HomeMy WebLinkAboutDevelopment Agreement/OI Management Corp DEVELOP6TENT AGREEMENT
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This Dwclopmc�t Agrcemcnt (Ihe "AereemenP� is made as of the r�day of October,
2012 by and be[ween the CITY OF OSIIKOSH, WISCONSIN, a Wisconsin municipal
cocporation (the °C�") and OI MANAGEMENT CORPORATION, a Wisconsin corpora[io�
(the "Develooer").
RECITALS
A The Developer is the ma�ager of OSHKOSH INVESTORS, LLC, a Wisconsin
limited liability company ("Oshkosh Investors"). Oshkosh Investors has acquired a 176 room
hotel p�operty located at One North Main Street in the Ciry of Oshkosh, Wisconsin, which
property is more partiwlady described on Exhibit A attached hereto (the "Pro e '�.
B. The Developer and Oshkosh Investors plan to remodel, repair, rehabilitate and
reconstruct the hotel bcated on the Property into a mid- to upper price full service hotel with
banque[ facilities and convention servicc.
C. Pursuant to Wis. Stats. §66.1105 (the "Tax Increment Law'), the City may
exercise all powers �ecessary and convenie�t m (i) carry out the p�rposes of the Tax locrement
Law, (ii) cause eertain project pin�s to be prcpared, (iii) implement the provisions and effectuate
the pu�poses of said project plans, and (iv) finance development through the use of tax
ineremental financing.
D. The City has (i) created Tax Increme�t Dishiet No. 25 (Ciry Center Hotel -
Rchabilitation) (as amended from time to time, the "TIF DistricP'), and (ii) approved a project
plan for the redevolopment of the TIF District (as arne�ded from time to time the "TIF District
Proicct Plad').
E. The Property is Iocated within the TIF DisMct.
F. The Developer and Oshkosh Investors desire to redcvelop the Property in
accordance with the provisions of this Agreemen[.
G. The City desires ro encourage economic development, expand the City's tax base,
and create new jobs within the City and withi� the TIF District.
H. As an indacement to thc Developer and Oshkosh Investors to u�dertake thc
Project and in order to achieve the objectives of the TIF DisMct, (i) the City may undertake
certxi� publie improvements, and (ii) the City shall provide financial assistance to the Developer,
all in accordanec with Ihe provisions of this Agreement.
I. The City (i) believes the Project will further the goals of the TIF District by
inereasing the value of the Pcoperty for property tax purposes, providing a valuable service to the
community and ereating local employment opportunities, and (ii) expects that the anticipated tax
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increment to be produced by the Project will be adeq�ate ro recover the Project Costs (as dcfincd
below) within the life of the TIF District.
J. The City finds i[ to be in the public interest ro utilize tac incremcntal financing to
assist the Developer and Oshkosh Investors to uudertake the Project, consistent with the tcrtns
and conditions of this Agreement.
K. Funds used to provide Ihe Developer and Oshkosh Investo�s wi[h [he tax
incremental fina�cing for the Project Costs (the "TIF Funds") shall be raised (i) by City
borrowing and/or(ii) from tax income generated in the TIF District.
L. The City and Developer agree that but for the City's willin�ess to provide
development assistance for the Project, the Project would not take place in the City.
M. The Ciry finds that constmctio� of the Project, and fulfillment of the terms and
conditions of this Development Ageement are in the vital and bcst interest of the City and its
residents and fulfill a public purpose in accordance with state law.
NOW THEREFORE, in consideration of the foregoing recitals that are inco�porarod
hereto and made a part of this Agreement, the promises, covenants and ageements contained in
this Agreemen[ and other good and valuable consideratioq the receipt and sufficiency of which
are acknowledged, the Developer and the City promise, covenant and agree as follows:
l. Definitions. As used i� this Ageement, the following terms shall have the
following meanings:
(a) "Anrival Tax Inciement Deficit° means the shortfall between (i) Tax
Inerements received by the City daring any calendar year, aud (ii) the debt service
payable by the City during such calendar year on all amounts disbursed under this
Agceement for or on behalf of the Projeet, plus those costs payable to the City p�rsaant to
Section 9 of this A�eement aud Section 8 of the Oshkosh Investors Devetopment
Agreeme�t (as that term is described below), for s�ch ealcndac year.
(b) "Citv" means [he City of Oshkosh, Wiswnsiq a Wisconsin municipal
corporatioq its successors and assigns.
(c) "ClosinR Date" means the date on which all wnditions precedcnt lo [he
funding of the Grant have been sa[isfied or waived by the City, after which the City shall
deposit the Grant funds into cscrow for subsequent disbursement as described undcr
Scction 4,below.
(d) "Comnletion Date"means June 3Q 2013.
(c) °Develouer" means OI Management Co�poration, a Wisconsin
wrporation, its successors and assigns.
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(� "DefaulP' means the occurrence of any one or moro of the events
described in SecNon 77, below.
(g) "Disbursine AereemenY' means the Disbursing Agreement describcd in
Section 4, below,in the form attached hereto as Exhibit B.
(h) "Eauitv Contribution" means a contrib�tion to the Project by Oshkosh
Investors in an amount of not ]ess than Three Million Five Hundred Thousand and
No/100 Dollars (53,500,000.00).
(i) "Exuiration Date° means the earliest to occur of(i) the termi�ation of the
TIF DisMct under Wis. Stat. §66.1105(7), or (ii) the repayment by the Developer of thc
Grant as a result of an event of default pursuant to Section 18, below.
(j) "GranP' means a developme�t assistance grant in an amount of Two
Million and No/!00 Dollars ($2,OOQOOQ00) to be provided by the City ro the Devcloper
under the terms and conditions of this Agreeme�t.
(k) "Guarantv" means the Developer's guaranry of increment revenue to be
received by the City, as more speciHcally described in Section 12, below.
(I) "Lender" means the financia] institution(s) providing the Loan to
Developer, which institution(s) shal] be approved by the City.
(m) "Load' means one or more loans to fund Project Costs in the maximum
amount of Seven Million Five Hundred Thousand and No/100 Dollars ($7,SOQ000.00)
from Lender to Oshkosh Investors.
(n) "Minimum Project CosP' means Fourteen Million and No/100 Dollars
($14,OOQ000.00).
(o) "Oshkosh Investors Develooment AereemonP' means that certain
Development Agreemen[ between the City and Oshkosh Investors, in the form attached
hereto as Exhibit E, pursuant to which the City will make up to One Million Dollars
($1,OOQ000.00) in "pay as you go" contributions of Tax Increment [o Oshkosh Inves[ors
duringthe Tenn.
(p) "Proiect° means the acquisition, ieuovatioq fumishing and equipping oC
the 176 room hotel ]ocated on the Property into a mid- to upper price full service hotel
with banyuet facilities and convention service.
(q) "Proiec[ Costs" means the total eosts of acquiring renovating fumishing
and equipping the Project, ineluding all capital expenditures (or expenditures that eould
be treated as capital expenditures) and preliminazy expenditures (such as architectural,
engineering surveying soil testing and similar costs that aze incu�red i� connection with
the construction of the Project) and all other direct or indirect costs of development of the
Project in accordance with the Project Plans.
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(r) `Proiec[ Costs I[emization" means a cost itemization of construc[ion and
nonconstruction wst items identifying each element of the Project and any contingency
and all other direct or indiiect costs of development of the P�oject in accorda�ce with the
Project Plans.
(s) "Proiect Plans" mearis fina] detailed plans and specifications for the
Project including, without limitatioq the plans a�d specifications for thc ronovallon of
the hotel lobby, public meeting spaces, guest rooms, the repair and ceplacement, as
necessary, of building systems, and all other improvements locatcd or to be located on Ihe
Proper[y.
(t) °ProoeRV" means the parcel of land upon which the Project is located, as
legally described on Exhibit A.
(u) "Tax IncremenP' shall have the meaning set forth in Wis. Stat.
§'66.1105(2)(i).
(v) "Term" mea�s the period of time commeucing on the Closing Date and
terminating on the Expiration Date.
(w) "TIF Dish-icP' means Oshkosh Tax Incremental District No. 25 (City
Center Hotel Rehabilitation).
(x) "TIF District Proiect Plad' means the Project Pla� for Tax Inc�ement
DisMct No. 25 as approved by the City's Common Council on May 22, 2012 and by thc
Joint Review Board on lune 12, 2012, as the same may be amendcd from time to time.
(y) "Title Comnand' means Schmitt Title, LLC or such other title company as
the Developer and City may designate by mutua] agreement as disbursing agent under the
Disbursing Agreement.
2. Proiect Overview. The Developer will construct the Project on the Property in
accordance with the Project Plans. To assist thc Dcvcloper with the Project, the City will
pruvide the Grant, which will be disbursed pursuant to the Disbursing Ageement. Thc
Developer will cause Oshkosh Investors to make the Equity Con[ribu[ion and will provide or
ob[ain a�y addi[ional moncy �cquiied [o complete the Project.
3. Citv GmnL To assist the Developer with thc Project, the City shall make a
dwclopment assistance gant in an amount of up to Two Million Dollars (S2,OOQ000), so long as
the terms and conditions set forth in this Agreement are met The City will provide or obtain
any mo�ey required to make the Grant tluough (i) City bo�rowing and/or (ii) from tax inerement
generated in the TIF District.
4. Disbursement of G�ant Funds. On the Closing Date, the City will deposit the
Grant funds into an escrow account designated for the Project, m be held by the Title Company
and disbursed i� aceordancc with the Disbutsing AgeemenL All interest eamed on the Grant
funds in the escrow accoant shall accrue to the benefit of the City and shall be paid to the City.
The Disbursing Agreement shall require that the Eq�ity Contnbution (after reduction for such
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amounts already expended as described and evidenced pursuant ro Section 5(�, below) and the
Loan procecds bc dcpositcd to thc escrow account and disbursed prior to the disbursement of the
Grant. The Grant funds shall be disbursed to pay for Project Costs pursuant m the tertns and
conditions of the Disbursing Agreement, which shall be Ihe Title Company's s[andard form for
disbu�sement of wnstruction loans, with such changes as the Developer and City may agree
upon. The Disbursing Agreement also will state that in the event of a casaalty, the City will
continue to disburse the Grant funds only if the Developer and/or Oshkosh Investors decides to
reconstruct the Project in accordance with the Project Plans and the insurance proceeds are
disbursed prior to the disbursement of the balance, if ang of the Grant funds.
5. Conditions Precedent to Citds Oblieations. In addition to all other conditions
and requirements set forth in this Ageement, the obligations of the City hereunder (including,
without ]imitation, the obligation of the CiTy to disburse the Grant) 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 pmvide the
City an opinion of counse] reasonably acceptable to the City stating among other things,
that the persons executing this Agreement on behalf of the Developer are authorized to do
sq that the Developer has duly authorized entry into this Agreement, and other matters as
are reasonably requested by the City.
(b) On or before the Closing Date, the Developer shall have provided the City
with (i) certified copies of its Articles of Incoeporation and Bylaws, and (ii) a current
Certificate of Status issued by the Wisconsin DepaRment of Financial Instiwtio�s.
(c) On or before the Closing Date, the Developer, at its sole cost, will provide
the Title Company with the Project Costs Itemization. The Project Costs Itemization
shall demonstrate Project Costs not less than the Minimum Project Cost, shall be certified
by the Developer and Hoffrnan, LLC as acwrate and complete, and shall be otherwise
reasonably acceptable to the City.
(d) On or before the Closing Date, the Developer, at its sole cost, shall
provide the City with the Project Plans, which Project Plans must be reasonably
acceptable in all respeets to the City.
(e) On or before the Closing Date, Ihe Developer and/or Oshkosh Inves[ors
shall have entered into a construction contract with Hoffman, LLC for the Project.
(� On or before the Closing Date, the Devcloper shall have provided the Title
Company with evidence reasonably satisfactory [o the City showing the amounts
expended by the Developer for Project Costs (which amounts shall be credited toward the
Eqaity Contribution), and the Developer shall deposit the balance of the Fquity
ConMbution (if any) with the Tide Company.
(g) On or before the Closing Date, the Developer, the City, and the Title
Company shal] have agreed on the changes to bc made to the Tifle Compariy's standard
form for disbursement of construction loans in preparing the Disbursing Agreement
refened[o iu Sectiou 4, above.
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(h) On the Closing Date, no unwred default, or wcnt which with the giving
of notice or lapse of time or both would be a default, shall exist under this Agreement.
(i) On or before Ihe Closing Date, [he City and Oshkosh Invcstors shail have
entered into an ageement pursuant to which Oshkosh Investors will make payments m
the City for the �se of the parki�g structure located adjacent to the Property, substantially
in the form attached hereto as Exhibit C.
Q) On or before Ihe Closing Date, Oshkosh Investors shall have (i) conveyed
the real property described on Exhibit D to the City (the "Riverwalk PazceP'), and (ii)
gantcd such permanent arid temporary easements as are necessary to allow the City to
construct those portions of the City Center Area and Hotel Zone segment of its
contiouous riverwalk system (as envisioned by the City's 2005 "Fox River Comdor
Riverwalk Plan and Design Guideli�es,° as the same may be amended from time to time)
which aze located on the Riverwalk Paroel, the Property or within the adjoining channcl
of the Fox River.
(k) On or before the Cbsing Date, the City and Oshkosh Investors shall have
entered into an Operations Agreement pursuant to which Oshkosh Investors will assume
the management, marketing promotion and operation of the Oshkosh Co�vention Center.
(1) On or before the Closing Date, Oshkosh Investors shall have delivered the
subordination agreement roferenced in Section 7(j),below to the City.
Unless al] conditions contained iu [his Section 5 are satisfied within the time
penods for satisfaction of such conditions as set forth above or such conditions aze waived in
writing by the City within the time periods for satisfaction of such eonditions as set forth above,
the City, at its option, exercised in its sole disaetion, may terminate this Ageement, in which
event none of parties to this A�rceme�t shal] have any further liability or other obligation to the
other parties.
6. Renresentations. Warranties of Develo�. The Developer represents and
warrants to the City as follows:
(a) The Developer is a corporation duly i�co�porated and validly exis[ing and
has the power and all necessazy licenses, peRnits, a�d franchises to own its assets and
propeRies and to casy on its business.
(b) 1'he Developer is the solc ma�ager of Oshkosh Inves[ors.
(c) The Developer is duly licensed or qualified to do busioess in the State of
Wisconsin and all other jurisdictions in which failure to do so would have a material
adverse effeet on its business or financial condi[ion.
(d) The exewtioq delivery and perfonnance of this Agreement have been
duly authorized by all necessary corporate action of the Developer and constitute the
valid and binding obligations of the Developer enforceable in accordance with their
terms, subject only to applieable bankruptcy, insolveney, reorganization, moratorium,
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general principles of cquity, and othcr similar laws of general application affecting Ihe
enforccability of crcditors' rights gonorally.
(e) The executioq delivery, and performance of the Developer's obligations
pursua¢t to this Agreement will not violate or conflict with the Developer's Articles of
Incorporation or Bylaws or any indenture, instrument or agreeme�t by which the
Developer is bound, nor will Ihe 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.
(� There is no ]itigatioo or proceeding peoding 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 e�forceability
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.
(g) The Project Costs Itemization acwrately reflects all Project Costs that will
be incurred in the acquisitioq renovatioq furnishing and cquipping of the Project, a�d
the Title Company shall be entitled to rely on the Project Costs Itemization. The
Developer knows of no circumstances presently existing or likely to occur which would
or could be expected to result in material variation or deviation from the Project Costs
Itcmization.
(h) To the best of the Developer's kuowledge, 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 appticable notice and cure
period) of any of its obligations under any other agreement or instmment to which thc
Developec is party oi obligor.
(i) The Property is in compliance with all applicable material fede�al, state,
and loca] statutes, regulations, mles, and/or ordinances, and with all orders, deaees, or
judgnents of governmenta] authorities or courts having jurisdictioq relating to the use,
generation, manufacmre, wllectioq treatment, disposal, storage, control, removal, or
cicanup of hazardous substaoces (as that texm is de5ned in Section I3, below). In the
event any hazardous substances are present in, at, on or about the Property, the Developer
shall be responsible for removing or otherwise monitoring or remediating such huardous
substances as required by, and in full compliance with applicable law.
The repcesentations and waerarities wntained herein shall be true and coerect as of the
date hereof and as of the Closing Date.
7. Covenants of Develooer. During the Term of this Ageement, the Developer
covenants to the City as follows:
(a) The Developer and/or Oshkosh Investors shall pay for al] work performed
and materials fumished for the Project as and when due.
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(b) On or before the Completion Date, the Project shall be comploted (subject
to matters offorce mojei<re), and in all other respects be rcady for occupancy and use by
the Developer and/or Oshkosh fnvesmrs.
(c) The Developer shall conform and comply with, and will cause the Project
to be in confonnanee and compliance with, al] applicable federal, state, ]ocal and other
laws, rules, rcgulations and ordinances, including withou[ limitation, all zouing and land
division laws, rules, regulations, and ordinances, all building codes and ordinances of the
City, and all eovironmental laws, rules, regulations, and ordinanees.
(d) The Developer shall cause the Project to be constructcd in a good and
workmanlike manner and substantially in accordance with the Project Plans and will
promptly correet any defects, structural or otherwise, in any construction or deviations
from the Projeet Plans. Construction of the Project shal] be completed free of all ]iens
and encumbrances except for those liens and e�wmbranees permitted by this Ageement.
(e) The Developer shal] not, and shall not permit Oshkosh Investors tq
withou[ the prior written consent of the City (i) approve any change or modification in
the Project by change order or otherwise that would cause the Project Costs to be less
than the Minimum Project Cost, or (ii) modify or amend any agreement affecting Ihe
Project i� a manner which would cause the agreement to bc materially ineonsistent with
this Agreement.
(t) The Developer shall permit tho City and the Ciry's construction consultant
or inspector, at all reasonable times, to inspect the Projeet and all matters relating to the
devolopment thereo£ The City assumes no obligation to the Developer for the
sufficiency or adequacy of such inspections, it being acknowledged that such inspections
arc made for the sole a�d separate benefit of tho City. The fact that the City may makc
inspections shall in �o way relieve the Developer from its duty to independently ascertain
that the construction of the Project is being completed substantially in accordance with
the Project Plaris.
(g) The Developec shall pay or cause to be paid prior to delinqueney all
federal, sta[e aud local taxes in connection with the Project. The Developer shall pay
when due all operating expenses in cormectio� with the Project.
(h) The Developer shall comply with thc requirement ro provide notificatio�
of position openings under Wis. Stat. § 66.1105(6c), and, to the extent notified by the
City prior to tho date of this Agreement, with any other applicable material restriction
affecting the TIF District and with all laws, mles, regulatio�s and ordinances generally
applieable to tax inerement districts that are applieable ro the Project.
(i) The Developer shall have in effect at all timcs, al] permits, approvals and
licenses that may be required by any govemmental authority or nongovcrnmental entity
in connection with the development, constmetion, management and operation of the
Project.
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(j) Except for a mortgage in favor of Lcnder securing the Loan, the
Developer will not mortgage or otherwise place a lien or encumbrance o� the Property
withou[ firs[ ob[aining the City's consent, which consent the City shall �ot unreasonably
withhold; pwvided, that in no event shall the Ciry bc cequired to consent to a mortgage,
lien or enwmbrance which would be entitled to priority over the lien of the Mortgage
being ganted by Oshkosh Investors pursuant to the terms of the Oshkosh Investors
Development AgreemenL The CiTy hereby consents to that ceRain mortgage granted by
Oshkosh Investors to the University of Wiscoosin Oshkosh Foundation, Ine. da[ui and
recorded February 14, 2012 in Ihe Winnebago County Register of Deeds as Document
No. 1594517, which moRgage was assigned to The Oshkosh Area Community
Foundation Corporation ("OACF") by an Assignment of Mortgage dated and wcorded
February 14, 2012 in the Winnebago County Register of Deeds as Document No.
1594518; orovided, that OACF shall execute and deliver a subordination ay,recment in
favor of the City, in a form acceptable to the CiTy in the City's roaso�able discretion.
(k) The Developer, at i[s cost and expense, shall, and shall cause Oshkosh
Investors to, operate, maintain, repaic and replace (including without limitation, repai�s
and replacements of a capital �atu�e) all elements of the Project. The Developer's
maintenance and repair obligations shall include both day to day maintenance and repair
arid extraordinary mainte�anee and repair and shall include maiutenance, repair und
replacement of all elements or systems of the Projec[ as are necessary in order to
maintain the ProjecL The Developer will not defer, and will not permit Oshkosh
Investors to defer, a�y required mainte�a�ce, repair or replacement (including, without
limitation, repairs and replacements of a capital nature) of any element of the Project and
shall cstablish adequate reserves therefor.
(1) The Developer will not, without the City's consent, initiate any cha�ge in
the zoning classificatio� of all or any portion of the Property.
(m) The Developer aud Oshkosh Investors will operate the Project
substantially in accordance with the final operating pro forma submitted to the City in
conjunction with the Project Plans, and shall not inerease the amount of any management
fees paid to Developer, Oshkosh Invesrors or any third party beyond what is set forth in
the operating pro fortna without the City's co�sent.
(n) The Developer will not resign as manager of Oshkosh Investors and will
not withdraw or dissociate as a member of Oshkosh Investors.
8. Damaee; Destmetion. In the event of fire, damage, or a�y othec casualty to any
part of the Project, the Developer agrees, at its cost and expense, ro rebuild, repair and replaee, or
cause Oshkosh Investors to rebuild, repair and replace, the Project in the condition it was in
immcdiately prior to the casualty. The fair market value of the Projec[ following reconstmction
and/or repair must be greater than or equal to the fair market value of the Project immediately
prior to the casualty. The Developer shall not be relicved of its obligations to make Guaranty
Payments as such payments become due and payable under Section 12, below, as a result of fire,
condemnation or other casualty or during the period of repair or rebuilding and replacement of
the Project.
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If the Project is requircd to be rebuilt or repaired or replaced, then the Projcct shal] be
cebuilt, repaired or replaced in accorda�ce with plans and spccifications prepared by the
Developer and/or Oshkosh Investors a�d approved by the City. The Developer agrees to apply,
or cause Oshkosh Imcstors 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 ro the terms and conditions of a disbursing ageement
among the City, the Developer and the Title Compa�y, similar in form and content to thc
Disbursing Ageement entered into pursuant to Section 4, 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 anNor replaced following fire, damage or other
casualty, that shall not operate to release the Devcloper hom its liabilities and obligations under
this Agreement, including, but not limited to, its obligations to make Guararity Payments
pucsuant to Section l2, below.
9. Costs. The Developer shall each year during [he Term of this Ageement pay all
reasonable and itemized fecs, costs and expenses actually inwrred by the City, including
admi�istrative eos[s and attomeys' and co�sultants' fees, i� connection with the creation and
maintenance of, and annual reporting for, Ihe TIF District, the development of the TIF District
Project Plan, the negotiation and preparation of this A�eement and all dowments and
agreements executed i� connection therewith; provided, however, that for costs ineurred after the
first year, the annual amount of such payment shall not exceed Five Thousand and No/l00
Dollars ($5,000.00), which amount will inerease by one a�d ono-half percent Q.5%) eaeh year
during the Term. Developer shall also pay all reasonable and itemized fees, costs and expenses
actually incurred by the City, includi�g attomeys' and co�sultants' fees, in eonnection with the
enforcement of its rights against the Developer under the TIF District Project Pla� or this
Agreement, includiug without limitatioq the enforoement of such rights in any bankruptcy,
reorganization or insolvency proceeding involving the Developer.
l0. Ci[v's Right to Cure Default In case of a failuce by the Develope� to procuce or
maintain i�sura�ce, or to pay any fees, assessments, eharges or taxes arising with respect to the
Project or to comply with the terms and wnditions of this Ageement or any other document,
contract or agreement cffcc[ing the Project, aod subject [o the rights of[hc Lo�der, the City shall
have [he right, but shall not be obligated, [o effec[ such insurance or pay such fees, assessmen[s,
chazges or taxes or take such aetion as is necessazy to remedy tho failure of the Co�po�atiou to
comply with the documen[s, wntracts or agreements effecting the Projec[, and, in that event, [he
cost [hereof shall be payable by the Developer to tbe City.
ll. Real Estate Taxes and Assessments. The Developer shall ca�se Oshkosh
I�vestors to pay timely to the City generally applicable property taxes assessed and levied by the
City on [he Property under applicable proper[y tax laws, rules, rates, regulations a�d ordinances
in effect from time to time. Nothing in this Agreement shall impair any s[atutory rights of the
City with respect to the assessment, levy, priority, collectioq and/or enforcement of real estate
property taxes. In addition, the Developer agrces to cause Oshkosh Investors to pay timcly to the
City a0 special assessments that may be assessed or levied in connection with the Property u�der
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Ihe applicable special assessment laws, rules, regulations, ordinances and rates in effec[ at [he
time said special assessments are asscssed or levied.
12. Incremeat Guarantv.
(a) The Developer hereby guarantees that commenci�g in 2016, Tax
Increments received during each calendaz year will be at least equal to the dcbt service
payable by the City during such calendar year on all amoonts disbursed for or on behalf
of the ProjecL In the event that therc is an Annual Tax Increment Deficit in any given
year, [he Ciry shall notify the Developer, in writiog, that there is an Annual Tax
Increment Deficit, and the amount of the Annual Tax Increment Deficit ("Deficit
Notice"). Within thirty (30) days afrer the DeScit Notice, Developer shall pay the City
an amo�nt equal to the Annual Tax Increment Deficit(a"Guara�tv PaymenP�.
(b) Revenue Ge�eration. The Developer acknowledges that the Grant is being
provided by the City in reliance upon the future generation of general property taxes
which will generate revcnues for the City, including the rcvenues �ecessary to repay the
City's debt on all amounts disbursed for or on behalf of the Developer under this
Agreement. Duri�g the [erm of the T[F District, the Developer shall cause Oshkosh
Investors[o use, and shall assure the use by any subsequent purchaser of, the Property for
wmmercia] pu�poses sufficient at all times to avoid an Annual Tax Increment Deficit and
shall take no action which would negatively affect the value of the Property.
(c) Convevance ro Third Parties. The Developer shall not permit the sale,
transfer or conveyance the Property, any portion thereof or any improvements thereoq 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 12 to thc same extent as the Developer.
(d) The Developer's obligatio�s under this Section 12 are joint and sevecal
with those of Oshkosh Investors pursuant to the Oshkosh Investors Development
Agreement.
(e) The Developer's obligations under this Section 12 shall also be secured by
the City's right of special assessment or by any other remedy available to the City by
statate. If[he Developer fails to pay[imely any Guazanry Payment due�nder this Section
12, the City may, in additio� to all other remedies available to it in Iaw 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 ineurred costs for the payment or reimbursement of the Project Costs; (ii) agrees
that the amount of the special assessment, if levied co�sistent with this Agreement,
constimtes 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
[he Proper[y is reasonable and commensurate with the special benefits provided to the
Property; (iv) agees that the amount being assossed in accordance with this Agreement
does no[ exceed the value of the be�efits accming 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
11
69800]4_13
Council shall be sufficient to authorize the levy of special assessments i� accordance
herewith, and that no further procedural stcps need be tnken by the City; (vii) waives all
special assessmcnt notices, hearings and appeals provided by Wis. S[a[s. §66.0701 or
§66.0703; and (viii) acknowledges that the Ciry is relying on tho terms of this Agreement,
and specifically the terms of this sobsectioq that soch reliance is reasonable, and that the
City's paymen[ of its obligations ro the Developer under this Agreement will be
detrimental to the Ciry if the provisions relating to special assessments are not enforced
and that a failure to enforce such agreements would be inequitable.
13. Indemnifications. The Developer hereby indemnifies, defends and holds the City
harmless from and against all loss, liability, damage and expense, including reasonable
attomeys' fees, suffered or incurted by the City to the extent caused by the following: (a) the
failure of the Developer or its contractors, subcontractors, agents, employees, or i�vitees 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 petroleam prod�ets 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 contracrors, subcontractors and/or agents to comply with
any law, rule, regulation or ordinance or ariy release of petroleum products or hazazdous
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 partie.a for injury to or dca[h of any person on the Property; and
(� the failure of the Developar to maintain, repair or replace as needed any portio� of the
Projcct.
The tcnn"hazardous sobstances"means any flammable explosives, radioactive materials,
hazardous wastes, toxic substances, or related materials, including without limi[ation, any
substances detined as or included in the defi�ition of "hazardous substances," "hazardous
waste;' "hazardous materials," or °toxic substances° under any applicable federal or state or
local laws or regulations.
14. Insuraoce. The Developer shall maintain the following ins�rance policies issued
by ins�rers with a ra[ing of at leas[ "A-" and in a fina�cial size category of a[ lcast "X" as
established by A.M. Best Company aud licensed to do business in the State of Wisconsin: (i)
commereial general liability i�surance with limits of$1,OOQ000 per occurrenee and $S,OOQ000
in the aggregate; and (ii) statutory worker's compensation insurance; and (iv) automobile
liability i�surance with a wmbined single limit of $1,000,000. The Developer shall cause
Oshkosh Investors to maintain property insurance on the Property with coverage limits equal m
[he full replacement cost of the building and its conten[s.
Each insurance policy shall require the ins�rer to provide at least thirty (30) days pnor
written notice to the City of any material change or caneellation of sueh policy.
I5. Nondiscrimination. The Developer shall not use the Project iu any manner to
persnit discrimination or resMetion on the basis of race, creed, ethnic origin or ide�tity, wlor,
gender, religion, marital statas, age, handicap or national origin, a�d the Developer shall
12
69800]4_13
construet and opewte the Project in compliance with all laws, rules, regulations and ordinances
celating to discrimination or any of the foregoing.
16. Protler(v Tax Challenees and Exemotions. The Developer shall no[ seek [o
rcduce the assessed value of the PropeRy below an amount necessary to create the Tax
Increments set foRh on Exhibit F. In addition, the Developer shall not cause or pertnit the
Property or any portion thereof to become tax exempt unless condemned by a govemmental
entity. The Developer will cause Oshkosh Investors to place a restriction in any deed conveying
all or any poRion of the Property prohibiting any use or ownership of the PropeRy which would
cause the Property or any portion thereof to become tax exempt.
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 Guazanty
Payment or other amount due from it under this Agreement, and such failure continues
for fifteen Q 5) days after the Developer has received a written notice of default a�d such
Guaranty Payment or other amount due is not paid timely by Oshkosh Investors; or
(b) Any representation or wartanty made by the Developer or any successor in
this Ageement or any document delivered by the Developer or its saccessor pucsuant to
this Agreemcnt shall prove to have been false i� a matorial way as of the time made or
given; or
(c) The Developer or any successor shall breach or fail to substantially
perfonn timely or observe timely any of i[s 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 s�ch longer period of time as is necessazy to cure the
default as long as the Developa has commenced the cure of the default within the thirty
(30) day pedod and is diligently pursuing to cure the default and as long as the default is
cured not later tha� o�e hundred eighty (l80) days following notice thereof from the
City); or
(d) The Project is not substantially completed on or before the Completion
Date(subject [o matters of,force mojeure); or
(e) The Developer sha1L (i) become insolvent or generally not pay, o� 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 fo�
relief within the meaning of the United States Bankruptcy Code, or file a petition in
banlQUp[cy, 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 proeeeding shall remain �ndismissed for a period of
ninety (90) days or more, or the Devolopec shall file an answer to such a petition or
applicatioq admitting material allegations thereof; or (v) apply to a court for Ihe
appoinhnent of a receiver or custodian for any of its assets or properties or have a
l3
6980W4_i3
receiver or custodian appointed for any of its asse[s 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 liquida[ion of its assets; or
(� An oveut of default occurs under the Oshkosh Invesrors Development
Agreement.
18. Remedies. Upon the occurrence of any default, wi[hout further notice, demand or
action by any kind by the Ciry, the City may, at its option, pursue any one or more of the
following remedies concurrently or successively:
(a) Demand the immediate repayme�t of thc entire amount of ihe Grant; or
(b) Pursue any or all of the rigl�ts and remedies available to Ihe 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 bc 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 TIF DisMct Project Plan a�d any other covenants,
restrictions, documents or instruments goveming the TIF District, and/or �ow or hereafter
existing at law or in cquity. 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 oc further exercise thereof or the exercise of any other right or remedy.
Notwithstanding any of the focegoing authorizations, the City shall have no duty or obligation
whatsoever with respect to any of the matters so authorized.
19. No Personal Liabiliri. Under no cirwmstances shall any council member,
official, director, attomey, employee, or agent of a party have any personal liabiliry arising out of
this Agreement, and no paRy shall seek or claim any such persona] liability.
20. Citv Authorization. The execution of this Agreement by the City is authorized by
Commun Council Resolutions No. 12-290 adopted on May 22, 2012 and No. 12-509 adopted on
October 9, 2012.
2L Miscellaneous.
(a) Except as otherwise specifically set Yorth herein, the respective righ[s and
liabilities of the City and [he Developec in this Ageement aze not assignable or
delegable, i� whole or in part, without the prior written co�sent of [he other party.
Provisions of this Agreement shall irmre to the beneft of and be binding upon the
successors and assigns of the parties.
(b) No waiver, amendment, or variatio� of the terms of this Ageement 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.
14
ssaoo�a_ia
(c) All material applicable agreements, represe�taHons, warrantics, covenants,
liabilities and obligations made i� this Agreement and in any document delivered
pursua�[[o [his A�eement shall [emain effective during the Term of this Ag�eement.
(d) All communications or notices required or permitted by this Agreement
shall be in writing and shall be deemed to havo 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, postagc piepaid, or with a nationally recop�ized
ovemight commercia] carrier that wil] certify as to Ihe date and time of delivery, air bill
piepaid, or (iii) upon transmission if by facsimile, any such communication o� 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 Citv: City of Oshkash
City Attomey's Officc
215 Church Avenue
Post Office Box 1130
Oshkosh, WI, 54903-1130
Attn: City Attomey
Facsimile Na (920) 236-5106
With a coov to: Godfrey&Kahn, S.C.
]00 West Iawrence Street
Appleron, WI54911
Attn: Michael J. Lokensgard
Facsimile: (920) 830-3530
If to the Develoner: Oshkosh Investors, LLC
O�e North Main Street
Post Office Box 1203
Oshkosh, W154903-1203
Attn: Rich Batley
Facsimile: (920)
With a coov to: Reff, Baivier, Bertningham & Lim, SC.
217 Ceape Avenue
Post Office Box 1190
Oshkosh, WI54903-1190
Attn: Russell J. Reff
Facsimile: (920) 231-0035
(e) This Agreemcnt and the documents executcd p�suant to this Agreement
contain Ihe 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 exeeuted in connection with
this AgreemenL This Agreement and the documents executed in connection herewith
IS
69800]0 13
supeisede all prior negotiations, agreements and undertakings between the parties with
respect to the subject matten c�rcof.
(� This Agreeme�t is intended solely for[he benefit of[he Developer and [he
City, and no third par[y (other than successors and pertnitted assigns) shall have any
rights or interest in any provisio� of this Agreement, or as a result of any action or
inaction of the City i� conneetion therewith. Without limiting the foregoing, no
approvals given pursuant to this Ageement by the Developer or the City, or any person
acting on bchalf 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 govemed by, and construed and i�torpreted in
accordance with, the laws of the State of Wisconsin applicable [o contracts made and
wholly performed within the State.
(h) This Agreement may be executed in several counterpaRs, each of which
shall be decmed an original, but s�ch eounterparts shall rogether constitute b�t one in the
same AgreemenL Facsimile signatures shall be deemed original sig�atures for all
purposes of this Agreement.
(i) Any provisio� of this A�eement which is prohibited or unenforceable in
anyjurisdic[ion shall, as to such jurisdietion, be in effeet to the extent of such prohibition
or enforceability without invalidating the remai�ing provisions of this Agreement in such
jurisdiction or affecting the validity oc e�foreement of any provision in a�y other
jurisdiction.
(j) Nothing contained i� this Agreement or any o[her documents executed
pursuant [o this Agreement shall be deemed or construed as creating a partnership or joint
venture between the City and the Developer or betwecn the City and any other persoq or
cause the City to be respo�sible in auy 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, wacrants and agees,
for itself and its successors and assigns, not to make any assertion inconsistent with its
ack�owledgement or with the acknowledgement and ageement con[ained in the
preeeding sentence in the event of any action, suit or proceeding, at law or in equiry, 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 aud its successors and permitted assigns, tha[ is inconsisron[ wi[h its
acknowledgement and agreement contained in Ihe preceding sentence.
(k) Time is of the essence as to each and every obligation or agreement
contained in this Agreement.
(I) If any paRy is delayed or preventcd from timely performing any act
required under this Agrecment other than the payment of money, by reason of fire,
earthquake, war, terronst act, flood, riot, sMkes, labor disputes or shortages, govemment
restrictions, judicial order, public emergency, or other causes beyond the reasonable
16
ssaao�a_i3
conho] of the party obligated to perfortn, the performance of such act shall be exwsed 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 dclay.
(m) No disbursement of any portion of the Grant or payment by the City under
the Oshkosh Investors Devclopment A�,Reement shall preclude the City from declaring a
dcfault hereunder and pursuing its remedies hercunder i� the event the Developer fails to
fulfill its obligations hereunder or cure any such default.
(n) A memorandum of this Agreement may be recardcd i� the office of the
Register of Deeds of Winnebago Cou�ty, Wisconsin, it being �nderstood by the parties
that until Expi�ation Da[e, [his Agreement will run with the land aud will be binding upon
the Property. This Agreement inures to the benefit of the City and its successors and
assigns.
(o) The headings to this Agreement are for referonce only and aze not
intended to modify any of the terms and conditions of this Agreement.
(p) Nothing contained in this Agreement is intended to or has the effect of
releasing 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 Agrecment.
(q) This Ab�recment is the product of negotiation be[ween the parties hereto
and no term, covenant or provision herein or the failure to include a tertn, cove�ant or
provision shall be construed against any party hereto solely on Ihe basis that one party or
the other drafted this Agreement or any term, covenant or condition contained herein.
(r) Upon mutual conse�t of the parties to this Ageement, whieh consent any
party can withhold in its sole discretion, the parties can agree to submit disputes arising
under this Agreement to altemative dispute resolution.
(s) EACH PARTY TO THIS AGREEMENT HEREBY WANES TRIAL BY
1URY 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.
(t) AII amounts not paid when due liereunder shall bear interest at the rate of
twelvo percent (I2%).
22. Other Aonrovals. In addition to any approvals required under this Agceemcnt, the
Developer shall be required to obtain all approvals, consents, and licenses as may be required by
any govemmental oc non-govemmental authority i� connection with the Project, ineluding
without limitation, all building permits, Project Plan approvals and zoning approvals. The
Developer's compliance with the terms of this Agreement shall �ot ielieve the Developer from
complying with all applicable federal, state and ]ocal laws, rules, regulations and ordinances in
connection with the Project and to the extent any govommental or non-govemmental e�tity
imposes different or more restrictive conditions on the Developer or the Project, compliance by
17
69800I4_13
the Devcloper with the terms of this Ageement shall not relicvc the Developer from complying
with such different or more restrictive conditions. Likewise, any less restrictive conditions
imposed on the Devcloper or the Project by any govemmen[al or non-governmental authority
shall not relieve the Developer or the Project from complyiog with all of [he [erms and
conditions of Ihis Agreement.
[SIGNATURE PAGE FOLLOWS]
18
69800�4_13
IN WITNESS WHEREOF, the parties have executed this Agreement as of the datc first
above written.
CITY OF OSHKOSH, WISCONSIN
sY: �/`����-u�
ark A. Rohloff
Its: City Ma�ager
By: ) � � �
Pamela R. Ubdg
Its: City Clerk
Approve s to form: �
niv.
m�A. Lor on
Its: City Attomey
I hereby cer[ify that the necessary provisions have been made to pay the liability which
will accrue under[his Agreement. �
Peg�y S c�o nan�cto�`�
STATE OF WISCONSIN )
) SS
COUNTYOF WINNEBAGO )
!�
Pecsonally came before me this �tday of�, 2012, the above-�amed 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 forcgoing dowment and acknowledged
[he samc.
i ii � ` ,
� � /" �� 1 �� iii� N � ,�,�;
*�_ r ^ ��� N '�
NotazyPublic, 5tateof ',t!% �(r.37-Si/J
My commission: � ,��1/- )3
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAUE]
19
s9eoa�a_ia
OI MANAGEMENT CORPORATION
B
Jo Pfeffer
Its: Pr �dent
iA
By: L
A ur H. Ra[hj ❑
❑s: Seorelary
STATHOFWISCONSIN )
) SS
COUNTY OF WINNEBAGO )
Personall came bcforc mc this �
y Z2.�` day of ��('y2012, the above-named John
Pfeffedc and Arthur H. Rathjeq ro me knuwn to be [he Presiden[ aod Secre[ary of 0]
Managemen[ Corporation and [he persous wh executed [he foregoing document and
acknowledged the same�"� � � '•.
' '�5E�1 J.I p�,�;
: ¢�:`NpTARY�'�. _ . � � �I
[ —'— ' Notary Publiq S e oC� �lU IS('UV151YI
- N�'�. F'UC�-��-' _ � Mywmmission: IS DIYY�IG(YIPYIr
'. T ..
•�q�. �...._...������ -
• F OF V�.".�.-�
20
fi9800]4 13
Exhibit A
Property Legal Descrip[ion
Lot Three (3) of CERTIFIED SORVEY MAP NO. 1197 filed in Volume I of Certified Survey
Maps o� Page 1197 as Document No. 602518; being part of Lots One(1) through Eleven (L]) in
Moore's Subdivision, in the Ficst Ward, City of Oshkosh, Winnebago County, Wisconsin,
excepting therefrom [hat portion thereof heretofore conveyed to the City of Oshkosh for
riverwalk purposes by Deed recordcd in Document No. 1612548.
TaxID Number0100400000
sseoo�a_ia
Exhibit B
Form of Disbursing Agreement
�attached�
69800]4_13
DEVELOPMENT ASSISTANCE GRANT ESCROW ACREEMENT
ESCROW AGREEMENT NO:
DATE
TO: Schmitt Title, LLC, 8scrow Agent:
Pursuant to a Development Agreement dated Oc[ober , 2012 by and between the
Ciry of Oshkosh, Wisconsin (the °C�°) and OI Management Co�poration (the "Develoner")
(the"Develoomeut A�eemenP'), the Ciry will deposit $2,OOQ000.00 represenfing the amount of
a development assistance grant (the "Granf') being provided to Developer by the City. The
Development Agreement pertains to property wmmonly known as:
One Nor[h Main Street, in the City of Oshkosh, Winnebago County, Wisco�si�
(the"ProucRV").
Hoffmann, LLC is the General Contractor hired by Developer to remodcl, repair,
rehabilitate and construct the hotel located on the P�operty(the"Proioct°).
The Development Agreement requires the Developer or i[s affiliate, Oshkosh Investors,
LLC to conhibute at least $3,SOQ000 to the Project (the "8 u�itv Conhibution"). Developer
and/or Oshkosh Investors is also obtainiug a loan in an amount mt exceeding $7,500,000 Qhe
"Load'). The Equity Contrib�tioq Loan and Gra�t are to be deposited to an escrow account (the
"AccounP') to bc held with Escrow Agent. Prior to the City depositing the Orant fu�ds in the
Accou�t, the Developer shall have provided you with evidence reasonably satisfactory to the
City showiog the amounts spent to date on Project Costs (as that term is defined in thc
Development Agreement), and shall have deposited the balance of the Equity Contributio� and
Loan proceeds in the Account.
You are authorized and directed to disburse the Grant funds deposited hereunder pursuant
to statements of amounts due approved by the Developer and the City in accordance with the
tenns of this Ag�cement. All disbursements of Grant furids are to be made in accordance with
the terms and conditions hereinafter set forth.
I. Prior to the first disbursement of Grant funds hereunder, the Escrow Agent shall be
fumished:
(a) An approval by the City of the conditions of title to the Property described
above;
xsnzo�a x
(b) A sworn Developer's statemen[, in a form rcasonably acceptable [o [he
City, confirming that the entire Equiry Contribution a�d all Loan proceeds (totali�g at
least $1 I,000,000 in the aggregate) have been spcn[on Project Costs.
(c) A swom Developer's statement, in a form reaso�ably acceptable to the
Citg disclosing the various contracts entered into by the Developer and setting forth the
names of the contractors, their addresses, work or materials to be fumished, amounts of
the contracts, amounts paid to date, amounts of wrrent paymcnts and balances due; and
(d) A swom Contracror's stateme�t, i� a form reasonabty acceptable to the
City, setting forth in detail all co�tractors and material suppliers with whom it has
contracted, their addresses, work or materials ro be fumished, amounts of the contracts,
amount paid to date, amounts of cu�rent payments and balances due.
2. Prior to each disbursement of funds hereunder, the Escrow Agent shall be
fumished:
(a) A swom Contractor's stateme�t setting forth all coutractors and
materialmen with whom it has contracted, amounts of contracts, amounts paid to date,
amounts of current payments and balance due;
(b) A written approval by the Developer of the requested disbursement. If
any new contracts have been let by Ihe Developer and not disdosed to Escrow Agent,
upon the request of the Escrow Agent, Developer shall furnish a curren[ swom
Developer's statement in the fonn required 1(c), above;
(c) A written approval by the City of the requested disb�rsement;
(d) A report or a certification by the General Contractor ceRifying that work
has been completed and materials are in place as indicated by the request for payme�t;
(e) Sufficient funds to cover the requested disbursements and to pay for extras
or change orders for which waivers have not been deposited and for which funds have not
previously been deposited;
(� Suffieient funds to cover unpaid escrow eharges;
(g) Statements, waivers, affidavits, supporting waivers and releases of lie�s,
as required by and satisfactory to Escrow Agent; and
(h) All required documentation for the fina] diaw request must be submitted
to Escrow Agent prior to any disbursement of the final draw.
3. All disbursements for construction purposes will be made by the Escrow Agent as
directed in the applicable request for paymenc In the event that the General Contractor or any
subcontractor jointly authorize the Escrow Agent to pay any funds due onc to the other, the
tl562023 2
Escrow Agen[ may wmply with such au[hodzation. However, it is [he intentioo of the parties
narned herein and signa[ory here[o that no person not a party signatory to [his Agccment shall
have [he right to look to the Escrow Agent for any disbursement hereunder under a third party
beneficiary [heory or otherwise and that the Esaow Agent owes no duty [o any such third party
to make any disbursement.
4. The funetio�s and duties assumed by Escrow Agent include only those described in
this Ageemcnt, and the Escrow Agent is not obligated to act except in accordance with the tcnns
and conditions of this Agreement. Escrow Agent does not insure that the Project will be
completed, nor does it insure that the Project, when completed, will be in accordance with plans
and specification, nor that sufficient funds will be availablc for completion.
5. All charges for Escrow AgenYs scrvices hereunder are to the responsibility of
Devcloper.
6. Genera] Conditions:
(a) At any time prior to its commencement of disbursement of funds
hereunder, the Esaow Agent reserves the right to decline commencement of
disbursements of funds, whereupon Escrow Agent shall retum to the City any documents
in its possessio� relating to such loan and the Crant funds received by it.
Commencement of disbursement makes this Agreement effectivc as to all funds received
and disbursed on the Project.
(b) Escrow Agent has no liability for ]oss caused by un error in the
certification furnished it hereunder as to work in place.
(c) Escrow Agent shall not be responsible for any loss of documents or funds
while such documents or funds are not in custody. Documents or funds deposited in thc
United States mai] shall not be construed as being in custody of Escrow Agent.
(d) In the event that a default is declared by the City under the Development
Ag�eement, Escrow Agent shall immediately discontinue further disbarsements undc�
this Agreement.
(e) The undersigned acknowledge and agree that no interest will awrue to the
undersigned on any fu�ds held in escrow by the Escrow Agent pursuant to this
Agrecment and that, in addition to the fees and charges payable to the Escrow Agent for
services, the Eserow Agent may �eceive ancillazy benefits from the use of the funds held
in escrow.
(� In the event of a easualry involving the Projcet, Ihe Escrow Agent may
eontinuo to disburse Grant funds only if Developer decides to reconstruct the Project and
all insurance proceeds are disbursed prior to any disbursement of the balance of the Grant
funds.
8562V29 2
IN WITNESS WHEREOF, the parties have exewted this Developmcnt Assistance Grant
Escrow Agreement as of the day of October, 2012.
CITY:
CITY OF OSHKOSH, W ISCONSIN
By:
Mark A. Rohloff, City Manager
By:
Pamela R. Ubrig City Clerk
Approved as [o foan:
By:
Lynu A. Lorenson, City Attomey
DEVELOPER:
OI MANAGEMENT CORPORATION
By:
ESCROW AGLNT:
SCHMITT TITLE, LLC
By:
asazoz3 z
GENERALCONTRACTOR'SACKNOWLEDGEMENT
The undersigned a�ees that this Ag�reement shall not be construed as, nor is it the intent
of any of the parties herero to give a�y benefits, rights, privileges, actions or remedics to any
person, finn or corporation other than Schmitt Title, LLC, the City of Oshkosh, Wisconsin and
OI Management Corporation under a third party beneficiary theory or otherwise.
The undersigned agrees that the improvement refened ro in the Escrow Agreement will
be constructed and completed in strict accordance with the plans and specifications and the
building eontracL The undersigned also conwrs in the abovic escrow instructions signed by the
Developei and the City or their representatives.
HOFFMANN, LLC
By:
8562W3 2
Exhibit C
Form of Parking Agreement
�attachedJ
69800]<_13
Lease and Parking Agreement
Recitals
This Agreement is entered into by and between the City of Oshkosh, a municipal
corporation, with its principal offices located at 215 Church Avenue, City of Oshkosh,
Winnebago Counry, Wisconsin and Oshkosh Investors, LLC, a Limited Liability
Corporation, with its principal offices located at 1 North Main Street, Oshkosh,
Wisconsin.
The City is a party to a certain Ground Lease dated August 26, 1985 a memorandum of
which was recorded in the Office of the Winnebago County Register of Deeds on May
13, 1986 as document number 651593, pursuant to which Park Plaza of Oshkosh, Inc.,
leased to the City the real property legally described in Exhibit "A" attached hereto (the
"Property'). Park Plaza of Oshkosh Inc.'s interest as lessor under said Ground Lease is
currently held by City Center Associates, LLC.
Oshkosh Investors, LLC is the successor in interest to the original owners of the hotel
structure located at One North Main Street in the City of Oshkosh (The "Hotel"). By a
series of agreements, the original owner of the hotel structure constructed a Parking
Structure adjacent to the Hotel on the Property (the "Parking Structure") and the original
hotel owner and subsequent hotel owners entered into parking agreements with the City
of Oshkosh related to the operation and maintenance of the Parking Structure. The first
of these agreements was dated December 27, 1984 between the City of Oshkosh and
the Oshkosh Centre Hotel Venture. This Agreement was subsequently amended and
assigned by documents dated August 28, 1995; October 16, 1987; November 19, 1987;
and September 1, 1998.
It is the intention of the parties that this Agreement terminate all prior agreements and
understandings related to the operation and maintenance of the Parking Structure
(other than the Ground Lease) and that this Agreement shall contain the entire
agreement and understanding of the parties with respect to the operation and
maintenance of the Parking Struc[ure.
It is hereby agreed by and between the parties to thls Agreement as follows:
1. Leased ProAertv. The City shall lease from Oshkosh Investors, LLC the Parking
Structure, including the elevator and adjacent stainvells, located on the Property
and operate and maintain the Parking Structure pursuant to the terms of this
Agreement. The Parking Structure is a 125 foot by 225 foot structure consisting
of an on-grade asphalt lot and two (2) supported parking levels providing
approximately 192 parking spaces.
2. Public Facilitv/ Use bv Hote/ Guests. Pursuant to the Ground Lease for the
Property, the Parking Structure shall be operated as a public facility available for
the use of guests of the Hotel. In addition to this public use, the parties to this
Agreement wish to provide for the use of the Parking Structure by guests of the
Hotel and for maintenance and operation of the Parking Structure by the City for
the term of this Agreement or until the Agreement is terminated as provided
herein, as contemplated in the original Ground Lease and Parking Agreement.
3. Termination o! Prior Aareements This Agreement terminates all prior
agreements and understandings (other than the Ground Lease) related ro the
operation and maintenance of the Parking Structure, whether enumerated herein
or not, whether oral or written.
4. Responsibilitv for Ooeration and Maintenance of Parkinq Structure.
Citv ResAOnsibilitv. City shall be responsible at City's sole expense for all
maintenance and repairs of the Parking Struc[ure including the elevator and
adjacent stairwells. The responsibility for operation and maintenance shall
include, but no[ be limited to, the payment of all reasonable and necessary
expenses for repair and maintenance of the Parking Structure or any fixtures
appurtenant thereto; repair and replacement of any lights or other utilities
within or attached to the Parking Structure; snow removal; graffiti removal;
pavement repair and marking and other necessary repair and maintenance.
The City shall maintain [he mechanical opera[ion of the elevators. The City
shall comply with all local, state and federal ordinances, laws, rules and
regulations with regard to the operation and maintenance of the Parking
Structure.
Oshkosh /nvestors. LLC Resoonsibilitv. Oshkosh Investors, LLC shall be
responsible for routine cleaning/care and upkeep of the parking structure,
which shall generally include: keeping the Parking Structure, including
stainvells, clean and clear of refuse and obstructions, including dirt around
drains; window cleaning; cleaning of other interior and exterior surtaces
(including utilizing a power-washing method to remove all accumulated dirt,
oil, grease and grime, spider [reatment); and disposing of all garbage, trash
and rubbish as necessary.
5. Sions. The location and design of all signs to be placed on or adjacent to the
Parking Structure, with regard to the Parking Structure, shall be subject to prior
review by Oshkosh Investors, LLC. All signs shall be repaired and maintained in
such a condition as to keep them at all times in a neat and attractive condition,
consistent with any signs displayed on or adjaceM to the Hotel.
6. Utilitv Exnenses. The City shall pay for all Utility Expenses for the Parking
Structure.
7. Taxes and Assessments. City shall be responsible for and pay all real or
personal property taxes and special assessments that may be levied upon the
Parking Structure.
8. Insurance. City shall, during the en[ire term hereof, keep in full force and effec[ a
policy of general liability insurance with respect to the Premises. City shall
provide evidence of insurance coverage in the form of a certificate of insurance
[o Oshkosh Investors, LLC prior to the Commencement Date of this Agreement
and at such other times as may be reasonably requested. Such insurance may
be furnished under any blanket policy or under a separate policy.
City agrees to carry, at its expense, insurance against fire, vandalism, malicious
mischief, and such other hazards as are from time to time included in a standard
extended coverage endorsement, insuring the Premises in an amount equal to
the full replacement value of the Premises.
9. Damaae or Destruction. If, at any time while this Agreement or any extension or
renewal hereof is in effect, the Parking Structure or any part thereof shall be
damaged or destroyed by fire or o[her casualty of any kind or nature, or razed,
City, at its sole cost and expense and whether or not the insurance proceeds, if
any, shall be sufficient for the purpose, shall proceed with reasonable diligence to
repair, al[er, restore, replace or rebuild the Parking Structure as nearly as
possible to its value, condition, architectural character, and utility immediately
prior to such damage or destruction, subject to such changes or al[eration as City
may elect to make, provided such changes or alterations do not diminish the
amount and convenience of parking available hereunder to the Ho[el or the
architectural charecter of the Parking Structure. Under no circumstances shall
Oshkosh Investors, LLC be required to contribute to the cost of such rebuilding or
restoration or alteration. During the time, if any, that the premises may be
unusable by the Hotel due to such casualty or restoration, City shall endeavor to
provide alternate parking spaces for the use of the Hotel's guests.
fO.Fees. Oshkosh Investors, LLC shall on a monthly basis pay to the Ciry $2 per
guest room night each month for the period from reopening of the hotel in 2013
through December 31, 2015. For purposes of determining this fee, the fee shall
be collected on a per room basis for each night a room or suite is rented. For the
period from January 1, 2016 through December 31, 2022, Oshkosh Investors,
LLC shall on a monthly basis pay ro the City $3 per guest room night each
month. Fees shall be paid on the fifteenth day of each month for the
preceding month.
Fees collected shall be accounted for separately and shall be used only for
expenses attributable to maintenance, repair and improvement of the Parking
Structure.
Prior to December 31, 2022 or the end of any successive time period established
hereunder, the City shall undertake a study of the then current parking structure
maintenance costs and needs and the parties shall meet to review the fee
structure or to provide another means for payment of the City's costs for
maintenance of the parking structure. The parties shall then either enter into an
amendment to this agreement providing for payment for the anticipated costs
related to further maintenance, repair or improvement of the Parking Structure for
additional [ime periods. In the event the parties are unable to reach an
agreement Oshkosh Investors, LLC may assume the responsibilities of the City
under the Ground Lease or the parties shall agree upon an arbitrator who shall
determine the maintenance, repair and improvement responsibilities and
anticipated costs and method for payment thereof.
Any remaining fees collected but not spent for the purpose of maintenance,
repair or improvement of the Parking Structure at the end of the initial or any
agreed upon subsequent time period shall be applied to reduce the future
anticipated costs for the neut subsequent period or transferred to Oshkosh
Investors, LLC if they take on the responsibilities of the City under the Ground
Lease.
Except as provided above, any remaining fees at the termination of this
Agreement shall be the property of the City of Oshkosh without restriction of use.
11. Term. The term of this Agreement shall coincide with the term of the original
Ground Lease and shall terminate on December 31, 2059. Upon termination the
Parking Structure shall become the property of the City of Oshkosh and Oshkosh
Investors, LLC shall no longer have any right, title or interest in the Parking
Structure.
12.Default / Termination. In the event that either party hereto shall default in the
performance of any of the agreements, conditions, covenants, or terms hereof,
the other party may, after ten (10) days written notice to such party, cure such
default on the account of the other, provided however that if a breach cannot
reasonably be cured within a ten (10) day period the party required to cure the
breach shall not be in default if the party commences the process for curing the
breach within the ten (10) day period and diligently pursues the cure to its
conclusion. Any amount paid or any expense or liability incurred by a party in
curing the default of another party shall be added to or subtracted from Ihe
obligations of the Hotel hereunder as appropriate. In the event that the Hotel
performs such obligations of the City and the performance thereof costs more
than the amount due or to become due hereunder in [he following month, City
shall pay such additional amount to the Hotel upon written demand therefor.
In lieu of or in addition to curing such default, and in the event such default shall
continue for a period of 30 days after written notice thereof by the other party, the
nondefaulting party shall be en[itled to bring an action for specific pertormance
hereof or for damages and shall have any and all other rights or relief which the
nondefaulting party may be entitled to by law pursuant to this Agreement.
Further, if such default shall continue for a period of 30 days after written notice,
the nondefaulting party may forthwith terminate this Agreement and all of the
terms and conditions hereunder upon written notice to the defaulting party,
provided that such default is substantial and material to this Agreement.
13.Assipnment. This Agreement may not be assigned or transferred by Oshkosh
Investors, LLC other than in connection with a sale of the Hotel. Upon a sale of
the Hotel, [his Agreement shall be assigned to the successor owner. In such
event, the transferee of the interest of Oshkosh Investors, LLC or its assignee
shall be required to abide by and pertorm all of the covenants and obligations of
Oshkosh Investors, LLC hereunder and transferor shall thereby be relieved of
further liability hereunder. City's interest under this Parking Agreement may be
assigned, transferred or conveyed subject to the terms of this Agreement, but in
such event the transferee, assignee, or grantee of the City shall be required to
en[er into an agreement with Oshkosh Investors, LLC or its assignee contracting
to be governed by all relevant provisions of this Agreement and to pertorm all of
the covenants and obligations of City hereunder. Assignment of the City's
interest shall be subject to consent of the Oshkosh Investors, L�C, which consent
shall not be unreasonably withheld.
14.Notices. Any no[ices required by this Agreement shall be in writing and
delivered via certifed mail, retum receipt requested, as follows. Changes
to these addresses shall be in writing. In addition to formal notification,
both parties agree to take reasonable measures to keep the other party
informed of issues or questions regarding the Property.
FOR OSHKOSH INVESTORS, LLC:
Oshkosh Investors, LLC
c/o Richard Batley
1 North Main Street
Oshkosh, W154901
FOR THE CITY:
City of Oshkosh
c/o City Manager
P.O. Box 1130
Oshkosh, W154903-1130
15.Entire Aoreement. This writing constitutes Ihe entire agreement between the
parties hereto, with regard to the subject matter of this Agreement, and it is
intended that this Agreement integrates and incorporates all previous and
concurzent negotiations and agreements between the parties, and may not be
amended or altered or modified in any manner except in writing signed by both
parties.
16.Aonlicable Law. This Agreement shall be governed by and interpreted under the
laws of the State of Wisconsin.
17.Severabilitv. If any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable or void or contrary to public policy or
to law, such provisions shall be ineffective only to [he extent of such invalidity or
unenforceability, without invalidating the remainder of this Agreement or any
portion thereof which is not specifically affected by the determination of such
court.
18. Waiver. No delay or omission by any party to this Agreement in exercising any
right or power arising out of any defaWt under any of the terms or conditions of
this Agreement shall be construed as a waiver of the right or power. A waiver by
a party of any of the obligations of the other party shall not be construed to be a
waiver of any breach of any other terms or conditions of this Agreement.
19.Invaliditv. If any term or condition of this Agreement, or the application of this
Agreement to any person or circumstance, shall be invalid or unenforceable, the
remainder of this Agreement, or the application of the term or condition to
persons or circumstances other than those to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and condition shall
be valid and enforceable to the fullest extent permitted by law.
20.No Third Partv Beneficiarv The terms of this Agreement are for the benefit of
the two parties identified, and it is not the intention of either the Grantor or
Grantee that other parties shall acquire any rights to enforce or benefit from
[hrough this Agreement.
21.Authoritv. The Grantee affirms that all necessary boards and elected officials
have approved the acceptance of this Agreement, and that the undersigned have
the authority to sign Ihis Agreement on behalf of the Grantee. Grantor affirtns
that it has Ihe authoriry without limitation to enter into this Agreement. The
undersigned assert and affirm that they have the authority without limitation to
enter into this Agreement on behalf of the Grantor.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing Agreement
on the day and year first set forth above.
CITY OF OSHKOSH, WISCONSIN
Date: By:
Mark A. Rohloff, City Manager
Date: By:
Pamela R. Ubrig, City Clerk
Approved astoform:
Date:
Lynn A. Lorenson, City Attorney
OSHKOSHINVESTORS, LLC
By: UW-OSHKOSH FOUNDATION
HOTEL PROJECT, LLC, Manager
Date: By:
Arthur H. Rathjen
OSHKOSH HOTEL VENTURE, LLC,
Manager
Date: gy:
John Pfefferle
Acknowledgement of City Center Associates, LLC
The undersigned acknowledges and agrees that it is the current lessor under the
Ground Lease, that all references to the "Parking AgreemenY' contained in the Ground
Lease shall be deemed to refer to the foregoing Lease and Parking Agreement, and that
the prior Parking Agreement, as amended, has been terminated and is of no further
force or effect. The Ground Lease shall be modified to the extent necessary to be
consistent with the foregoing Agreement.
Dated this_ day of , 2012.
CITY CENTER ASSOCIATES, LLC
By:
Its:
Exhibit D
Legal Description of Riverwalk Parcel
That part of Lot Thcee (3) of Certified Survey Map No. I 197 filed i� Volume 1 of Certified
Survey Maps on Page I 197 as Docume�t No. 602518; being a part of Lots One Q) through
Eleven (11) in Moore's Subdivision, in the First Ward, in thc City of Oshkosh, Winnebago
County, Wisconsiq described as follows:
Beginning at the southwest comer of said Lot 3, that also being the southeast comer of "City
Ccnter", a Wisconsin Condominium and a point on the northedy U.S. Harbor Li�e of the Fox
River; thence N OS°54"2T E, 3723 feet along the west line of said Lot 3; thence S 10°4T20" E,
9.06 feet; thence S 53°54'04" E, 8421 feeT, thence N 36°OY56"E, 1.60 feet; thenec S 61°20'S6°
E, 4.28 feet; thence S 21°11'31" W, L50 feet; thence S 68°48'29" E, 123.19 feet; the�ce N
55°2P48° E, 827 feet; thence N 00°27'46" W, 2298 feet to the sou[heast comer of an existing
masonry building; [hence N 00°2T46" W, 10.03 feet along [he face of said existing maso�ry
building; thence N 89°50'23" E, 894 feet to the east line of said Lot 3 and thc west right-of-way
of North Main Sheet; thence S 00°09'37" E, 46.17 fcet along the east line of said Lot 3 and the
west right-of-way of North Main Street to the southeast comer of said Lot 3 a�d a point on the
U.S. Harbor Li�e; Ihence N 69°42'36" W, 221.69 feet alo�g the U.S. Harbor Line and Ihe south
line of said Lot 3 to the Point of Beginning.
Property Address: .52 acres of 1 N. Main Street Oshkosh, W I 54901
Tax Parcel Number: PART OF 901-0040
6980094_13
Exhibit E
Oshkosh Investors Developme�t Agreemen[
�attached�
69800]4_13
DEVELOPMENTAGREEMENT
This Development Ageement (the "AereemenP') is made as of Ihe day of October,
2012 by and between the CITY OF OSHKOSH, WISCONSIN, a Wisconsin municipal
corporation (the "Citv") and OSHKOSH INVESTORS, LLC, a Wisconsin limited liability
compa�y(the"Develooer").
RECITALS
A. The Developer has acquired a 176 room hotel property located at O�e Nor[h Main
Street in the City of Oshkosh, Wisconsin, which property is more pazticularly described on
Exhibit A attached hereto (the "Prooertv").
B. The Developer and OI MANAGEMENT CORPORATION, a Wisconsin
corporation and the Manager of Developer("OI Coen"')plans to remodel, repair, rehabilitate a�d
reconstruct the hotel located on the Proper[y into a mid-to upper price full scrvice hotel with
banquet f'acili[ies and convention serviee.
C. Pursuant to Wis. Stats. §66.1105 (the "Tax Increment Iaw"), the Ciry may
exercise all powers necessary and convenient ro (i) carry out the purposes of the Tax I�crement
Law, (ii) cause eertain projeet plans to be prepared, (iii) implement the provisions and effectuate
the puiposes of said project plans, and (iv) finance developme�t through the use of tax
incremental financing.
D. The City has (i) ereated Taac I�crement District No. 25 (City Center Hotel
Rehabilitation) (as amended from time m time, the "TIF DisMcC'), and (ii) approved a project
plan for the redevelopment of the TIF Distdct (as amended from time to time the "TIF District
Proiect Plan").
E. The Property is located within the TIF District.
F. The Developer desires to own and operate the Property in accordance with the
provisions of this Agreement.
G. The City desires to e�courage economic development, expand the City's tax base,
and create new jobs within the City and within the TIF Dist�ct.
H. As an inducement to the Developer to undertake the Projec[ and in order to
aehieve the objeetives of the TIF District, (i) the City may undertake certain public
improvements, and (ii) the City shal] provide financial assistance to thc Developer, all in
accordance with the provisions of this Agecment.
I. The City (i) believes the Project will fuRher the goals of the TIF District by
increasing the value of the Property for property tax purposes, providing a valuable service to the
community and creating local employment opportunities, a�d (ii) expects that the anticipated tax
N55926] 4
increment to be produced by the Project will be adequate to recover the Project Costs (as defined
below) within the ]ife of the TIF District.
J. The Ciry finds it to be in the public interest to utilize tax ineremental &naneing to
assist the Developer to undertake the Project, consistent with the terms and conditio�s of this
Agreement.
K. Furids used to provide the Developer and OI Cocp. with the tax inaemental
financing for the Project Costs (the "TIF Funds°) shall be raised (i) by City boaowing, and/or
(ii) from tax income generated in tk�e TIF District.
L. Tho City and Developer agree that but for the City's willingness to provide
development assistance for the Project, the Project would not take placc in the C�ity.
M. The City finds that construction of the Project, and ful&]]ment of the terms and
conditions of this Development Agreement are in the vital and best interest of the City and its
residents and Polfil] a public purpose in accordance with state law.
NOW THEREFORE, in consideration of the foregoing recitals that are inco�porated
hereto and made a part of this Agreement, the promises, covenants and ageements contained in
this Agreement a�d other good and valuable co�sideration, the receipt and su�ciency of which
are acknowledged, the Developer and the City promise, covenant a�d agree as follows:
L DeSnitions. As used in this Agreement, the following tenns shall have the
following meanings:
(a) "Annual Tax Increment DeficiP' means the shortfall betwecn (i) Tax
Increments received by the City during any calendaz year, and (ii) the debt service
payable by the City during such calendu yeaz on all amounts disbursed under the OI
Development Agreeme�[ (as that [eem is defined below) for o� on behalf of the Project,
nlus those costs payable to the City pursuant to Sec[ion 8 of this Ageement and Section 9
of the OI Development Agreemen[ for such calendar year.
(b) "Annual TaY Increment Surolus" means the exten[ to which (i) Tas
Increme�ts received by the City in auy calendaz year exceed (ii) the debt service payable
by the City during such calendar year on all amounts disbursed under [he OI
Development Agreement for or on behalf the Project, lus those cos[s payable to the City
pursuan[to Sec[ion 8 of this Ageement and Sec[ion 9 of the OI Development Ageement
for such calendar year.
(c) "Citv" means the City of Oshkosh, Wisconsin, a Wisconsin municipal
corporatioq its successors and assigns.
(d) "Citv Cootribution" means payments provided by the City to the
Developer from future Tax Increments in an amount not ro exceed One Million and
No/]00 Dollazs ($1,000.000.00).
2
R559�fi) 0
(e) "Completion Date"mea�s June 30,2013.
(� "Develoner"means Oshkosh Investors, LLC, a Wisconsin limited liebility
company, its successors and assigns.
(g) "Default° menns the occ�rrence of any one or more of the events
described in Section l6, below.
(h) `Bxoiration Date" mearis the eazliest to occur of(i) the te�mination of the
TIF Dishict under Wis. S[aL §66.1 I05(7), or (ii) the termi�ation of the OI Developme�t
Agrcement as a result of a default by OI Corp. under the terms of the OI Development
Agreement.
(i) "Guarantd' means the DevelopePs guaranty of increment revenuo to be
received by the City, as more speeifically deseribed in Seetion 11, below.
Q) "LendeT' means the financial institution(s) providing the Loa� ro
Developer, which institution(s) shall be approved by the City.
(k) "Load' means one o� more loans to fund Project Costs in the maximum
amount of Seven Million Five Hundred Thousa�d and No/100 Dollars ($7,SOQ000.00)
from Lender to Developer.
(I) "Minimum Proiect CosP' means Fo�rteen Mi]]ion and No/I00 Dollars
($14,OOQ000.00).
(m) `Pavment Date"means each November 1.
(n) "Proiect° means Ihe acquisition, renovation, fumishing and equipping of
the 176 room hotel located on the PropeRy into a mid- to upper price full service hotel
with banquet facilities and convention service.
(o) "Project Costs" mearis the total costs of acquiring, renovating, fumishi�g
and equippi�g the Project, i�cluding all capital expenditures (or expenditures that wuld
bc treated as capi[al expendi[ures) and preliminary expenditures (such as arohitec[ural,
engineering, surveying, soil testing, and similar cosis that are inculred in cocutec[ion with
the construction of the Project) and all other direc[or indirec[wsts of development of the
Project i� accordance with [he Project Plans.
(p) `Proiect Costs Itemization° means a cost itemizatio� of construction and
noownstruction cost items identifying each eleme�t of the Project and a�y eontingency
and all othe� direct or indirect costs of development of the Project in accordance with the
Project Plans.
(cil °Proiec[ Plans" means fina] detailed plans and specifieatio�s for the
Project including, without limitation, the plans a�d specifications for the renovation of
the hotel lobby, public meeting spaces, guest rooms, the repair and replacement, as
3
855926"!_4
necessary, of building systems, and all other improvements ]ocated or to be bcated on thc
Property.
(r) "Provertv° means the parcel of land upon which [he Project is located, as
legally described on Exhibit A.
(s) "Tax Increme�f' shall have the meaning set forth i� Wis. Stat.
§66.1]OS(2)(i).
(t) "Term" means the period of time commencing on Ihe Closing Date and
terminating on the Expiration Date.
(u) "TIF DistricP' means Oshkosh Tax Incremental District No. 25 (City
Center Hotel Rehabilitation).
(v) "TIF District Proiect Plad' means the Project Plan fo� Tax Increment
District No. 25 as approved by the City's Common Counci] on May 22, 2012 and by the
Joint Review Board on June 12, 2012, as the same may be amended from time to time.
2. Proiect Overview. Developer and OI Cocp. will construct and manage the Project
on the Property in aceordance with the Projec[ Plans. The City will provide a development
assistance gra�t in an amount of Two Million Dollars ($2,000,000.00) to OI Co�p. under the
terms of a Development Agreement to be dated of even date herewith (the "OI Develooment
Aereement°), a copy of which is attached hereto as Exhibit B. The Developor will own and
operate the Project and the Property. To assist the Developer with the Project, the City will
provide the Contribution.
3. Citv Contribution. �
(a) Subject to all the terms and conditions of this Agreement and applicable
law, the City wil] provide payments to the Developer solely from future Tax Increments
to assist with Project Costs; nrovided, that the tota] aggregate amount of the City's
payments to [he Developer shall oot exceed One Million aod No/100 Dollars
($1,00Q000.00).
(b) As the sole souroe of payment for the City Contributioq the City agrees to
pay to the Developer seventy five percent (75%) of each Annua] TaY Increment Surplus
attributable to the PropeRy based on taxes accrued through the Expiration Date.
Payments under this Ageement shall be made on Payment Dates solely from Tax
Inerements attributable to the Property actually received by the City by each Payment
Date. [n no event shall the City's payment to the Developer exceed the total Tax
Inerement gone�ated by the Property. The City Confibution, as evidenced by this
Agreement, shall be a special and limited obligation of the City arid not a general
obligation. Payments under this Agreement shall be due i� annua] installments beginning
on the first Payment Date of the calenda� year following the 5rst tax year in which an
Annual Tax Inerement Surplus exists and continui�g each Payment Date thereafter in a
tax year in which an An�ual Tax Inerement Surplus exists, until the eadier of (i) the
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receipt by Developer of the maximum City Co�tribution of One Million and No/100
Dollars ($1,000,000.00), or(ii) the Expiration Date.
(c) The Developer acla�owledges 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 upon various factors including, but not limited tq futurc
mill rates, changes in assessed value of the Property, the failure of the Property to
generate Tax Increments at the rate expected by the Developer, changes in the Tax
Ineremeot Law, and other factors beyond the City's and/or the Developer's control.
(d) The City covenants to the Developer that unless the City Co�tribution has
been paid in full, the City shall not close the TIF District prior to the Expiration Date.
(c) The City shall, at the Developer's request, provide to the Developer an
accounting of the TIF Districy including but not limited to, the outstanding balance of
the City Contribution and the ann�al Tax I�creme�ts received from the TIF DisMet.
4. Conditions Precedent to Citv's Oblieations. In addition [o all other conditions
and requirements set forth in this Agreement, the obligations of the City hereunder (includi�g
without limitation, the obligation of the City to pay the City Contribution) are conditioned upo�
the satisfaction of each and every of the following conditions:
(a) On or before the date of this Ageement, the Developer shall p�ovide the
City an opinion of its counsel reasonably acceptable to the City stating among other
things, that the persons executing this Ageement on behalf of the Developer are
authorized [o do sq Ihat the Developer has duly authorized entry into this Ageement,
and other matters as are reasonably requested by the City.
(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 Certificatc of Status issued by the Wisconsin Depar[ment of
Financial Institufions.
(c) On each Payment Date, 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) Within thirty (30) days following the date of this Agreeme�t, the City and
the Developer shall have entered into a� agreement pursuant ro which the Developer wil]
make payments to the CiTy for the Developer's use of the parking structure located
adjacent to the Property, subs[antially in the form attached hereto as Exhibit C.
(e) The Developer shall have (i) conveyed [he real property described on
Exhibit D to the City (the "Riverwalk ParceP'), and (ii) granted such pennanent and
temporazy easements as are necessazy to allow the City to construct those portions of the
City Center Area and Hotel Zone segment of its continuous riverwalk system (as
envisioned by the City's 2005 "Fox River Corridor Riverwalk Plan and Design
Guidelines," as the same may be amended from time to time) which aro located on the
Riverwalk Parccl, the Property or within the adjoining channel of the Fox River.
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(� The City and the Developer shall have entered into an Operatio�s
Agreemont p�rsuant to which the Developer will assume the management, marketing
promotion and operation of[he Oshkosh Convention Center.
(g) The Developer shall have executed the Mortgage and delivered it to the
City for recording.
(h) The Developer shall have delivered the subordination agrecme�t
referenced in Section 6(j) to the City.
Unless all conditio�s cootained in this Section 4 are satisfied within the time
periods for satisfaction of such conditions as set forth above or such conditions aze waived in
writing by the City within the time periods for satisfactioo of such conditions as set forth above,
the City, at i[s option, exercised in its sole discretion, may terminate this Agreement, in which
event none of parties to this Ageemcnt shal] have a�y further liability or other obligation to the
other paRies.
5. Representations, Warranties of Develoner. The Developer represents and
warrants to the City as follows:
(a) The Developer is a limited ]iability company duty organized and validly
existing and has the power a¢d all neeessary licenses, permits, and &anchises to owo its
assets and properties and to cazry on its business.
(b) The Developer is duly licensed or qualificd to do business in the State of
Wisconsin and all other judsdictions in which failure to do so would have a material
adverse effect on its business or financial condition.
(c) The executioq delivery and perfonnance of this Agreement have been
duly authorized by all necessary limited liability company action of the Developer and
co�stitute the valid and binding obligations of the Developer enforceable in accordance
with their tenns, subject only to applicable banlwptcy, insolvency, reorganization,
mora[orium, general principles of equiTy, and other similar laws of general application
affecting the enforeeability of creditors' nghts generally.
(d) The executioq delivery, and performance of the Developer's obligations
pursuant to this Agrcement will not violate or conflict with the Developer's ARicles of
Organization or Operating Agreement or any indenmre, instrument or agreement by
which the Developer is bound, nor will the executioq delivery or perfonnance of the
Developer's obligations pursuant to this Ageement violate or conflict with any law
applicable to the Developer or to the Project.
(e) There is no litigation or proceeding pending or affecting the Developer or
the Projec[, or, to [he best of the Developei's Imowledge, threatening the Developer or
the Project, that would adversely affeet the Project or the Developer or the enforceability
of this Ageement, the ability of the Developer to complete the Project or the ability of
the Developer to perform its obligations under this Agreement.
6
essvznr a
(� To the best of the Devcloper'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 iu defa�lt (beyond any applicable no[ice and cure
period) of any of its obligatio�s under any other agreement or instrument to which thc
Developer is party or obligor.
(g) The Property is in compliance with all applicable material federal, state,
and local statutcs, regulatioos, rules, and/or ordinances, and with all orders, decrees, or
jodgments of govemmental authorities or cour[s havi�g jurisdictioq relating to the use,
geoe�ation, manufacture, collection, treatment, disposal, storage, control, removal, o�
cleanup of hazardous substances (as that [erm is defined in Section 12, below). In the
event any hazardous subs[ances aze present in, at, on or about the Property, the Developer
shall be responsible for removing or otherwise monitoring or remediating such hazardous
substances as required by, and in full compliance with applicable law.
The representations and wacranties contained herein shall be true and correct as of the
date hereof and as of the Closing Date.
6. Covenants of Develooer. During the Term of this Agreement, the Developer
covenants to the City as follows:
(a) The Developer and/or OI Corp. shall pay for all work performed and
materials fumished for the Project as and when due.
(b) On or before the Completion Date, the Project shall be completed (subject
to matters of,�orce majeure), and in all other respects be ready for occupancy and use by
the Dweloper.
(c) The Developer shall conform and comply with, and will cause the Projeet
to be in conformance and complianee 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, al] building codes and ordinances of the
City, and all environmental laws, rules, regulations, and ordina�ces.
(d) The Developec shall cause Ihe Project to be constructed iu a good and
workmanlike manner and substantially in accordance with the Project Plans and wil]
promptly correct any defects, structural or otherwise, in any construction or deviations
from the Project Plans. Construction of ihe Projec[ shall bo completed free of all liens
and e�cumbrances except for those liens and encumbrances permitted by this Agreement.
(e) The Developer shall not, withoat the prior written consent of the City (i)
approve any change or modification in the Project by change order or otherwise that
would cause the Project Costs to be less than Ihe Minimum Project Cost, or(ii)modify or
amend any agreement affecting the Project in a ma�ncr which would cause the agreement
to be materially inconsistcnt with this Agreement.
(� The Developer shall permit the City and the City's co�struction consultant
or inspeetor, at all reaso�able timos, to inspect the Project and all matters relating to the
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development thereof. The City assumes no obligation to thc Dcvcloper for the
su�ciency or adequacy of such inspectio�s, it being acknowledged that such inspections
are made for the sole and separate benefit of the City. The fact that tho City may meke
inspections shall in no way relieve the Dcvcloper from its duty to independently ascertain
that the construction of the Project is being completed substantially in accorda�ce with
the Project Plans.
(g) The Developer shall pay or cause to be paid prior [o delinquency all
Yederal, state and local taxes in connection with the Project. The Developer shall pay
when due all operating expenses in connection with the Project.
(h) The Developer shall comply with thc rcquirement 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 resMction
affecting the TIF District and with all laws, rules, regulations a�d o�dinances generally
applicable to tac increment districts that are applicable to the Project.
(i) The Developer shall have in effect at all times, al] permits, approvals and
licenses that may be required by any govemmental authority or nongovernmenta] entity
in connection with the development, constrnetion, ma�agement and operation of the
Project.
(j) Except for a mortgage i� favor of I.ender securing the Loaq the
Developer will not mortgage or otherwise place a ]ie� or encumbrance on the Property
witho�t 5rst obtaining the City's consent, which eonsent the City shall not u�reasooably
withhold; provided, that in no event shall the City be required to consent to a mortgage,
lien or encumbrance which would be entitled to priority over the lien of the Mortgage (as
defined in Section 11, below). The City he�eby consents to that certain Mo�tgage gra�ted
by Developer to the University of Wisconsin Oshkosh Foundatioq Inc. dated and
recorded Februazy 14, 2012 in the Winnebago County Register of Deeds as Dowment
No. 1594517, which mortgage was assigned to The Oshkosh Area Community
Foundation Coryoration ("OACF") by an Assignment of MoRgage dated and recorded
Febmary 14, 2012 in the Winnebago Co�nty Register of Deeds as Document No.
1594518; nrovided, tha[ OACF shall execute and deliver a subordination agreement in
favoc of the Ciry, in a form aceeptable to the City in the City's reasonable discretion.
(k) The Developer, at its wst and expense, shall operate, maintaiq repair and
replace (including without limitation, repairs and replacements of a capital nnture) all
elements of the Project The Develope2s maintenance and repair obligations shal]
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 maintai� the Project. The Developer will not defec
a�y reqaired maintena�ce, repair or replaeement (includi�g, without limitation, repairs
and replacements of a capital nature) of any element of the Project and shall establish
adequate reserves therefor.
8
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(I) Tho Developer will not, without the City's consent, initiate any change in
the zoning classification of aIl or any portion of the Property.
(m) The Developer will operatc [he Projec[ subs[nn[ially in accordance wi[h
the fi�al operating pro forma submitted to the City in conjunction with the Project Plans,
and shall not increase the amount of any management fees paid to Developer or any third
party beyond what is set forch in the operating pro forma without the City's consent.
(u) The Developer shall �ot remove OI Co�p. as its manager nor shall it
permit the appointment of an additional manager.
7. Damaee: 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 equa]
to the fair market value of the Project immediately prior to the casualty. The Developer shall not
be relieved of its obligations [o make Guaranty Payments as such payments become due and
payable under Section I I, below, as a result of fire, condemnation or other casualty or during the
period of repair or rcbuilding and replacement of the Project.
If the Project is required to be rebuilt or repaired or replaced, then the Project shall bc
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 porlion 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 Agreeme�t entered into pursuant to Section 4,
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 Pmject is not �ebuilt, repaired and/or replaced following fire, damage or other
casualty, that shall no[ operate to release the Developer from its ]iabilities 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 Ageement pay all
reasonablo and itemized fees, wsts and expe�ses actually incu�red by the City, inclading
administrative costs and attomeys' and consultants' fees, in connection with the cieation and
maintenance of, and a�nual reporting for, the TIF District, thc developme�t of the TIF DisMct
Project Plan, the negotiation and preparation of this Ageement and al] documents and
agreements executed in connection 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
Dollazs ($5,000.00), which amount will increase by one and one-half percent (1.5%) each year
during the Tenn. Dweloper shall also pay all reasonable and itemized fees, costs and expenses
actually incurced by the City, including attomeys' and consultants' fees, in connection with the
enfoccement of its rights against the Developer uoder the TIF District Project Plan o� this
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Agreement, including without limitation, the enforcement of such rights in any bankruptcy,
reorganization orinsolvency proceedinginvolving the Developer.
9. CiN's Rieh[ to Cure Defa�lt. In case of a failure by the Developer to procurc or
maintain insurancc, or to pay any fees, assessments, charges or [axes arising with respect to the
Project or to comply with the terms and conditions of this Agreement or any othcr document,
contract or ageement effecting the Project, the City shall have the right, but shall not be
obligated, to effect such insurance or pay such fees, assessments, chazges or t�es or take such
action as is necessazy to remedy the failure of the Corporation to comply with the dowments,
contracts or ageements effecting the Project, and, in that event, the cost thereof shall be payable
by Ihe Developer to the City.
10. Real Estate Taaces and Assessments. The Developer shall pay timely to the City
generally applicable property taxes assessed and levicd by the City on the Property under
applicable property tax ]aws, rules, ra[es, regulations and ordinances in effect from time to timc.
Nothing in this Agreement shall impair any statutory rights of the City with respect to ihe
assessme�t, lery, priority, collectioq and/or enforcement of real estate property taxes In
addition, the Developer agrccs to pay [imely to the City all specia] assessments that may be
assessed or levied in connection with the Property under the applicable specia] assessment laws,
rules, regulations, ordinances and rates in effect at the time said special assessments are assessed
or levied.
I l. I�creme�t Guarantv.
(a) The Developer hereby guarantees that commencing iu 2016, Tax
Incremen[s received during eaeh calendaz year will be at least equal to the debt service
payable by the City during such calendar year on all amounts disbursed for or on behalf
of the Project. In the eve�t that thece is an Anrival Tax Inerement Defieit in any given
year, the CiTy shall notify the Developer, in writing, that there is an Annual Tax
Increment Deficit, and the amount of the Annual Tax Increment Deficit ("Deficit
Notice"). Within thirty (30) days after the Defieit Notice, Developer shall pay the City
an amount equal to the Annual Tac Increment Deficit(a"Guarantv PavmenP').
(b) Rove�ue Generation. The Developer acknowledges that the City
Contribution is being provided by the City in reliance upon the future generation of
general property ta�ces which will generate revenues for the City, including the revenues
necessary to cepay the City's debt on all amounts disbursed for or on behalf of the Project
u�der the OI Development AgreemenL Duri�g the term of the TIF District, the
Developer shall use, and shall assure [he use by any subsequent purchascr of, the
Property f'or wmmercial purposes sufficient at all timcs to avoid an Annual Tax
Inerement Deficit and shall take no aetion which would negatively affeet the value of the
Property.
(c) Convevance to Third Partics. The Developer shall not sell, transfer or
convey the Property, any portion thereof or any improvements thereoq to any person or
entity unless such person or eutity, for itself and its successors and assigns, agrees to be
boand by Ihe terms of this Sectio� ll to the same exte�t as the Developer.
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855926] 4
(d) The Devcloper's obligatio�s under this Section ll shall bc secured by a
Mortgagc gantcd in favor of the Ciry (the "Morteaee'�, in the form attached hereto as
Exhibit E. The Mortgage shall be subordinate only to [he mortgage of Lender securing
the Loan.
(e) The Developer's obligations under this Section l 1 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 Guazanty Paymen[due under this Section
1 l, the City may, in addition to all other remedies available to it in law oi equi[y, lery the
amom[ of the overdue obligation agains[ the Property as a special assessment pursuant to
Wis. Stat §66.0701. In connection therewith, the Doveloper: (i) acknowledges that the
City has incuned costs for the payment or reimbursement of the Project Costs; (ii) agecs
that the amount of the special assessment, if levicd consistent with this Agreement,
constitutes a proper exercise of the City's a�thority to levy special assessments in
acwrdance with Wis. Stat. §66.0701; (iii) agrees that the allocation of the City's costs to
the Proper[y is reasonable and commonsurate with the special benefits provided to the
Property; (iv) agrees that the amount being assessed in accordance with this Agreement
does no[ exceed the value of the benefits accruing to the Property from tbe City's
expenditures identi5ed hereiq (v) consents to the imposition and levy of such specia]
assessments; (vi) agrees that the app�oval of this Agreement by the Oshkosh Common
Council shall be suft3cient to authorize the levy of specia] assessments in accordance
herewith, and that no further procedural steps need be taken by the City; (vii) waives aIl
special assessment no[ices, 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 Ageement,
and specifically the terms of this subsection, that such reliauce is reasonable, and that the
City's payme�t of i[s obligatio�s to the Developer ander this Ageemeut will be
detrimenta] ro the City if the provisions celating to special assessments are not enforced
and that a failure to enforce such agreements would be inequitable.
(� The Developer's obligations under this Section 1 I are joint and seve�a]
with those of OI Corp. under the OI Cory. Development Agreement
12. Indemnifications. The Developer hereby indcmnifies, def'ends and holds the City
harmless from and agains[ all loss, liabili[y, damage and expense, including reasonable
attomeys' fees, suffered or incurred by the City to the extent caused by the following: (a) the
failure of the Developer or its co�tractors, subconhactors, agents, employees, or invitecs to
comply with any environmental law, rule, regulation or ordinance, or any order of any regulatory
or adminis[rative authority with respec[ Ihereto; (b) any release by the Developer or i[s
contractors, subcontractors, agen[s, employees or imitees of petroleum products or hazardous
materials or hazardous substanees on, apon or i�to 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, subcontraetors anNor agents to comply with
any law, rule, regulation or ordinance or any release of peholeum products or hazardous
materials or hazazdous substances as described in clauses (a) and (b) above; (d) daims arising on
the Property u�de� the Americans with Disabilities Act, and any other laws, rules, regulations or
ordinances; (e) claims for third partics for injuty to or death of any person on the Property; and
11
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(� the failure of the Develope� to maintaio, repair or replace as needed any portion of the
Project.
The [erm "hazardous substanccs"mcans any flammable explosives, radioac[ive ma[erials,
hazazdous wastes, toxic substances, or related materials, including without limitatioq any
substances defined as or included in the definition of "hazardous substances," "hazardous
waste," "hazazdous materials,° or `toxic substances" under any applicable federal or state oc
local laws or regulations.
13. Insurance. The Developer shal] maintain the following insurance policies issued
by insurers with a rating of at least "A=' and in a financial size category of at least °X" as
established by A.M. Best Company and licensed to do business in the State of Wisconsin: (i)
property insurance on the PropeRy with coverage limits equal to the full replacement cost of the
building and contents; (ii) commereial general ]iability insurance with limits of$1,OOQ000 per
ocwrrence and $5,000,000 i� the aggegate; (iii) statutory worker's compensation insura�ce; and
(iv) automobile liability insurance with a combined single limit of$1,000,000.
Each insurance policy shall require the insurer to provide at ]east thirty (30) days prior
written notice to the City of any material change or cancellation of such policy.
14. Nondiscrimination. The Developer shall not use the Project in any manner [o
pennit discrimination or restriction on the basis of race, creed, cthnic origin or identity, color,
geoder, religion, marita] status, age, handicap or national origin, and the Devcloper shal]
construct and operate the Project i� compliance wi[h all laws, rules, regulations and ordinances
relating to discrimination or any of the foregoing.
15. Prooertv Tax ChallenKes and Exemntions. The Developer shall not seek [o
reduce the assessed value of the Property below an amount necessary to create the Tax
Inerements set foRh on Exhibit F. In addition, the Developer shall not cause or permit the
Property or any portion thereof to become tax exempt unless condemned by a govemmental
entity. The Developer will place a restriction in any deed conveying al] or any portion of the
Property prohibiting any use or ownership of the Proper[y which would cause the Property or
any portion thereof to become tac exempt.
16. UefaulL The occurrence of any one or more of the following events shall
cons[itute a default hereunder.
(a) The Developer or any successor shall fail to pay when due any Guazanty
Payment or other amount due from it under this Agreement, and such failure continucs
for fiftecn Q 5) days after the Developer has received a written notice of def'ault and such
Guaranty Payment or other amourit due is not paid timety by OI Cocp.; or
(b) Any representation or wazranty made by the Developer or any successor in
this Agreement or any document delivered by the Developer or its successor pursuant to
this Agrecment shall prove to have been false in a material way as of the time made or
given; or
12
A5592R] <
(c) The Developer or any successor shall breach or fail to substantially
perfortn timely or observe timety any of its covenants or obligations under this
Agreement, and such failure shall co�tinue for thirty (30) days following �o[ice [hereof
hom the City to [he Develope� (or such longer period of time as is neeessary to cure [he
default as long as the Developer has commenced the cure of the default within [he thirty
(30) day period and is diligently pursuing to cure the default and as long as the default is
c�red not later [han one hundred eighty (180) days following uotice thereof from the
City); or
(d) The Pioject is not substantially wmpleted on or before the Completion
Date(s�bjeet to matters offorce majeure); Or
(e) The Developer shalL (i) become i�solvent or generally no[ pay, or be
unable to pay, oi admi[ in writing its inability to pay, its debts as they mature; or (ii)
make a general assig�ment for the benefit of aeditors or to an agent authorized to
]iquidate any substantial amount of its assets; or (iii) become the subject of an order for
relief within the meauing of the Unitcd States Banlavptcy Code, or file a petition in
bankruptcy, for reorganization or to effect a plan or other arrarigement with creditors; or
(iv) have a petitio� o� application filed against it in banlwptcy 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, oc (v) apply to a cour[ for the
appointment of a receiver or custodian for any of its assets or propertics 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 ninery (90) days after its
appointment; or(vi) adopt a plan of complete liquidation of its assets; or
(� An event of default occurs under the OI Developmeut Agreement.
17. Remedies. Upon the occurrence of any default, without fuRhei 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 thc rights and �emedies available to the City at law
and/or in cquity against the Developer and/or the Project.
Except as may be otherwise specifically set forth herein, no remedy herein confened
upon Ihe City is in[ended to be exclusive of any other remedy and each and every such remedy
shal] be cumulative and shall be in addition to every o[her remedy given under this Ageement,
andPor available to the City under the TIF District Project Plan a�d any other covenants,
restrictions, docume�ts or instruments goveming the TIF District, and/or now or hereafter
existing at law or in equiry. No failute or delay on the paR 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 exeroise of any other right or remedy.
l3
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Notwithstanding any of the foregoing authorizations, the City shall have no duty or obligation
whatsoever with respect to any of the matters so authorized.
18. No Personal Liabititv. Under no circumstances shall any council member,
o%cial, director, attomeg employee, or agcnt of a party havc any personal ]iability arising out of
this Agreement, and no paRy shall seek or claim any such personal liability.
19. Citv Authorizatioa The execution of this Ageeme�t by the City is authorized by
Common Council Resolutions No. 12-290 dated May 22, 2012 and 12-509 dated October 9,
2012.
20. Miscellaneous.
(a) Except as otherwise specifically set forth herein, the respective rights and
liabilitics 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 thc other par[y.
Provisions of this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
(b) No waiver, amendment, or variation of the terms of this Agreement shall
be valid onless in writing and signed by the City and the Developer, and then onty to the
exte�t specifically set foRh in writing.
(c) All material applicable agreements, iepresentations, wa`ranties, covenants,
liabilities and obligations made in this Ageement and in any document delivered
pursuant to this Agreemen[ shall remain effective during the Term of this Agreement.
(d) All communications or uotices required or permitted by this Agreement
shall be in writing and shall be deemed to have been give¢ (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
ovemight commercial carrier that will certify as to the date and time of dclivery, air bill
prepaid, or (iii) upon tiansmission if by facsimile, any such communication or notice
shall be addressed as follows, unless and until a�y such party notifies the other in
acwrdance wi[h this section of any change of address:
If to the Citv: City of Oshkosh
City Attomey's Office
215 Church Averme
Post Office Box 1130
Oshkosh, WI, 54903-1130
Attn: City Attomey
Facsimilc Na (920) 236-5106
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A55926�4
With a coov to: Godfrey& Kahn, SC.
]00 West Lawrencc Street
Appletoq WI 54911
Attn: Michael J. Lokensgard
Facsimile: (920) 830-3530
If to the Develoner. Oshkosh Investors, LLC
One North Main Strcet
Post Office Box 1203
Oshkosh, WI54903-1203
Attn: Rich Batley
Facsimilc: (920)
With a coov to: Reff, Baivier, Bermi�gk�am & Lim, S.C.
217 Ceape Avcnue
Post Office Box 1190
Oshkosh, WI54903-1190
Attn: Russell J. Reff
Facsimile: (920) 231-0035
(e) This Agreement and the documents executed pursua�t to this Agreement
contain the entiie understanding of the parties with respect to the subject matter hercof.
There aze no restrictions, promises, warranties, covenants or understandings other than
those expressly set forth in this Ageemeot a�d documents executed in co�nection with
this Ageement This Agrcement and the documents executcd in connection herewith
supersede all prior negotiations, agreements and undertakings between the parlies with
respect to the subject matter hereof.
(� This Ageement is intended solely for the benefit of the Developer and the
City, and no third party (other than successors and permitted assig�s) shall have any
rights or interes[ in any provision of this Ageement, or as a result of any action or
inaction of the City in eonnection therewith. Without limiti�g 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 con[ractor or other
person in any dispute with the construction of the Projcct.
(g) This Agreement shall be govemed by, and construed and interpreted in
accordance with, the laws of the State of Wisconsin applicable to cont�acts made and
wholly performed within the State.
(h) This Agreement may be executed in several eouuterparts, each of which
shall be deemed an original, but such counterparts shall together constitute but one in the
same AgreemenL 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 ro the extent of such prohibition
15
8559269 4
or enforceability without invalida[ing the remaining provisions of this Agrccme�[ in such
jurisdiction or affecting the validity or enforcement of any provision in any othcr
jurisdiction.
(j) Nothing contained in this Agreement or any other documents executed
pursuant to this Agreemcnt shal]be deemed or construed as creating a par[nership 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 thc Developer to be responsible in any way for Ihe deb[s or
obligations of the City or any other person. Each party represents, wacrants and agrees,
for itself and its successors and assigns, not to make any asseRion inconsistent with its
acknowledgement or with the acknowlcdgement and agreement contained in the
preceding sentence in the event of any actioq sui[ or procecding at law or i� equity, with
respect to the transactions which aro the subject of[his Agreeme�t and this pazagraph
may be pleaded and construed as a complete bar and estoppe] 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 esse�ce as to each and every obligatio� or agreement
contained in this Agreement.
(I) If any party is delayod or prevented from timely perfocming any act
required under this Agreement other than the payment of moneg by reason of fire,
earthquake, war, terrorist act, flood, riot, strikes, labor dispu[es or shortages, govemment
restrictions, judicial order, public emergency, or other causes beyond the reasonable
contro] of the paRy obliga[ed to perfonn, the perfoanance of such ac[ 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 equivalen[to such dclay.
(m) No disbursement to or on behalf of OI Coip, pursuant to the OI
Development Agreement or a�y poRion of the City Contribution shall preclude the City
from declaring a default hereunder and pursuing its remedies hereunder in the event the
Developer fails to fulfill its obligations hereunder or cure any such default.
(n) A memorandum of this Agreement may be recorded in the office of the
Register of Deeds of Wi�nebago County, Wisconsin, it being understood by the parties
that until Expiratioo Date, this Agreement wil] run wi[h the land and will be bindi�g upon
the Property. This Agreement inures to the benefit of the City and its successors and
assigns.
(o) The headings to this Agreement are for roference only and are not
intended to modity any of the terms and conditions of this Agreement.
(p) Nothing co�tained in this Ageement is intended ro or has the effect of
releasing the Developer from compliance with all applicable laws, rules, regulations and
ordinances in addition ro compliance with all the terms, conditions and covenants
contained in this Agreement.
16
85592fi9_4
(q) This Ageement is the product of negotiation between the parties hereto
end no cerm, covenant or provision herein or the failure ro include a tcrm, covenant or
provision shall be cons[rued agains[ any party hereto solely on the basis Iha[ one party or
the other drafted this Agreement or any teaq covenaut or condition contained herci�.
(r) Upon mutual consent of the par[ies [o this Agreement, which wnsent any
party can withhold in its sole discretion, the paRies can agree to submit disputes arising
under this Agreement to altemative dispute resolution.
(s) EACH PARTY TO THIS AGREEMENT HEREBY WANES TRIAL BY
JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM,
WHETHER CONTRACT OR TORT, AT LAW OR EQUITY, ARISWG OUT OF OR
IN ANY WAY RELATED TO THIS AGREEMENT.
(t) All amounts not paid when due hereunder shall bear interest at the rate of
twelve percent Q 2%).
21. Other Approvals. In addition to any approvals required under[his Ageement, the
Developer shall be required to obtain all approvals, consents, and licenses as may be required by
any governmenta] or non-governmental aothodty in wn�ection with the Project, including,
without limitation, aI! building peemits, Project Plari approvals and zoning approvals. The
Devcloper's compliance with the tenns of this Agreement shall not relieve the Developer from
complying with all applicable federal, state and loeal laws, rules, regulations and ordinances in
connection with the Project and to the extent any govemmental or non-govemmental entity
imposes differcnt or more restrictive conditions on the Developer or the Project, compliance by
[he Developer with the terms of this Ageement shall not reliwe the Developer from complying
with such differe�t or more restrictive eonditions. Likewise, any less cestrictive conditions
imposed on the Developer or the Project by any govemmental or non-govemmental authority
shall not relieve the Developer or the Project from eomplyi�g with al] of the tertns and
conditions of this Agreement.
[SIGNATURE PAGES FOLLOW]
17
xssvwi a
IN WITNESS WHEREOF, the parties have cxccuted this Ageement as of the date first
above written.
CITY OF OSHKOSH, WISCONSIN
By:
Mark A. Rohloff
Its: City Manager
By:
Pamela R. Ubrig
Its: City Clcrk
Approved as to furm:
By:
Lynn A. Lorcnson
Its: City Attomey
I hereby certify that the nccessary provisions have been made to pay the liability which
will accrue under this Agreement.
Peggy Steeno, Finance Director
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
Perso�ally came before me this day of , 2012, the above-named Mark A.
Rohloff and Pamela R. Wrig to me known to be the City Manager and City Clerk of the City of
Oshkosh, Wisconsin and the person who executed the foregoing documen[ and acknowledged
the same.
r
Notary Public, State of
My commission:
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE]
18
assv�ni a
OSHKOSHINVESTORS,LLC
. By: OI MANAGEIvffiNT CORPORATION,its Manager
By:
John Pfefferle
Its: President
By:
Arthur H. Rathjen
I[s: Secretary
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
On[his_day of 2012 personally came before me John Pfefferle and .
Arthur H. Rathjen, to me Imown to be the President and Secretary of OI Managemen[
Coiporation, a Wiscousin corporatioa and Manager of Oslilcosh Inves[ors, LLC, a Wisconsin
� limi[ed liability company, and the peisons who executed the foregoing instrnme¢t and
acknowledged the same.
Norary Public, State of Wisconsin
My comrrtission
19
855926�4
Exhibit A
Property Legal Description
Lot Three (3) of CERTIFIED SURVEY MAP NO. 1197 filed in Volumc 1 of CertifieA Survey
Maps on Page 1197 as Document No. 602518; being part of Lots One (1) through Eleveo (11) in
Moore's Subdivisioq in [he First Ward, City of Oshkosh, Winncbago County, Wisconsiq
excepting therefrom that portion thereof heretofore conveyed to the City of Oshkosh for
rivenvalk purposes by Deed recorded in Document No. 1612548.
TaxID Number0100400000
855Y26] 4
F,xhibit B
OI Development Agreeme�t
[omitted from exUibit copy]
Exhibit C
Fonn ot Parking Agrccment
[omitted from exhibit copy]
Exhibit D
I,egal Description of Riverwalk Parccf
That part of Lot Three (3) of CcRificd Survey Map No. t 197 filed in Volume 1 of Certified
Survey Maps on Page 1197 as Document No. 602518; being a part of Lots One (1) thro�gh
Eleven (11) in Moore's Subdivisioq in the First Ward, in the City of Oshkosh, Winnebago
Coanty, Wisconsin, described as follows:
Beginning at the southwest comer of said Lot 3, that also being the southeast comer of°City
Ccnter°, a Wisconsin Condominium and a point on the northerly U.S. Harbor Line of[he Fox
River; thence N OS°54"27' E, 37.23 feet along the west line of said Lot 3; thence S ]0°4T20" E,
9.06 feet; thence S 53°54'04° E, 8427 feet; thence N 36°OS'S6"E, 1.60 feet; thence S 61°20'S6"
E, 4.28 feet; thence S 21°1P31" W, L50 feet; thence S 68°48'29" E, 123.19 fcct; theoce N
55°2P48" 8, 827 feet; thence N 00°2Y46" W, 2298 feet to the southeast comer of an existing
masonry building; Ihence N 00°2T46" W, ]0.03 feet along the face of said existiog masonry
boilding; thence N 89°50'23" E, 8.74 feet to the east line of said Lot 3 and the west right-of-way
of North Main Street; thence S 00°09'37" E, 46.17 feet along the east line of said Lot 3 and the
west right-of-way of North Main Strect to the southeast comer of said Lot 3 and a point on thc
U.S. Hazbor Line; thence N 69°42'36" W, 221.69 feet along the U.S. Harbor Line and the south
line of said Lot 3 to the Point of Beginni�g.
Property Address: .52 acres of 1 N. Main Street Oshkosh, WI 54901
'Cax Parcel Numbec PART OF 901-0040
assize� a
Exhibit E
Fonn of Mortgage
[attached]
R55926]_4
MORTGAGE
DOCUMENTNO.
TIIISSYTCE NS[RVfDPoR 0.EC90.�ING`lAia
W MEAp'�R[TI]0.M1 AOORFSS
Lynn A. Lorenxoq[sq.
QI}�OE�6�1�C06�1
215 Church Avenue
i Oshkosh WI54903-1130 .
--"'
O100400000 ���
Parcel IdentiFicetion Number
This instrument was drafred by:
Michael J. Lokensgard
Godfrey&Kahn, S.C.
100 W. Lawrence Street
Appleton, WI54911
asssss�_a
MORTGAGE
THIS MORTGAGE is made and entered into as of this day of Octuber, 2012, by
and between OSHKOSH INVESTORS, LLC, a Wisconsin limited liability company (the
"Mortgagor") a�d 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 AgreemenP') by and between Mortgagor and MoRgagee dated as of October
, 2012. The term "Obligations" as used in this Mortgage shall mean all sums payable to or
for the benefit of Mortgagce by Mortgagor under the Development Ageement or this Mortgage,
including any and all expenses reasonably incucred by Mortgagee to enforce obligations of
Mortgagor, as permitted under this Mortgage or the Development Abrzeement.
FOR VALUE RECEIVED, Mortgagor hereby moRgages to Mortgagee Mortgagor's
i�terest i� the real property described in Exhibit A attached hereto, with all appurte�ances and
existing or futuro improvements (the"Prope�ty").
The Mortgage is given to secure payment of the Obligations and is given and accepted on
the following terms and conditioq which Mortgagor will promptly a�d faithfully observe and
perfortn.
The lien of this Mortgage is and shall at all times bc secondary, subordinate and inferior
to the lie� of each mortgage, deed of trust, security ageement, assignment of rents and leases
and any other instrument securing payment of the loans to Mortgagor for the construction or
development of the PropeRy described on attached Exhibit B (the °Prior Encumbrance(s)").
This subordination shall be self-executing as ro 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 o�
Exhibit B, or their respective sucecssors or assigns with respect to such Prior Encumbrance(s),
Mortgagee shall exccu[e and deliver to such person such subordination and other instruments
tha[ such person may reasonably require aod [hat pass in the trade among prudent fi�ancial
institutions seeking to wnfitm or obtain priority over a prior flled or subordinate lien to confirm
or establish the subordination of the lien of this Mortgage to such interesL Mortgagor hereby
expressly covenants and agrees to pay or see to the payment of the Obligations and perfoRnance
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 fonvard to Mortgagee a copy of any notice of default under any then Prior
Encumbrance(s) which Mor[gagor 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 por[ion of the Properfy become payable on loss or taking or any other income or proceeds
855926]_4
of[hc Property would othcrwise become payable to Mortgagee, thc provisions in [his MoRgage
for division of such proceeds shall apply only to that portion of the proceeds not payable to the
holder of any Pnor Encumbrance. Each provision of Ihis Mortgage shall be subject to a�d
subordinate ro the [erzns and w�ditions of (a�d rights of Ihe ]e�dcr(s) as [o) [he Prior
Encambrance(s).
l. PAYMENT AND PERFORMANCE. Mortgagor sha]] pay to Mortgagec all
amounts, paymcnt of which is secured by this Mortgage, and shal] perform all obligations
imposed upon Mortgagor by Ihis Mortgage or the Prior Encumbrance(s).
2. POSSESSION AND MAINTENANCE OF THE PROPERTY.
21 Possession. Until i� default, Mortgagor may remain in possession and
control of and operate and manage the Property and collect income from the Property.
2.2 DuN to Main[ain. Mortgagor shall maintain the Property in as good
condition a�d repair as required under the Prior Encumbrance(s), as defined below, which
standazd shall survive the release of the Prior Enwmbrances and cach of them.
2.3 Nuisance, Waste. Mortgagor shall not conduct or peRnit any rmisance
and shall not commit or suffer any waste on the Property.
2A Mortea¢ee's Rieht to Enter. Mortgagee and its agents and
representatives may enter upon the Property at all reasonable times upon reasonable prior written
no[ice (which shall in no event be Iess than twenty-four (24)houcs' advanee notice, except in the
event of an emergency) [o at[end 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, orovided the fixture is promptly replaced with another fixture
of at ]east equal quality.
2.6 Ordinances. Mortgagor shall comply with all laws, ordinances and
rcgulntions affecting the Property.
3. TAXES AND LIENS.
3.1 Pavment Mortgagor shall pay or caose to be paid before delinquency all
taxes and assessme�ts levied against or on account of the Property from and after the date of this
MoRgage, and shall pay or cause to be paid all claims for work done on or for services rendered
or material fumished to the Property. Mortgagor shal] 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 E�cumbrance(s), and the lien of taxes arid assessments not
due, a�d except as otherwise provided in Section 3.2.
855926]_4
3.2 RiEnt 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 bng as
Mortgagee's interest in the Property is not jeopardized. If[he Property is subjec[ed [o 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 ro Mortgagee in an amount sufficient to discharge the lien plus any interest,
costs, attomeys' fecs or other charges that could acerue as a result of a foieclosure or sale under
the ]ien. In any contest proceedings, Mortgagor will defend i[self and MoRgagee and will name
Mortgagee as an additional oblige under any surety bond, and Mortgagor shall satisfy any final
adverse jud�nent before enforcement against the Property.
3.3 Evidence of Pavment. Mortgagor shall promptly fumish 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[he ta�ces
and assessments against the Property.
4. PROPERTY DAMAGE INSURANCE.
4.1 Maintenance of Insurance. Mortgagor shall procure and maintain
policics of tire insurance with standazd extended coverage endorsements covering all
improvements on the PropeRg for replacement value, and in a� amount sufficient to avoid
applicatio� of any co-insurance clause and with loss payable to Mortgagee and Mortgagor, as
their respective i�terests may appeac Policies shall be written in amounts, in fortn, on terms and
with companies reasonably acceptable to Mortgagee. Mortgagor shall deliver to Mortgagee
certificates of coveiage from each insurer containi�g a stipulation that coverage will not be
canceled or diminished without a minimum of thiRy(30) days' written notice to Mortgagee.
4.2 Aanlication of Proceeds. Mortgagor shall promptly notify MoRgagee 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 fiReen
(15) days of the casualty. So long as there is no material default under this Mortgage or the
Development Agreement and subjec[ to the Prior Encumbrance(s), Mor[gagee shall make the net
insurance proceeds actually received by Mortgagee available to MoRgagor for the restoration
and repair of the Property in a manoer consistent with commereially prudent practice of sewred
parties in the holding and disbursement of such funds. If the proceeds are disbursed to
Mortgagor for restoration and repair, Mortgagor shal] repair or replace the damaged or destroyed
improvements in a good and workmanlike, liemfree manner, in compliance with applicablc law
and reasonably satisfactory to Mortgagcc.
4.3 Unexoired Insurance at Sale. Any u�expired insurance shall inure ro the
benefit of, and pass to, Ihe purchaser of the Property covered by this Mortgage at any foreclosure
sale of the Property.
5. WARRANTIES OF MORTGAGOR.
5.1 Ti[le. Mortgagor warrants that it holds the leasehold interest in the
Property free of all encumbrances other than this Mortgage, any Prior Encumbrance(s), as
855926]_4
defined below, and those restrictive cove�ants, casements and conditions currently of record o�
the Property.
5.2 Defense of Title. Subject to the matters described in paragaph 5.1,
abovc, Mortgagor warrants and will forever defend the title to thc Property against the ]awful
claims of all persons.
6. CONDEMNATION.
61 Aoolication of Net Proceeds. Subject [o the provisions of the Prior
Encumbrance(s), if all or auy part of the Property is condemned, at Mortgagor's electioq so long
as there is no material default under this Mortgage or the Development Agreement, Mortgagee
shall apply all or any poRion of the net proceeds of the condemnation actually received by
Mortgagee on the Obligations or disburse them [o Mortgagor for the restoration of the Property
to as near as practicable to its condi[ion prior ro such taking. The "ne[ proceeds" shall mean the
total amount available after payme�t of all reasonable costs, expe�ses and attomeys' fees
necessarily paid or inwrred by Mortgagor and Mortgagee in connection with the taking by
wndemnation. Sale of all or any part of the Property to a pumhaser with the power of eminent
domain in the face of a threat or the probability of the exercise of the power shall be trea[ed as a
taking by condemnation to which this Section shall apply.
6.2 Proceedines. If any proceedings in condertmation are filed, Mortgagor
shall promptty take such steps as may be necessary to defend the action and obtain the awazd.
7. TRANSFER BY MORTGAGOR.
7.1 Prohibi[ion of Transfer Without Consent Mortgagor shall not sell or
convey the PropeRy without the prior written consent of Mortgagee.
71 Effect of Consent Consent by Mortgagee to one transfer shall not
constitute a consent to o[her transfers or a waiver of[his Section. No transfer by Morfgagor shall
relieve Mortgagor or any other person of]iability for payment of the Obligations. 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 MoRgage or the Development Agreement without relieving Mortgagor or any
other person from liability.
8. RELEASE ON FULL PERFORMANCE. If all of the Obligations are fully
paid, performed and sa[isfied as and when due, MoRgagce shall execute and deliver to
Mortgagor a full release of this MoRgage.
9. DEFAULT. The following shall constitute "Events of Defaulf':
(a) Failure of Mortgagor or other person to pay any portion of the Obligations
when due, subject to any cure period expressly provided under this Mortgage or the
Development Agreement, as applicable.
essszs�a
(b) Failurc of Mortgagor to perfonn any other obligation within the period, if
nuy, allowed under this Mortgage or the Development Agreement, as applicable, for such
cure.
(c) Any other event of default�nder the Development Ag�eement.
(d) The commencement of any action to foreclose a�y one or morc of Ihe
Prior Encumbrances or the attachment to the Property of any other lien or encumbrance
not a Prior Encumbrance under this Mortgage.
]0. RIGHTS AND REMEDIES ON DEFAULT.
10.1 Remedies. Upon the ocwrrence and during the wntinuance of ariy Event
of Default, MoRgagee may exercise anyone or more of the following rights and remedies:
(a) Mortgagee may deelare the Obligations immediately due and payable.
(b) Mortgagee shall have the right to foicclose this Mortgage in accordance
with applicable]aw.
(c) If peemitted by applicable law, MoRgagee may obtain a judgment for any
deficiency remaining in the Obligations due to Mor[gagee aRer 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 co�stitutes personalty,
may exercise the rights and remedies of a secured party under the Uniform Commercial
Code, as adop[ed in the State of Wisconsin.
(e) Mor[gagee shal] have the right, with notice to MoRgagor, to teke
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 Obligations.
Mortgagee may exercise its dghts under this paragaph either in person, by agent or
through a receiver.
(� Mortgagee may pursue any and all other righ[s and remedies available
under the Development Agreement or applicablc law or equiry.
10.2 Attornevs' Fees: Exoenses. In the event suit or action is instituted to
enforce any of the terms of[his Mortgage, the Mortgagee shal]be entitled to recover its costs and
attomeys' fees at trial, on any appeal and on any petition for review, or other proceedings,
includi�g without limitation, any arbitratio� oc bankruptcy case or proceedings, in additio� to all
other sums provided by]aw.
ll. SECURITY INTEREST.
111 Fixture Filina. This instrument consti[utes a financing statemen[ filed as
a fixture filing in the Officia] Records of the Coanty Recorder of the county in which the
PropeRy is loeated with �espect to any and all fixtures included within the term Property as used
essszs�a
herein and with respect to any goods or other personal property that may now be or hereafter
bewme such fixtures.
11.2 Form of Morteape/Tax Kev Number. The Property is not homestead
property. The tax key number(s) of the Property aze as se[foRh on at[ached Exhibit A.
12. ENVIRONMENTAL LAWS. Mortgagor represents, wazrants and covenants to
Mor[gagee (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 Mor[gagor's
ownership or use of [he 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,unde�, in or about the Property, would require cleanup,
removal or some other remedial action ("Hazardous Substance") under any fcderal, state or local
laws, regulatio�s, ordina�ces, codes or rules ("E�vironmenta] 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 PropeRy, (c) that, without limiting the gecerality of the
foregoing Mortgagor has no knowtedge 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,
injunetive relief or cleanup costs in any govemmental or regulatory action or third-party claims
�elating to any Hazardous S�bstance; (e) that Mortgagor is not subject to any court or
administrative proceeding, judgnent, decree, order or ci[ation relating to any Hazardous
Substance', and (� that Mortgagor in the past has been, and at the present is, i� compliauce with
all Environmental Laws. Mortgagor shall indemnify and hold harmless Mortgagee, its directors,
officers, employees and agents from all loss, cost (inelading reasonable attomeys' fees and ]egal
expenses), liability and damage whatsoever directly or indirec[ly resulting from, ansing out of, or
based upon (i)the presence, use, stoiage, deposit, treatment, recycling or disposal, at any time, of
any Hazardous Substance to or from Ihe Property; (ii) the viola[ion or alleged violation of any
Environmental Law, pennit, judgnent or license relating to the presence, use, storage, deposit,
trcatment, recycling or disposal of any Hazardous Substanee to or from the Property, or (iii) the
imposition of any govemmental lien for the recovery of environmenta] cleanup costs expended
under any Environmental Law. Mortgagor shall immediately notify Mortgagee in writing of any
govemmental or regulatory action or third-party claim instituted or threatened in connection with
any Hazardous Substance on, iq under or about the Property.
13. ASSIGNMENT OF RENTS AND LEASES. Mortgagor assigns and transfers
to Mortgagee, as additional security for the Obliga[ions, 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.
Until Ihe occuerence 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
occucrence of such an event of default, and the giving of notice by Mortgagee to Mortgagor
declaring that constmctive possession of the Property is in Mortgagee, Mortgagor's license to
eollect 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 [his Mortgage and the Secured
Obligations. This assignment shall be enforceable and Mortgagee shal] be entitled to take any
855926] A
action to enfoice the assignment (including notice to the tenants to pay directly to Mor[gagee or
the commencement of a foreclosure actiou) 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 Uoon Successors and Assiens. Subject m the limitations stated
in this MoRgage on transfer of Mortgagor's interest, this Mortgage shal] be binding upo� and
inure to the benefit of the parties, their successors and assigns.
14.3 Exoenditure bv Morteaeee. If Mortgagor fails to comply with any
provision of this Mortgage within the time allowed (i�cluding any curc period allowed by this
Mortgage after notice from Mortgagee), Mortgagee may elect to take the required action on
MoRgagor's behalf, and any amount that MoRgagec expends in so doing shall be added to the
Obligations. Amounts so added shal] be payable on demand with interest from the date of
expenditure at the rate past due amoants undei [he Development Agreement bear, but not, i� a�y
event, at a rate higher than the maximum rate pecmitted by law. Such action by Mortgagee shal]
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 paRy may change its address for notices by written notice
to the other.
14.5 Invalid Provisions to Aifect No Others. If any of the provisions
contai�ed in the Development Agreement or this Mortgage shall be invalid, illegal or
unenforceable in any respect, the validity oF the remaining provisions in this MoRgage and Ihe
Note shall not be affected.
14.6 Chanaes in Writine. 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 [he change, waiver, discharge or termination is soughL Any
agreemcnt subsequently made by Mortgagor or Mortgagee relafing to this Mortgage shall be
superior to the rights of the holder of any intervening lien or enwmbrance.
14J Auulicable Law. The ]aw of the state in which the Property is located
shall be applicable for the puepose of construing and determining the validity of this Mortgage
and determining the rights and remedies of Mortgagee on default.
[SIGNATURE PAGE FOLLOWS]
855926]_4
IN WITIVESS WHEREOF, Mortgagor has executed [his Mortgage as of the date first
wntten above.
MORTGAGOR:
OSHKOSHINVESTORS,LLC
By: OI MANAGEMENT CORPORATION, i[s Managcr
By:
John Pfefferlc
Its: Presidcnt
By:
Arthur H. Rathjen
I[s: Sccretary
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
On[his day of , 2012 peisonally came before me John Pfeffede and -
Ar[hur H. Rathjen, [o me knowu to be [he Presiden[ and Secretary of OI Management
Coepora[ioq a Wisconsin corporation and Manager of Oshkosh Investors, LLC, a Wisconsin
limited liability company, and Uie persons who exewted [he foregoing insWment and
acknowledged[he same.
No[ary P�blic, State of Wisconsin
My commission
N5986R I
EXHBIT A TO MORTGAGE
Real Property
Lot Three (3) of CERTIF[ED SURVEY MAP NO. 1197 filed in Volume 1 of Certified Survey
Maps on Pagc I l97 as Document No. 602518; being part of Lots One (1) through Eleven (11) in
Moore's Subdivision, in the First Ward, City of Oshkosh, Winnebago Cou�ty, Wisconsin,
excepting therefrom that portion thereof heretofore conveyed to the City of Oshkosh for
riverwalk purposes by Deed recorded in Document No. 1612548.
TaxID Number0100400000
85592fi]_4
EXHIBIT B TO MORTGAGE
Prior Encumbrances
Mortgage in favor of First Business Bank in an amount not to exceed $7,SOO,OOQ plus interest,
fees, charges and protective advances.
855926]_0
Exhibit F
Projected Increment Schedule
[omitted from exhibit copy]
Exhibit F
Projected Increment Schedulc
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