Property or any portion thereof to become tax exempt. If the Property
nevertheless becomes tax exempt, Developer, for its successors and assigns, hereby agrees that
an annual payment in lieu of tax shall be made by the then -owner of the Property. Such payment
in lieu of tax shall be determined for any given year that the Property is exempt from taxation by
multiplying the Minimum Assessed Value by the mill rate for all taxing jurisdictions established
for that tax year for the TIF District, with such payment due and payable on or before December
31 of the year in question.
17. Default. The occurrence of any one or more of the following events shall
constitute a default hereunder:
(a) The Developer or any successor shall fail to pay when due any Guaranty
Payment or other amount due from it under this Agreement; or
(b) Any representation or warranty made by the Developer or any successor in
this Agreement or any document delivered by the Developer or its successor pursuant to
this Agreement shall prove to have been false in a material way as of the time made or
given; or
(c) The Developer or any successor shall breach or fail to substantially
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 the City to the Developer (or such longer period of time as is necessary to cure the
default as long as the Developer has commenced the cure of the default within the thirty
(30) day period and is diligently pursuing to cure the default and as long as the default is
cured not later than one hundred eighty (180) days following notice thereof from the
City); or
(d) The Project is not substantially completed on or before the Completion
Date (subject to matters of force majeure); or
(e) The Developer shall: (i) become insolvent or generally not pay, or be
unable to pay, or admit in writing its inability to pay, its debts as they mature; or (ii)
make a general assignment for the benefit of creditors or to an agent authorized to
liquidate any substantial amount of its assets; or (iii) become the subject of an order for
12
10089180.8
relief within the meaning of the United States Bankruptcy Code, or file a petition in
bankruptcy, for reorganization or to effect a plan or other arrangement with creditors; or
(iv) have a petition or application filed against it in bankruptcy or any similar proceeding,
and such petition, application or proceeding shall remain undismissed for a period of
ninety (90) days or more, or the Developer shall file an answer to such a petition or
application, admitting material allegations thereof; or (v) apply 'to a court for the
appointment of a receiver or custodian for any of its assets or properties or have a
receiver or custodian appointed for any of its assets or properties, with or without
consent, and such receiver shall not be discharged within ninety (90) days after its
appointment; or (vi) adopt a plan of complete liquidation of its assets.
18. Remedies. Upon the occurrence of any default, without further notice, demand or
action by any kind by the City, the City may, at its option, pursue any one or more of the
following remedies concurrently or successively:
(a) Cease all future payments of the City Contribution; or
(b) Pursue any or all of the rights and remedies available to the City at law
and/or in equity against the Developer and /or the Project.
Except as may be otherwise specifically set forth herein, no remedy herein conferred
upon the City 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 available to the City under the T1F District Project Plan and any other covenants,
restrictions, documents or instruments governing the TIF District, and /or now or hereafter
existing at law or in equity. No failure or delay on the part of the City 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, the City shall have no duty or obligation
whatsoever with respect to any of the matters so authorized.
19. No Personal Liability. Under no circumstances shall any council member,
official, director, attorney, employee, or agent of a party have any personal liability arising out of
this Agreement, and no party shall seek or claim any such personal liability.
20. City Authorization. The execution of this Agreement by the City is authorized by
Common Council Resolution No. dated November , 2013.
21. Miscellaneous.
(a) Except as otherwise specifically set forth herein, the respective rights and
liabilities of the City and the Developer in this Agreement are not assignable or
delegable, in whole or in part, without the prior written consent of the other party.
Provisions of this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
13
10089180.8
(b) No waiver, amendment, or variation of the terms of this Agreement shall
be valid unless in writing and signed by the City and the Developer, and then only to the
extent specifically set forth in writing.
(c) All material applicable agreements, representations, warranties, covenants,
liabilities and obligations made in this Agreement and in any document delivered
pursuant to this Agreement shall remain effective during the Term of this Agreement.
(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
or 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, any such communication or notice
shall be addressed as follows, unless and until any such party notifies the other in
accordance with this section of any change of address:
If to the City: City of Oshkosh
City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI, 54903 -1130
Attn: City Attorney
Facsimile No. (920) 236 -5106
With a copy to: Godfrey & Kahn, S.C.
100 West Lawrence Street
Appleton, WI 54911
Attn: Michael J. Lokensgard
Facsimile No. (920) 830 -3530
If to the Developer: Marion Road Apartments, LLC.
230 Ohio Street, Suite 200
Oshkosh, WI 54902
Attn: Andrew Dumke
Facsimile No. (920) 230 -6484
With a cop ryto: Attorney Jason Hirschberg
Hirschberg Law, LLC
601 Oregon Street, Suite A
Oshkosh, WI 54902 -5979
(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 understandings other than
those expressly set forth in this Agreement and documents executed in connection with
this Agreement. This Agreement and the documents executed in connection herewith
14
supersede all prior negotiations, agreements and undertakings between the parties with
respect to the subject matter hereof.
(f) This Agreement is intended solely for the benefit of the Developer and the
City, 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 in connection therewith. Without limiting the foregoing, no
approvals given pursuant to this Agreement by the Developer or the City, or any person
acting on behalf of either of them, shall be available for use by any contractor or other
person in any dispute with the 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 the 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 in 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 in effect to the extent of such prohibition
or enforceability without invalidating the remaining provisions of this Agreement in such
jurisdiction or affecting the validity or enforcement 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 Developer or between the City and any other person, or
cause the City to be responsible in any way for the debts or obligations of the Developer
or any other person or cause the Developer to be responsible in any way for the debts or
obligations of the City or any other person. Each party represents, warrants and agrees,
for itself and its successors and assigns, not to make any assertion inconsistent with its
acknowledgement or with the acknowledgement : 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 a party and its successors and permitted assigns, that is inconsistent with its
acknowledgement and agreement contained in the preceding sentence.
(k) Time is of the essence as to each and every obligation or agreement
contained in this Agreement.
(1) If any party is delayed or prevented from timely performing any act
required under this Agreement other than the payment of money, by reason of fire,
earthquake, war, terrorist act, flood, riot, strikes, labor disputes or shortages, government
restrictions, judicial order, public emergency, or other causes beyond the reasonable
15
I0099180.8
control of the party obligated to perform, the 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) A memorandum of this Agreement may be recorded in the office of the
Register of Deeds of Winnebago County, Wisconsin, in lieu of the full Agreement, it
being understood by the parties that until Expiration Date, this Agreement will run with
the land and will be binding upon the Property. In the event that a separate storm water
maintenance agreement is not entered into by the parties and recorded with the Register
of Deeds, then Developer shall fully comply with the grading and drainage plan for the
Property on file with the City Department of Public Works and all applicable storm water
codes. The City shall have the authority to enter the property. and resolve all grading and
drainage issues at Developer's expense including, without limitation, special charges for
such work being placed against the Property. This Agreement inures to the benefit of the
City and its successors and assigns.
(n) The headings to this Agreement are for reference only and are not
intended to modify any of the terms and conditions of this Agreement.
(o) Nothing contained in this Agreement is intended to or has the effect of
releasing the Developer from compliance with all applicable laws, rules, regulations and
ordinances in addition to compliance with all the terms, conditions and covenants
contained in this Agreement.
(p) This Agreement is the product of negotiation between 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.
(q) Upon mutual consent of the parties to this Agreement, which consent any
party can withhold in its sole discretion, the parties can agree to submit disputes arising
under this Agreement to alternative dispute resolution.
(r) EACH PARTY TO THIS AGREEMENT HEREBY WAIVES TRIAL BY
JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM,
WHETHER CONTRACT OR TORT, AT LAW OR EQUITY, ARISING OUT OF OR
IN ANY WAY RELATED TO THIS AGREEMENT.
(s) All amounts not paid when due hereunder shall bear interest at the rate of
twelve percent (12 %).
22. Other Approvals. In addition to any approvals required under this Agreement, the
Developer shall be required to obtain all approvals, consents, and licenses as may be required by
any governmental or non- governmental authority in connection with the Project, including,
without limitation, all building permits, Project Plan approvals, storm water approvals, and
zoning approvals. The Developer's compliance with the terms of this Agreement shall not
relieve the Developer from complying with all applicable federal, state and local laws, rules,
regulations and ordinances in connection with the Project and to the extent any governmental or
16
10089180.8
non- governmental entity imposes different or more restrictive conditions on the Developer or the
Project, compliance by the Developer with the terms of this Agreement shall not relieve the
Developer from complying with such different or more restrictive conditions. Likewise, any less
restrictive conditions imposed on the Developer or the Project by any governmental or non-
governmental authority shall not relieve the Developer or the Project from complying with all of
the terms and conditions of this Agreement.
[SIGNATURE PAGES FOLLOW]
17
10089180.8
IN WITNESS WHEREOF, the parties have.executed this Agreement as of the date first
above written.
CITY OF OSHKOSH, WISCONSIN
Mark A. Rohloff
Its: City Manager
Pamela R. Ubrig
Its: City Clerk
Approved as to form:
Lynn A. Lorenson
Its: City Attorney
I hereby certify that the necessary provisions have been made to pay the liability which
will accrue under this Agreement.
Edward Nokes, Interim Finance Director
REDEVELOPMENT AUTHORITY
OF THE CITY OF OSHKOSH, WISCONSIN
Thomas Belter
Its: Chair
By:
Allen Davis
Its: Executive Director
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE]
18
1008918U
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
Personally came before me this day of , 2013, the above -named Mark A.
Rohloff and Pamela R. Ubrig, to me known to be the City Manager and City Clerk of the City of
Oshkosh, Wisconsin and the person who executed the foregoing document and acknowledged
the same.
Notary Public, State of
My commission:
STATE OF WISCONSIN }
) SS
COUNTY OF WINNEBAGO )
Personally came before me this day of , 2013, the above -named Thomas
Belter and Allen Davis, to me known to be the Chair and the Executive Director of the
Redevelopment Authority for the City of Oshkosh, Wisconsin and the persons who executed the
foregoing document and acknowledged the same.
Notary Public, State of
My commission:
19
10089180.8
MARION ROAD APARTMENTS, LLC
By: --� -
Andrew Dumke
Its: Managing Member
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
On this day of , 2013 personally came before me Andrew Dumke,
to me known to be the Managing Member of Marion Road Apartments, LLC, a Wisconsin
limited liability company, and the persons who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My commission
10089180.1
20
10089180.8
NORTHPOINT DEVELOPMENT CORPORATION (as to
Section 12 only)
By:
Andrew Dumke
Its:
(title)
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
On this day of , 2013 personally came before me Andrew Dumke,
to me known to be the ct," i' e.,.�oer of Northpoint Development Corporation, a
Wisconsin limited liability company, and the persons who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My commission
10089180.1
10089180.8
Exhibit A
Property Legal Description
10089180.8
E, XHIBIT A
Commencing at the Northwest coiner of Lot 2 CSM 6408, being a point on the South right -of
way of Marion Road; thence S65 °4622 "E, 258.54 feet along the North line of said Lot 2 and the
South right -of way Marion Road to the Point of Beginning; thence continuing along the North
line of said Lot 2 and the South right -of -way of Marion Road S65 046'22 "E, 237.01 feet to an
angle point; thence continuing along the North line of said Lot 2 and the South right-of-way of
Marion Road S65 °54'10 "E, 91.57 feet; thence S17 °49'37 "E, 97.21 feet, thence S24 113'38 "W,
188.89 feet to a point on the South line of said Lot 2; thence along the South line of said Lot 2
N65 °43'26 "W, 275.83 feet to an angle point; thence continuing along the South line of said Lot
2 N6201 0'26"W, 118.09 feet; thence N24 °13'36 "E, 253,21 feet to the Point of Beginning. Said
parcel containing 99,872 square feet or 2.293 acres more or less.
Tax parcel-number:
901.022 -2000
September 26, 2013
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'Exhibit
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Exhibit B
City Lease
10089180.8
Document Number
Lease Agreement
Document Title
This LEASE AGREEMENT (the "Lease "), made and entered
into this day of November, 2013, is by and between the City of
Oshkosh, (CITY) a Wisconsin municipality, and the Redevelopment
Authority of the City of Oshkosh, (RDA) , with their principal offices
located at 215 Church Ave., P.O. Box 1130, Oshkosh, Wisconsin:
54903 -1130, (collectively "Lessor ") and Marion Road Apartments,
LLC, (MRA) 230 Ohio Street, Suite 200, Oshkosh, Wisconsin 54902
( "Lessee "):
RECITALS
RDA owns real property within the Marion Road/Pearl Avenue
Redevelopment Phase 11 Area (Project), in the City of Oshkosh,
Winnebago County, Wisconsin.
Recording Area
Name and Return Address
City Attorney's Office
215 Church Ave. P.O. Box 1130
Oshkosh, Wf 54903 -1130
0102220000
2. The Project includes real property to be redeveloped both North of Marion Road ( "Project --- North ") and
South of Marion Road ( "Project — South "). The property included in this Lease (Leased Premises) is within
Project — South, and in particular is a part of Lot 2 of Certified Survey Map 6408, which was recorded with
the Winnebago County Register of Deeds as Document Number 1520619 on October 5, 2009. A copy of
CSM 6408 is attached as Exhibit A and fully incorporated into this Lease.
3. RDA has leased its real property within the Project area to the CITY for the purpose of facilitating its
redevelopment.
4. Lessor and Lessee have entered into a Development Agreement ( "Agreement ") dated November--, 2013,
and recorded with the Winnebago County Register of Deeds as Document Number on
November , 2013, for the purpose of constructing a residential development on the Leased Premises. A
copy of the Agreement is not attached hereto but Lessee acknowledges. that it read and signed the
Agreement, retains a copy of the Agreement, is familiar with it and agrees to be bound by its terms as it may
pertain to the development of the Leased Premises. A copy of the development footprint is attached at
Exhibit B and incorporated herein.
5. Environmental remediation is required to be performed on the Leased Premises and certain funding sources
for this environmental remediation require that Lessor continue to retain ownership of the Leased Premises
until remediation is completed.
6. It is in both parties' interests that Lessee begin construction of its apartment building and related
improvements on the Leased Premises prior to the completion of the environmental remediation, and the
purpose of this Lease is to allow this commencement of construction.
lovember 7, 2013
7. Lot 2 of CSM 6408 wiII be further divided through a new CSM after the completion of the construction
project as determined by the Lessor and the completion of the environmental remediation as determined by
the appropriate state or federal agency. The development subject to the Agreement and to this Lease will be
located within Lot 2 of CSM 6408. Lot 2 of CSM 6408 will again be divided prior to Lessor's conveyance
of the Leased Premises, with a draft of the potential future CSM attached hereto as Exhibit C. The actual
location (Leased Premises) of this development therefore can only be described by a metes and bounds
description which follows. It is expected that Lot 2 of the potential new CSM, Exhibit C, will be comprised
of the metes and bounds description of the Leased Premises.
Commencing at the Northwest corner of Lot 2 CSM 6408, being a point on the
South right -of -way of Marion Road; thence S65 °46'22 "E, 258.54 feet along the
North line of said Lot 2 and the South right -of -way Marion Road to the Point
of Beginning; thence continuing along the North line of said Lot 2 and the
South right -of -way of Marion Road S65 °46'22 "E, 237.01 feet to an angle point;
thence continuing along the North line of said Lot 2 and the South right -of -way
of Marion Road S65'54'1 O"E, 91.57 feet; thence S17 °49'37 "E, 97.21 feet;
thence S24 °13'38 "W, 188.89 feet to a point on the South line of said Lot 2;
thence along the South line of said Lot 2 N65 °43'26 "W, 275.83 feet to an
angle point; thence continuing along the South line of said Lot 2 N62 °1 0'26 "W,
118.09 feet; thence N24'1 3'36"E, 253.21 feet to the Point of Beginning.
Said parcel containing 99,872 square feet or 2.293 acres more or Iess.
8. The development of the Leased Premises described in the Agreement and in this Lease will be financed
through the Wisconsin Housing and Economic Development Authority (Lender). The Lender may request
and may be granted an interest in this Lease up to and including the right to purchase the Leased Premises
from the Lessor in place of Lessee. However, the assignment of any Lessee interest in the Leased Premises
must be related to the development and pursuant to the terms of the Agreement, must be contingent with
such transfer becoming effective in the event of a default by Lessee, and must be more fully described in
separate documents reasonably agreeable to the Lessor. All assignments, transfers, conveyances of the
Leased Premises will be subject to continuing obligations under the Agreement.
AGREEMENT
9. All Recitals are incorporated into this Agreement.
10. In exchange for one dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Lessor agrees to lease to Lessee, and the Lessee agrees to accept such
lease, the property identified and described in this Lease (Leased Premises) on the terms and conditions
expressly set forth and referenced herein.
11. The term of this Lease shall commence on the date it is executed by all parties, and shall end on the earlier
o£ (a) the date that is fifty years after the date of commencement of this Lease; (b) the date in which Lessee,
or a Project Lender as may otherwise be allowed under a Iease assignment, closes on its purchase of and
acquires full ownership interest in the Leased Premises; or, (c) the Agreement is terminated.
12. This Lease shall terminate without notice upon the insolvency of Lessee, upon Lessee's seeking bankruptcy
protection, or upon any Lessee creditor other than Lender obtaining any interest in Lessee or Lessee's
2
November 7, 2013
property. Lessor may elect to terminate this lease based upon a material default of this Lease which remains
uncured after providing 3 0 days notice of such default.
13. Pursuant to the terms of the Agreement, Lessee is obligated to take certain remediation actions at the
direction of the Wisconsin Department of Natural Resources and others relating to existing hazardous
substances on the Leased Premises (Remediation). Lessee shall perform the Remediation pursuant to the
terms of the Agreement, the terns of any grants utilized for this purpose, and the terns required by the
Wisconsin Department of Natural Resources (WDNR). Lessee must take all necessary actions which will
result in a Certificate of Completion from the WDNR for the Leased Premises. Remediation of the site
cannot be completed until construction of the improvements on the Leased Premises is completed, and the
Leased Premises cannot be conveyed by Lessor until the Remediation is complete and all applicable grants
used for Remediation are closed out. Lessee shall close on its purchase of the Leased Premises on the
earliest practical date after the later of the two following events: the issuance of the Certificate of
Completion; or, the closeout of the Remediation grants. It is expected that the grants will be closed out by
the Agencies within one hundred twenty (120) days after the issuance of the Certificate of Completion. All
parties agree that the timely expiration of this lease, and conveyance of the Leased Premises, is in everyone's
best interest and will work in good faith towards that end. Lessor shall convey the Leased Premises to
Lessee pursuant to this Lease and the Agreement.
14. There shall be no Lease payments due from Lessee to Lessor other than the payment identified in paragraph
number 10, above, except as may be required by this Lease or the Agreement during the term of this Lease.
15. The Lessee shall be allowed to. construct and operate an apartment building and related improvements on the
Leased Premises as approved by Lessor pursuant to the terms of the Agreement and consistent with other
government rules and regulations. No agreements by Lessee with others which purport to allow the use of
the Leased Premises in a manner contrary to this Lease, or to the Agreement, shall be allowed, or
enforceable, against Lessor or in rem against the Leased Premises.
16. During the term of this Lease, the Lessor shall be allowed reasonable access to the Leased Premises for any
purpose related to any municipal or police power function, to meet its obligations under this Lease or the
Agreement with Marion Road Apartments, LLC, or to function in its capacity as the owner of the Leased
Premises. Lessor shall make all reasonable efforts to not materially disrupt Lessee's allowed use of the
property.
17. During the term of this Lease, Lessee shall be deemed the owner of all improvements constructed on the
Leased Premises by Lessee, subject to any legal rights of third— parties. Lessor may take actions to gain
ownership of improvements upon the abandonment of the development and related interests by Lessee,
assignees, or others by providing known interested parties notice and a right to cure default or to affirm
interest in the Leased Premises.
18. The Lessee has had sufficient access to the Leased Premises and as a result is or should reasonably be aware
of all aspects related to its condition. The Lessor makes no express or implied promises or warranties related
to the condition of the Leased Premises except those identified in the Agreement, as Amended and Restated.
19. Lessee assumes full and complete responsibility for any development activities, fixtures, or improvements to
the Leased Premises prior to the date Lessee purchases the Leased Premises pursuant to this Lease.
3
November 7, 2013
20. Lessee acknowledges that it assumes the responsibility of ensuring that its investments in or on the Leased
Premises are protected through separate agreements with its Lenders or other measures allowed by law.
21. Lessee shall have all necessary insurance with sufficient limits which will cover its employees, actions and
property on the Leased Premises. Lessee shall hold the Lessor harmless from any accident or incident
involving Lessee, its employees or agents, or any dispute with Marion Road Apartments, LLC or any P
party resulting from any action of Lessee, its agents or assigns, occurring during the term of this Lease.
22. The Lessee is responsible for paying all utilities, costs, expenses, and obligations of any kind incurred during
the term of this Lease. The Lessee is further required, at its expense, to keep and maintain in good order,
condition, and repair the Leased Premises and all improvements constructed thereon.
23. Lessee shall not allow any encumbrance to be filed on or against the Leased Premises, including mortgages,
easements, or similar restrictions.
24. All terms of the Agreement pertaining to the Leased Premises are incorporated into this Lease, including but
not limited to representations and warranties. Lessor may pursue any breach or default of this Lease or of the
Agreement as allowed by law.
25. Lessee's restrictions on the use of the Leased Premises during the terms of this Lease are set forth in the
Agreement, and are specifically incorporated into this Lease. All other terms, conditions, benefits, burdens,
and agreements between these parties relating to the Leased Premises shall remain in full force and effect,
without alteration, with the exception of any terms that prevent the Lessee from constructing and operating
the approved apartment complex prior to taking ownership of the Leased Premises; and,
SIGNATURE PAGE TO FOLLOW
4
November 7, 2013
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
LESSEE:
Marion Road Apartments, LLC
In
Andrew J. Dumke, Managing Member
This document drafted by:
David I Praska
Assistant City Attorney
Oshkosh, Wisconsin 54903
S
November 7, 2013
LaMIT43-164
City of Oshkosh
Mark A. Rohloff, City Manager
By:
Pamela R. Ubrig, City Clerk
Oshkosh Redevelopment Authority
Thomas Belter, Chair
Allen Davis, Executive Director
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Exhibit C
Foim of Mortgage Securing Guaranty Payments
iOD89180.8
DOCUMENT NO. I MO
THIS MORTGAGE is made and entered into as of this
day of , 2011, by and between MARION
ROAD APARTMENTS, LLC, a Wisconsin limited liability
company (the "Mortgagor ") and the CITY OF OSHKOSH,
WISCONSIN, a Wisconsin municipal corporation
( "Mortgagee ").
WITNESSETH:
This Mortgage is given to secure the prompt and full
payment and performance as and when due of the obligations of
Mortgagor pursuant to that certain Development Agreement (the
"Development Agreement ") by and between Mortgagor and
Mortgagee dated as of October , 2013.
THIS SPACE RESERVED FOR RECORDING DATA
N" E AND RETURN ADDRESS
Lynn Lorenson, Esq.
City of Oshkosh
215 Church Avenue
Oshkosh, WI 54903 -1130
Parcel Identification Number
The term "Indebtedness" as used in this Mortgage shall mean all sums payable to or for
the benefit of Mortgagee by Mortgagor under the Development Agreement or this Mortgage,
including any and all expenses reasonably incurred by Mortgagee to enforce obligations of
Mortgagor, as permitted under this Mortgage or the Development Agreement.
FOR VALUE RECEIVED, Mortgagor hereby mortgages to Mortgagee Mortgagor's
leasehold interest in the real property described in Exhibit A attached hereto, with all
appurtenances and existing or.future improvements (the "Property").
The Mortgage is given to secure payment of the Indebtedness and is given and accepted
on the following terms and condition, which Mortgagor will promptly and faithfully observe and
perform.
The lien of this Mortgage is and shall at all times be secondary, subordinate and inferior
to the lien of each mortgage, deed of trust, security agreement, assignment of rents and leases
and any other instrument securing payment of the loans to Mortgagor for the construction or
development of the Property described on attached Exhibit B (the "Prior Encumbrances) ").
This subordination shall be self-executing as to the Prior Encumbrances and each of them: and
effective without any further action or consent of Mortgagee. However, without limiting the
foregoing, upon written request from any lender holding the Prior Encumbrance(s) listed on
Exhibit B, or their respective successors or assigns with respect to such Prior Encumbrance(s),
Mortgagee shall execute and deliver to such person such subordination and other instruments
that such person may reasonably require and that pass in the trade among prudent financial
institutions seeking to confirm or obtain priority over a prior filed or subordinate lien to confirm
or establish the subordination of the lien of this Mortgage to such interest. Mortgagor hereby
10242435.1
expressly covenants and agrees to pay or see to the payment of the indebtedness and
performance of the obligations secured or required by Mortgagor by any Prior Encumbrance(s)
and to pay, perform and observe all things necessary to prevent any default thereunder.
Mortgagor will immediately forward to Mortgagee a copy of any notice of default under any
then Prior Encumbrance(s) which Mortgagor may receive at any time. During the period in
which any Prior Encumbrance is in effect, Mortgagor shall also comply with the insurance and
other provisions contained therein. If any proceeds from the insurance or of any condemnation
of all or any portion of the Property become payable on loss or taking, or any other income or
proceeds of the Property would otherwise become payable to Mortgagee, the provisions in this
Mortgage for division of such proceeds shall apply only to that portion of the proceeds not
payable to the holder of any Prior Encumbrance. Each provision of this Mortgage shall be
subject to and subordinate to the terms and conditions of (and rights of the lender(s) as to) the
Prior Encumbrance(s).
1. PAYMENT AND PERFORMANCE. Mortgagor shall pay to Mortgagee all
amounts, payment of which is secured by this Mortgage, and shall perform all obligations
imposed upon Mortgagor by this Mortgage or the Prior Encumbrance(s).
2. POSSESSION AND MAINTENANCE OF THE PROPERTY.
2.1 Possession. Until in default, Mortgagor may remain in possession and
control of and operate and manage the Property and collect income from the Property.
2.2 Duty to Maintain. Mortgagor shall maintain the Property in as good
condition and repair as required under the Prior Encumbrance(s), as defined below, which
standard'shall survive the release of the Prior Encumbrances and each of them.
2.3 Nuisance, Waste. Mortgagor shall not conduct or permit any nuisance
and shall not commit or suffer any strip or waste on the Property.
2.4 Mortgagee's Right to Enter. Mortgagee and its agents and
representatives may enter upon the Property at all reasonable times upon reasonable prior written
notice (which shall in no event be less than twenty -four (24) hours' advance notice, except in the
event of an emergency) to attend to Mortgagee's interest and to inspect the Property, subject to
the right of tenants then in possession.
2.5 Alteration or Removal. Mortgagor shall not remove, demolish or
materially alter any part of the Property without Mortgagee's prior written consent; except
Mortgagor may remove a fixture, provided the fixture is promptly replaced with another fixture
of at least equal quality.
2.6 Ordinances. Mortgagor shall comply with all laws, ordinances and
regulations affecting the Property.
2
10242435.1
3. TAXES AND LIENS.
3.1 Payment. Mortgagor shall pay or cause to be paid before delinquency all
taxes and assessments levied against or on account of the Property from and after the date of this
Mortgage, and shall pay or cause to be paid all claims for work done on or for services rendered
or material furnished to the Property. Mortgagor shall maintain the Property free of any liens
created or suffered by Mortgagor having priority over or equal to the interest of Mortgagee under
this Mortgage, except for the Prior Encumbrance(s), and the lien of taxes and assessments not
due, and except as otherwise provided in Section 3.2.
3.2 Right to Contest. Mortgagor may withhold payment of any tax,
assessment or claim in connection with a good faith dispute over the obligation to pay, so long as
Mortgagee's interest in the Property is not jeopardized. If the Property is subjected to a lien for
which Mortgagor is responsible under this Mortgage which is not discharged within thirty (30)
days, Mortgagor shall deposit with Mortgagee cash, a sufficient corporate surety bond or other
security satisfactory to Mortgagee in an amount sufficient to discharge the lien plus any interest,
costs, attorneys' fees or other charges that could accrue as a result of a foreclosure or sale under
the lien. In any contest proceedings, Mortgagor will defend itself and Mortgagee and will name
Mortgagee as an additional oblige under any surety bond, and Mortgagor shall satisfy any final
adverse judgment before enforcement against the Property.
3.3 Evidence of Payment. Mortgagor shall promptly furnish evidence of
payment of taxes and assessments to Mortgagee on its demand and shall authorize the
appropriate county official to deliver to Mortgagee at any time a written statement of the taxes
and assessments against the Property.
4. PROPERTY DAMAGE INSURANCE.
4.1 Maintenance of Insurance. Mortgagor shall procure and maintain
policies of fire insurance with standard extended coverage endorsements covering all
improvements on the Property, for replacement value, and in an amount sufficient to avoid
application of any co- insurance clause and with loss payable to Mortgagee and Mortgagor, as
their respective interests may appear. Policies shall be written in amounts, in form, on terms and
with companies reasonably acceptable to Mortgagee. Mortgagor shall deliver to Mortgagee
certificates of coverage from each insurer containing a stipulation that coverage will not be
canceled or diminished without a minimum of ten (10) days' written notice to Mortgagee.
4.2 Application of Proceeds. Mortgagor shall promptly notify Mortgagee of
any loss or damage of the Property the restoration or repair of which is estimated to cost in
excess of $50,000. Mortgagee may make proof of loss if Mortgagor fails to do so within fifteen
(15) days of the casualty. So long as there is no material default under this Mortgage or the
Development Agreement and subject to the Prior Encumbrance(s), Mortgagee shall make the net
insurance proceeds actually received by Mortgagee available to Mortgagor for the restoration
and repair of the Property in a manner consistent with commercially prudent practice of secured
parties in the holding and disbursement of such funds. If the proceeds are disbursed to
Mortgagor for restoration and repair, Mortgagor shall repair or replace the damaged or destroyed
3
10242435.1
improvements in a good and workmanlike, lien -free manner, in compliance with applicable law
and reasonably satisfactory to Mortgagee.
4.3 Unexpired Insurance at Sale. Any unexpired insurance shall inure to the
benefit of, and pass to, the purchaser of the Property covered by this Mortgage at any foreclosure
sale of the Property.
5. WARRANTIES OF MORTGAGOR.
5.1 Title. Mortgagor warrants that it holds the leasehold interest in the
Property free of all encumbrances other than this Mortgage, any Prior Encumbrance(s), as
defined below, and those restrictive covenants, easements and conditions currently of record on
the Property.
5.2 Defense of Title. Subject to the matters described in paragraph 5.1,
above, Mortgagor warrants and will forever defend the title to the Property against the lawful
claims of all persons.
6. CONDEMNATION.
6.1 Application of Net Proceeds. Subject to the provisions of the Prior
Encumbrance(s), if all or any part of the Property is condemned, at Mortgagor's election, so long
as there is no material default under this Mortgage or the Development Agreement, Mortgagee
shall apply all or any portion of the net proceeds of the condemnation actually received by
Mortgagee on the Indebtedness or disburse them to Mortgagor for the restoration of the Property
to as near as practicable to its condition prior to such taking. The "net proceeds" shall mean the
total amount available after payment of all reasonable costs, expenses and attorneys' fees
necessarily paid or incurred by Mortgagor and Mortgagee in connection with the taking by
condemnation. Sale of all or any part of the Property to a purchaser with the power of eminent
domain in the face of a threat or the probability of the exercise of the power shall be treated as a
taking by condemnation to which this Section shall apply.
6.2 Proceeding_s. If any proceedings in condemnation are fled, Mortgagor
shall promptly take such steps as may be necessary to defend the action and obtain the award.
7. TRANSFER BY MORTGAGOR.
7.1 Prohibition of Transfer Without Consent. Mortgagor shall not sell or
convey the Property without the prior written consent of Mortgagee.
7.2 Effect of Consent. Consent by Mortgagee to one transfer shall not
constitute a consent to other transfers or a waiver of this Section. No transfer by Mortgagor shall
relieve Mortgagor or any other person of liability for payment of the Indebtedness. Following a
transfer, Mortgagee may agree to any extension of time for payment or performance or
modification of the terms of this Mortgage or the Development Agreement or waive any right or
remedy under this Mortgage or the Development Agreement without relieving Mortgagor or any
other person from liability.
4
10242435.1
8. RELEASE ON FULL PERFORMANCE. If all of the Indebtedness is fully
paid, performed and satisfied as and when due, Mortgagee shall execute and deliver to
Mortgagor a full release of this Mortgage.
9. DEFAULT. The following shall constitute "Events of Default ":
(a) Failure of Mortgagor or other person to pay any portion of the
Indebtedness when due, subject to any cure period expressly provided under this
Mortgage or the Development Agreement, as applicable.
(b) Failure of Mortgagor to perform any other obligation within the period, if
any, allowed under this Mortgage or the Development Agreement, as applicable, for such
cure.
(c) The commencement of any action to foreclose any one or more bf the
Prior Encumbrances or the attachment to the Property of any other lien or encumbrance
not a Prior Encumbrance under this Mortgage.
10. RIGHTS AND REMEDIES ON DEFAULT.
10.1 Remedies. Upon the occurrence and during the continuance of any Event
of Default, Mortgagee may exercise anyone or more of the following rights and remedies:
(a) Mortgagee may declare the entire Indebtedness immediately due and
payable.
(b) Mortgagee shall have the right to foreclose this Mortgage in accordance
with applicable law.
(c) If permitted by applicable law, Mortgagee may obtain a judgment for any
deficiency remaining in the Indebtedness due to Mortgagee after application of all
amounts received from the exercise of the rights provided in this Section.
(d) With respect to all or any part of the Property that constitutes personalty,
may exercise the rights and remedies of a secured party under the Uniform Commercial
Code, as adopted in the State of Wisconsin.
(e) Mortgagee shall have the right, with notice to Mortgagor, to take
possession of the Property and collect income, including amounts past due and unpaid,
and apply the net proceeds, over and above Mortgagee's costs, against the Indebtedness.
Mortgagee may exercise its rights under this paragraph either in person, by agent or
through a receiver.
(fl Mortgagee may pursue any and all other rights and remedies available
under the Development Agreement or applicable law or equity.
10.2 Attorneys' Fees; Expenses. In the event suit or action is instituted to
enforce any of the terms of this Mortgage, the Mortgagee shall be entitled to recover its costs and
5
1024243 5.1
attorneys' fees at trial, on any appeal and on any petition for review, or other proceedings,
including without limitation, any arbitration or bankruptcy case or proceedings, in addition to all
other sums provided by law.
11. SECURITY INTEREST.
11.1 Fixture Filing. This instrument constitutes a financing statement filed as
a fixture filing in the Official Records of the County Recorder of the county in which the
Property is located with respect to any and all fixtures included within the term Property as used
herein and with respect to any goods or other personal property that may now be or hereafter
become such fixtures.
11.2 Form 'of Mort a e /Tax Key Number. The Property is not homestead
property. The tax key number(s) of the Property are as set forth on attached Exhibit A.
12, ENVIRONMENTAL LAWS. Mortgagor represents, warrants and covenants to
Mortgagee (a) that, except in compliance with Environmental Laws or as would have no material
adverse effect on the condition or value of the Property, during the period of Mortgagor's
ownership or use of the Property no substance has been, is or will be present, used, stored,
deposited, treated, recycled or disposed of on, under, in or about the Property in a form, quantity
or manner that, if known to be present on, under, in or about the Property, would require cleanup,
removal or some other remedial action ( "Hazardous Substance ") under any federal, state or local
laws, regulations, ordinances, codes or rules ( "Environmental Laws "); (b) that Mortgagor has no
knowledge of any prior use or existence of any Hazardous Substance on the Property by any
prior owner of or person using the Property; (c) that, without limiting the generality of the
foregoing, Mortgagor has no knowledge that the Property contains asbestos, polychlorinated
biphenyl components (PCBs) or underground storage tanks; (d) that to Mortgagor's knowledge
there are no conditions existing that would subject Mortgagor to any damages, penalties,
injunctive relief or cleanup costs in any governmental or regulatory action or third -party claims
relating to any Hazardous Substance; (e) that Mortgagor is not subject to any court or
administrative proceeding, judgment, decree, order or citation relating to any Hazardous
Substance; and (f) that Mortgagor in the past has been, and at the present is, in compliance with
all Environmental Laws. Mortgagor shall indemnify and hold harmless Mortgagee, its directors,
officers, employees and agents from all loss, cost (including reasonable attorneys' fees and legal
expenses), liability and damage whatsoever directly or indirectly resulting from, arising out of, or
based upon (i) the presence, use, storage, deposit, treatment, recycling or disposal, at any time, of
any Hazardous Substance to or from the Property; (ii) the violation or alleged violation of any
Environmental Law, permit, judgment or license relating to the presence, use, storage, deposit,
treatment, recycling or disposal of any Hazardous Substance to or from the Property, or (iii) the
imposition of any governmental lien for the recovery of environmental cleanup costs expended
under any Environmental Law. Mortgagor shall immediately notify Mortgagee in writing of any
governmental or regulatory action or third -party claim instituted or threatened in connection with
any Hazardous Substance on, in, under or about the Property.
13. ASSIGNMENT OF RENTS AND LEASES. Mortgagor assigns and transfers
to Mortgagee, as additional security for the Indebtedness, all rents that become or remain due or
are paid under any agreement or lease for the use or occupancy of any part or all of the Property.
6
1024243 5.1
Until the occurrence of an event of default under this Mortgage or the Development Agreement,
Mortgagor has the right to collect the rents, issues and profits from the Property, but upon the
occurrence of such an event of default, and the giving of notice by Mortgagee to Mortgagor
declaring that construction possession of the. Property is in Mortgagee, Mortgagor's license to
collect is terminated and Mortgagee shall be entitled to such rents, issues and profits and may,
after giving Mortgagor any notice and opportunity to perform required by law, notify any or all
tenants to pay all such rents directly to Mortgagee. All such payments shall be applied in such
manner as Mortgagee determines to payments required under this Mortgage and the Secured
Obligations. This assignment shall be enforceable and Mortgagee shall be entitled to take any
action to enforce the assignment (including notice to the tenants to pay directly to Mortgagee or
the commencement of a foreclosure action) without seeking or obtaining the appointment of a
receiver or possession of the Property.
14. MISCELLANEOUS.
14.1 Time of Essence. Time is of the essence of this Mortgage.
14.2 Bindina Upon Successors and Assigns. Subject to the limitations stated
in this Mortgage on transfer of Mortgagor's interest, this Mortgage shall be binding upon and
inure to the benefit of the parties, their successors and assigns.
14.3 Expenditure by Mortgagee. If Mortgagor fails to comply with any
provision of this Mortgage within the time allowed (including any cure period allowed by this
Mortgage after notice from Mortgagee), Mortgagee may elect to take the required action on
Mortgagor's behalf, and any amount that Mortgagee expends in so doing shall be added to the
Indebtedness. Amounts to added shall be payable on demand with interest from the date of
expenditure at the rate past due amounts under the Development Agreement bear, but not, in any
event, at a rate higher than the maximum rate permitted by law. Such action by Mortgagee shall
not constitute a cure or waiver of the default or any other right or remedy which Mortgagee may
have on account of Mortgagor's default.
14.4 Notices. Any notice under this Mortgage shall be in writing and shall be
effective when either delivered in person or, if mailed, shall be deemed effective on the second
day after deposited as registered or certified mail, postage prepaid, addressed to the party at the
address stated in this Mortgage. Any party may change its address for notices by written notice
to the other.
14.5 Invalid Provisions to Affect No Others. If any of the provisions
contained in the Development Agreement or this Mortgage shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining provisions in this Mortgage and the
Note shall not be affected.
14.6 Changes in Writing. This Mortgage and any of its terms may only be
changed, waived, discharged or terminated by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is sought. Any
agreement subsequently made by Mortgagor or Mortgagee relating to this Mortgage shall be
superior to the rights of the holder of any intervening lien or encumbrance.
7
10242435.1
14.7 Applicable Law. The law of the state in which the property is located
shall be applicable for the purpose of construing and determining the validity of this Mortgage
and determining the rights and remedies of Mortgagee on default.
[Signature page follows.)
10242435.1
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date first
written above.
MORTGAGOR:
MARION ROAD APARTMENTS, LLC
By: _
Name:
Its:
STATE OF WISCONSIN }
} SS
COUNTY OF OUTAGAMIE )
On this day of , 2013 personally came before me ,
to me known to be the of Marion Road Apartments, LLC, a Wisconsin limited liability
company, and the person who executed the foregoing instrument on behalf of said limited
liability company, and acknowledged the same.
Notary Public, State of Wisconsin
My commission
This instrument was drafted:
Michael J. Lokensgard, Esq.
Godfrey & Kahn, S.C.
100 West Lawrence Street
P.O. Box 2728
Appleton, WI 54912 -2728
9
10242435.1
EXHIBIT A
Real Property
10242435.1
EXHIBIT B
Prior Encumbrances
[Mortgage of Lender in amount not to exceed $7,000,000.00.]
10242435.1
Exhibit D
Option. Property
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Exhibit
ASSIGNMENT OF LEASE
THIS CONTINGENT ASSIGNMENT OF LEASE (the "Assignment ") is made effective
this clay of , 2013, by and between MARION ROAD APARTMENTS,
LLC, a Wisconsin limited liability company, whose principal office is located at 230 Ohio
Street, Suite 200, Oshkosh, Wisconsin 54902 ( "Borrower "), WISCONSIN HOUSING AND
ECONOMIC DEVELOPMENT AUTHORITY, a Wisconsin public body corporate and
politic, whose principal office is located at 201 West Washington Avenue, Suite 700, Madison,
Wisconsin 53703 ("Lender"), and the CITY OF OSHKOSH, a Wisconsin municipality, and
the CITY OF OSHKOSH REDEVELOPMENT AUTHORITY (collectively, the "City ") by
virtue of being the Landlord of the Property (collectively referred to as "Parties ") (individually
as "Party ")
RECITALS
The City is the owner of that property commonly known as Lot 2 of Project - South as
part of the Marion Road/Pearl Avenue Redevelopment Phase II Area and more
particularly described as part of Lot 2 of CSM 6408 with the development's specific
location identified in Exhibit A attached to this Assignment (Leased Premises), CSM
6408 is recorded with the Winnebago County Register of Deeds as Document Number
1520619 on October 5, 2009, and is incorporated into this Assignment;
2. The City and the Borrower have entered into a Lease Agreement dated
October , 2013 for Leased Premises within the Property (the "Lease ") to allow
Borrower to begin development and construction on the Leased Premises;
3. The Lender is making a loan to the Borrower for construction of a building on the Leased
Premises;
4. In order to make such loan, the Lender is requiring that the City of Oshkosh consents to
this Assignment, and that Borrowex enters into this Assignment as a condition of
obtaining the loan.
AGREEMENT
5. Recitals, The foregoing recitals are adopted by the Parties, incorporated herein by
reference and made a part of this Assignment,
6. Aareenient. The parties enter into this agreement in consideration of the mutual
covenants contained herein and other good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged.
7. Assignment. As a condition of obtaining the loan, Borrower hereby assigns, grants, and
conveys to Lender all of its rights, title, and interest under the Lease for collateral
purposes. The Parties agree that such assignment is being done solely for the purpose of
securing all payments and obligations of the Borrower in relation to all loans and loan
obligations issued to the Borrower for construction purposes or other purposes in relation
to the development or use of the Property, and that the Lender will not exercise its rights
September 2G, 2013
�l
under this Assignment unless Borrower is in default under the terms and conditions of
any note, line of credit, loan document, this Assignment, or any other obligation secured
by this Assignment, for construction or development on the Property.
S. Payment and Perforinance. Borrower agrees to pay to Lender all amounts owed to the
Lender that are secured by this Assignment in a timely manner, and Borrower agrees to
strictly perform (1) all of Borrower's obligations under this Assignment; (2) the
Borrower's obligations under the Lease; (3) the Borrower's obligations under any
associated or related loan documents as issued by the Lender in relation to the
development of the Leased Premises; and (4) all obligations of the Borrower under that
Development Agreement, as may be amended, as entered into by and between Marion
Road Apartments, LLC and the City for development of the Leased Premises
(collectively referred to as the "Agreements "). So long as Borrower is not in default
under the terms of this Assignment and not in default of the Agreements, Borrower shall
remain in sole possession and control of the Property and be considered to be the Lessee
under the Lease.
9. Notice. Borrower agrees that at no time shall the Borrower be in default under the terms
and conditions of any of the Agreements, and in the event that Borrower shall be in
default of any of the Agreements, or any default under these Agreements is about to take
place, the Borrower and the City agree to immediately notify the Lender and give the
Lender a reasonable opportunity to step into the Lease and cure such default. Borrower
and Lender agree to immediately notify the City of any default, or imminent default, of
any agreements between Borrower and Lender.
10. Warranties and Representations by Borrower, Borrower hereby represents and
warrants that as of the date of signing this Assignment, the following:
a. Ownership. Borrower is entitled to all rights and title under the Lease and has not
entered into any other loan obligation in relation to the Leased Premises.
b. Right to-Assign. Borrower has full right and approval from the City to assign the
Lease for Collateral purposes.
c. No Prior Assi nom. Borrower has not conveyed or previously assigned any right
under the Lease prior to entering into this Assignment.
d. No Further Transfer. Borrower will not sell, assign, encumber, or otherwise dispose
of any of Borrower's rights in the Lease other than those issued in this Assignment.
11. Lender's Right to Step Xnto the Lease. Lender shall have the right, but not the
obligation, at any time upon a default by Borrower under this Assignment or any of the"
Agreements to enter upon and take possession of the Leased Premises and perform all of
Borrower's duties under the Lease and/or Development Agreement with the City with
respect to the Leased Premises. In the event of a default by the Borrower, the Lender
shall be given a reasonable opportunity to cure any default by the Borrower under the
terms of the Development Agreement to preserve its collateral interest in the Leased
Premises and to purchase the Leased Premises on the same terms and conditions as the
2
September 26, 2013
Borrower, Lender may engage any agent or agents as Lender may deem appropriate to
cant' out the terms and conditions of those Agreements. To the extent that the Lender
steps into the Lease in place of the Borrower, the Lender specifically assumes all
obligations and liabilities of the Borrower pursuant to the Development Agreement, as
may be amended, between the City and Borrower. The aforementioned Development
Agreement is not attached hereto, but the Lender affirms that it is familiar with the
document referenced, and its terms therein, or has been given the opportunity to make
such inquiry. Prior to stepping into the Lease, the Lender shall notify the City in writing
of its intent to take such action. The Lender's notification to the City shall identify the
specific default(s) of the Borrower and the specific authority for the Lender's action.
Borrower agrees that the City shall be able to reasonably rely upon the information in the
Lender's notice and to take all reasonable actions in reliance upon such notice. Borrower
releases, and specifically. waives, all claims for damages under any theory against the
City based upon the City's reasonable reliance upon the.Lender's notice.
12. Lender's Right to Confirm with the Ci . Lender shall have the right at any time, even
though no default may have occurred under this Assignment or any of the Agreements, to
confirm with the City that no default has occurred in relation to Borrower's performance
under the Agreements.
13. Consent by City. The City hereby consents to this Assignment so long as Lender does
not exercise its rights to assume the Lease until such time as the Lender is notified of an
actual default under the Lease or the Agreements.
14, Lejgal Expenses. If any legal action or other proceeding between the Lender and the
Borrower is brought for the enforcement of this Assignment, or because of an alleged or
actual dispute, breach, default or misrepresentation between the Lender and the Borrower
in connection with any provision of this Assignment, and the Lender shall be successful
in the enforcement of this Assignment, the Lender shall be entitled to recover from the
Borrower reasonable attorneys' fees and other costs incurred in such action or proceeding
in addition to any other relief to which it may be entitled.
15, No Waiver. The failure of Lender to insist upon any one or more instances of strict
performance of any of the terms of this Assignment or to institute any action, including
the rights and privileges granted to it shall not be construed as a waiver of such terms.
16. Binding-Effect. This Assignment binds and inures to the benefit of the Parties and their
respective successors and permitted assigns, as the case may be.
17. Governinty Law and Venue, This Assignment has been negotiated and executed in the
State of Wisconsin and shall be governed by and interpreted and construed in accordance
with the laws of the State of Wisconsin. In the event of any dispute, the venue of any
litigation shall be the Circuit Courts of Winnebago County, Wisconsin. ,
fRE112AINDER OF, PAGELEFTINTENTIONALLYBLAAW;
SIGNATURE PAGE FOLL0WSJ
Sepfember 26, 2013
BEACH PARTY ACKNOWLED GES THAT THEY HAVE CAREFULLY READ
AND FULLY UNDERSTAND ALL OF TIDE PROVISIONS OF THIS ASSIGNMENT.
IN WITNESS'HEREOF, the parties have hereunto set their hands the day and year first
above written.
BORROWER:
Marion Road Apartments, LLC,
a Wisconsin limited liability company
Andrew Durnke,
Managing Member
City of Oshkosh Redevelopment
Authority
By:
In
Thomas Belter, Chair
Allen Davis
Executive Director
September 25, 2013
LENDER:
Wisconsin Housing and Economic
Development Authority
By:
Timothy J. Radelet
General Counsel
CITY:
City of Oshkosh
By:
Mark A. Rohloff
City Manager
By:
Pamela R. Ubrig
City Clerk
By:- -
Lynn Lorenson
City Attorney
fAcknoWedgements nexf page.]
4
STATE OF WISCONSIN )
)Ss
WINNEBAGO COUNTY )
Personally came before me this day of , 2013, the above -named Andrew
Dur ke, to me known to be the person who executed the foregoing instrument and acknowledged
the same.
Notary Public, State of Wisconsin
My Commission expires:
STATE OF WISCONSIN )
) ss
DANE COUNTY }
Personally came before me this day of , 2013, the above -named
Timothy J. Radelet, to me known to be the person who executed the foregoing instrument and
acknowledged the same.
Kathleen A. Kober
Notary Public, State of Wisconsin
My Commission expires:
STATE OF WISCONSIN )
ss
WINNEBAGO COUNTY )
Personally came before me this day of , 2013, the above -named Allen
Davis, to me known to be the person who executed the foregoing instrument and acknowledged
the same.
Notary Public, State of Wisconsin
My Commission expires:
5
September 26, 2013
STATE OF WISCONSIN )
ss
WINNEBAGO COUNTY )
Personally came before me this day of , 2013, the above -named Thomas
Bolter, to me known to be the person who executed the foregoing instrument and acknowledged
the same.
Notary Public, State of Wisconsin
My Commission expires;
STATE OF WISCONSIN )
ss
WINNEBAGO COUNTY )
Personally carne before me this day of , 2013, the above -named Mark A.
Rohloff, to me known to be the person who executed the foregoing instrument and acknowledged
the same.
Notary Public, State of Wisconsin
My Commission expires:
STATE OF WISCONSIN )
ss
WINNEBAGO COUNTY )
Personally carne before me this day of _ , 2013, the above -named Pamela
R. Ubrig, to me known to be the person who executed the foregoing instrument and
acknowledged the same.
Notary Public, State of Wisconsin
My Commission expires:
6
September 26, 2013
STATE OF WISCONSIN )
} ss
WRMEBAGO COUNTY )
Personally came before me this day of , 2013, the above - named Lynn
Larenson, to me known to be the person who executed the foregoing instrument and
acknowledged the same,
Notary Public, State of Wisconsin
My Commission expires:
7
September 26, 2013
EXHIBIT A
Commencing at the Northwest corner of Lot 2 CSM 6408, being a point on the South right-of-
way of Marion Road; thence 865 °46'22 "E, 258.54 feet along the North line of said Lot 2 and the
South right -of -way Marion Road to the Point of Beginning; thence continuing along the North
line of said Lot 2 and the South right-of-way of Marion Road S65 °46'22 "E, 237,01 feet to an
angle point; thence continuing along the NoAh. line of said Lot 2 and the South right -of -way of
Marion Road S65 154'10 "E, 91,57 feet; thence S17 °49'37 "E, 97.21 feet; thence S24 °13'38 "W,
188.89 feet to a point on the South line of said Lot 2; thence along the South line of said Lot 2
N65 043'26 "W, 275.83 feet to an angle point; thence continuing along the South line of said Lot
2 N6201 0'26"W, 118.09 feet; thence N24 °13'36 "E, 253.21 feet to the Point of Beginning. Said
parcel containing 99,872 square feet or 2.293 acres more or less.
Tax parcel numbcr:
901- 022 -2000
September 26, 2013