HomeMy WebLinkAboutDevelopment Agreement / Oshkosh Investors DEVELOPMENTAGREEMENT
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This Development Agreement (the "AereemenP') is made as of the��day of October,
2012 by and betwecn the CITY OF OSHKOSH, WISCONSIN, a Wiscousi� municipal
coeporation (the "C�") and OSHKOSH INVESTORS, LLC, a Wisconsin limited liability
company(the "Dcveloner").
RECITALS
A. The Developer has acquired a 176 room hotel property]ocated at One Nor(h Main
Street in the City of Oshkosh, Wisconsin, which property is more partiwlarly described on
Exhibit A attached hereto Qhe"Pronert�').
B. The Developer and OI MANAGEMENT CORPORATION, a Wisconsin
corporation and the Ma�ager of Developer ("OI Com.") plans to remodel, repair, cehabilitate and
reconstruct the hotel located on the Property into a mid-to upper price full service hotel with
banqoet faeilities and convention service.
C. Pursuant to Wis. Stats. §66.1105 (the "Tas Increment Law"), the City may
exercise all powers �ecessazy and convenient to (i) carry out the purposes of the Tax Inerement
Law, (ii) cause certain project plans to be pcepazed, (iii) implement the provisions a�d effectuate
the pueposes of said project plans, and (iv) finance devclopment through the use of tax
incrementa] financing.
D. The Ciry has (i) created Tax Increment District No. 25 (City Center Hotel
Rehabilitation) (as amended from time to time, the "TIF District°), and (ii) approved a project
plan for the redevclopment of the TIF DisMct (as amended from time to time the "TIF District
Proiect Plad').
E. The Property is located within the TIF DisMet.
F. The Developer desires to own and operate the Property in accordance with the
provisions of this Agreement.
G. The Ciry desires to encourage economic developmont, expand the City's tax base,
and create new jobs within the City and within the TIF DisMet.
H. As an inducement to the Developer to undertake the Project and in ordcr to
achicve the objeetives of the TIF District, (i) the City may �ndertake certain publie
improvements, and (ii) the Ciry shall provide financia] assistance to the Developer, all in
accordance with the provisions of this Agreement.
L The City (i) believes the Project will further 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, and (ii) expects that the anticipated tax
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increment to be produced by the Project will be adequate to recover Ihe Project Cosls (as defined
below) within the life of the TIF Distriet.
1. The City finds it to bo in the public interest to utilize tax inerementa] financing to
assist the Dcveloper to undertake the Project, consistcnt with the terms and wnditio�s of this
Agreement.
K. Funds used to provide the Developer and OI Colp. with the tax incremental
financing fo� the Project Costs (the "CIF 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 willingness to provide
development assistance for the Project, the Project wo�ld not take place in the City.
M. The City finds that construction of the Project, and fulfillment of the terms and
conditions of this Development Agreement are in the vital and best inte�est of the City and its
residents and fulfill a public purpose in accordance with statc law.
NOW THEREFORE, in consideration of the focegoiug recitals that are incorpo�ated
hereto and made a part of this Agrecment, the promises, covenants and agreements contained in
this Agreement and other good and valuable consideration, the receipt and sufficiency of which
aze acknowledged, the Developer and lhe City promise, covenant and agree as follows:
l. Definitions. As used in this Agreement, the followi�g terms shall have the
following meanings:
(a) "Annual Tax Increment DeficiP' means the shortfall between (i) Tax
Increments reeeived by the City during any calendaz year, and (ii) the debt serviee
payable by the City during such calendaz year on all amounts disbursed under the OI
Development Agreement (as that term is defined bclow) for or on behalf of the Project,
lus those wsts payable to the City pursuant to Section 8 of this Ageement and Section 9
of the OI Development Ageement for such calcndaz year.
(b) "Annual Tax Increment Su l�s" means thc ex[ent to which (i) Tax
Increments received by the City in any cale�dar year exeeed (ii) the debt service payable
by the City during such calendar year on all amo�nts disbursed under the OI
Development Ageement for or on behalf the Project, plus Ihose costs payable to the City
pursuant to Section 8 of this Agrcement and Section 9 of the OI Development Agreement
for such calendar year.
(c) "C�' means the City of Oshkosh, Wisconsiq a Wiseonsi� municipa]
corporation, its successors and assigns.
(d) "Citv Contribution" means payments provided by Ihe City to the
Developer from f'uture Tax Increments in an amount not to exceed One Million and
No/100 Dollars ($1,000.000.00).
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(e) "Comnletion Date°means Juoe 3Q 2013.
(� "Develoner"means Oshkosh Investors, LLC, a Wisconsin limited liability
company, i[s successors and assiy,ris.
(g) "DefaulY' means the occurrence of any one or more of thc events
described in Section 16, below.
(h) °Exuiration Date° means the earliest to occur of(i) the termination of the
TIF District under Wis. SCaL §66.1]OS(7), or (ii) the termination of the OI Development
Agreement as a result of a defaolt by OI Corp. under thc terms of the OI Development
Ageement.
(i) "Guarantv" means the Developer's guaranty of increment rcvenue to be
received by the City, as mo�e specifically described in Section 11, below.
Q) "Lender" means the financial institutlon(s) providing the Loan to
Developer, which institution(s) shall be approved by the City.
(k) "Loan° means one or more loans to fund Project Costs iu the maximum
amount of Seven Million Fivc Hundred Thousand and No/100 Dollars ($7,500,000.00)
from Lender ro Developer.
(I) "Minimum Proiect CosP' means Fourteen Million and No/]00 Dollars
($14,OOQ000.00).
(m) "Pavment Date"means each November l.
(n) "ProiecP' means the acquisition, re�ovation, fumishiug and equipping of
the l76 room hotel Iocated on the Property into a mid- to upper price full service hotel
with banquet faeilities and conve�tion service.
(o) "Proiect Costs" means the tota] costs of acquiring ronovating fumishing
and equipping the Project, including all capital expenditures (or expendi[ures tha[ could
be trea[ed as capi[al expendiNres) and preliminary expe�ditures (sueh as azchitectural,
engineering surveying soil testing and similar costs that are incurred in connection with
the construction of the Project) and all other direct or indirect wsts of development of the
Project in accordanee with Ihe Projec[Plans.
(p) "Project Costs Itemizatiod' means a cost itemization of construction and
noneonstruction cost items identifying each eleme�t of[he Project and any contingency
and all other dicect or indirect costs of development of the Projeet in accordance with the
Project Plans.
(q) "Proiec[ Plans" mea�s final detailed plans and spccifications for the
Project including without limitation, the plans and specifications for the renovation of
thc hotel lobby, public meeting spaces, guest rooms, the repair and rep]acement, as
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necessary, of building sys[ems, and all other improveme�ts located or[o be loca[ed o�thc
Property.
(t) "Pronertv° means the parcel of land upon whieh the Project is loca[ed, as
legally described on Exhibit A.
(s) "Tax I�c�emenP' shall have the meaning set forth i� Wis. Stat.
§66.11 OS(2)(i).
(t) "Terzn" means the period of time commencing on the Closing Date and
terminating on the Expiration Date.
(u) "TIF DisMet° means Oshkosh Tax Incremental DisMct No. 25 (City
Center Hotel Rehabilitation).
(v) "TIF District Pioiect Plan" means the Project Plan for Tax Increment
Distric[ No. 25 as approved by the City's Common Counci] on May 22, 2012 a�d by the
Joint Review Board on J�ne 12,2012, as the same may be amended from time to time.
2. Project Overview. Developer and OI Co�p. will consWct a�d manage the Project
on the Property in accordance with the Projeet Plans. The City will provide a development
assistance grant in an amoont of Two Million Dollars ($2,OOQ000.00) to OI Coip. under thc
terms of a Development Agreement to be dated of even date herewith (the "OI Development
AqreemenY'), a copy of which is attached hereto as Exhibit B. The Developer will own and
operate the Project and the Property. To assist the Developer with the Project, the City will
provide the Contribution.
3. Ci[v Contribution.
(a) Subject to all the te�ms and conditions of this Ageement and applicable
law, the City will provide payments to the Developer solely from future Tax Increments
to assist with Project Costs; orovided, that the total aggrcgate amount of the City's
payments to the Developer shall not exceed One Million and No/100 Dollars
($1,000,000.00).
(b) As the sole source of payment fo�the City Contribution, the City agrees to
pay to the Developer sevcnty five percent (75%) of each Annual Tax Increment Surplus
attributable to the Property based on taxes accrued through the Expiration Date.
Payments under this Agceme�t shall be made o� Payment Dates solely from Tax
Increme�ts attributable to the Property actually received by the City by each Payment
Date. In no event shall the Ciry's payment to the Developer exceed the total Tax
Increment generated by the PropeRy. The City Contributioq as evidenced by this
Agreement, shall be a special and limited obligation of the City and not a general
obligatioa Payments under this Agreement shall be due in annual installments beginning
on the first Payment Date of the calendar year following the first tax year in which an
Annual Tax Increment Surplus exists and continuing each Payment Date [hereafter in a
tax year in which an Annua] Tax Increme�t Sucplus exists, until the eazlier of (i) the
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receipt by Developer of the maximum City Contribution of One Million and No/100
Dollars ($1,00Q000.00), or(ii) the Expi�ation Datc.
(c) The Devcloper acknowledges that as a resul[ of the special and limited
nature of the City's obligation to pay the City Contribution, the Developer's recovery of
the Ciry Contribution depeods upon various factors including but not limited tq fumre
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
Increment Law, and other factors beyond the City's and/or the Developer's control.
(d) The City eovenants to the Developer that unless the City Contribution has
been paid in full, the City shall not close the TIF Dishict prior to the Expiration Date.
(e) The City shall, a[ the Developer's request, provide to the Dcveloper an
accounting of the TIF District, including, but not limited tq the outstanding balance of
the City Contribution and the annual Tax Inerements received from the TIF DisMct.
4. Conditio�s Precedent to Citv's Obli at�. In addition to all other conditions
and roq�irements set forth in this Agreement, Ihe obligations of the City hereu�der (including
without limitation, the obligation of the City to pay the City Contribution) are co�ditioned upon
the satisfaction of each and every of the following conditions:
(a) O� or before the date of this Agreeme�t, the Developer shall provide the
City an opinion of its counsel reasonably acceptable to the City stating, among other
things, that the persons ezecuting this Agreement on behalf of the Developer are
authorized to do sq that 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 Agrcement, the Developer shall have
provided the City with (i) ecrti5ed copies of its Articles of Organization and Operating
Ageement, and (ii) a current Cer[ificate of Status issued by the Wisco�sin Depariment of
Fi nancial Instituti ons.
(c) On each Payment Date, no uncured default, or event which wi[h the giving
of notice o� lapse of[ime or both would be a default, shal] exist under Ihis Agreement.
(d) Within thirty (30) days following the date of this Agrcement, the City and
the Developer shall have entered into an agreement pursuant to which the Developer will
make payments to the Ciry for the Developer's use of the parking stmcture located
adjacent to the Property, substantially in the focm attached hereto as 8xhibit C.
(e) The Developer shall have (i) conveycd the real property described on
Exhibit D to the City (the "Riverwalk PazceP'), and (ii) granted such pennanent and
[emporary easements as are necessary 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 Aiverwalk Plan and Design
Goideli�es," as the same may be amended from time to time) which aro located on the
Riverwalk Pazcel, the Property or within the adjoining channel of the Fox River.
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(� The City and the Developer shall have entacd into an Operations
Agreement pursuant to which the Devcloper wil] assume the management, marketing
promo[ion and operation of[he Oshkosh Convention Cen[er.
(g) The Developer shall have executed the Mortgage and delivered it to the
City for�ewrding.
(h) The Developer shall have delivered tho subordina[ion agreement
referenced in Section 6(j) to the City.
Unless all conditions contained in this Section 4 aze satisfied within the time
periods for satisfaction of such conditions as set forth above or such conditions are waived in
wri[ing by the City within the time periods for satisfaction of such conditions as set forth above,
the City, at its option, exercised in its sole discretion, may terminate this Ageement, in which
event none of parties to this Agreement shal] have any further liability or other obligation to the
other paRies.
5. Rcoresentations. Warranties of Develooer. The Developer represents and
warrants to the City as follows:
(a) The Developer is a limited liability company duly organized and validly
existing and has the power and all necessary licenses, permits, and franchises to ow� its
assets and properties and to carry on its business.
(b) The Developer is duly licensed or qualified to do business in the State of
Wisconsin and all other jurisdictions in which failure to do so would have a material
adverse efFect on its business or financial condi[ion.
(c) The exeeution, delivery a�d perforsnance of this Agreement have been
duly authorized by all necessary limited liability company action of the Developer and
constitute Ihe valid and binding obligations of the Developer enforceable in accordance
with their terms, subject only to applicable bankrup[cy, insolvency, reorganization,
mora[orium, general principles of equity, and other similar laws of general application
affecting the enforceability of creditors' rights generally.
(d) The execution, delivery, and performance of the Developer's obligations
pursuant to Ihis Agreement will not violate or contlict with the Develope�'s Articles of
Organization or Operating Ageement or any indenture, instrument or ageement by
which the Developer is bound, nor will the executioq 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.
(e) There is no litigation or proceeding pending or affecting the Developer or
the Project, or, to the best of the Developer's knowledge, threatening the Developer or
the Projut, that would adversely affect the Project or the Developer or the enforceability
of this Agi�eement, the ability of the Developer to complete the Project or the ability of
the Developer to perform its obligations under this Ageement.
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(� To the best of the Developer's kciowledge, no default, or cvent which with
thc giving of �oticc or lapse of time or both would be a default, exists under this
Agreement, and the Developer is not in defaul[ (beyond any applicable no[ice and wrc
period) of any of its obliga[io�s under any other ageemen[ or instrument to which the
Developer is party or obligor.
(g) The Property is in compliance with all applicable materia] federal, state,
and loca] statutes, regulations, rules, aod/or ordinances, and with all ordeis, decrees, or
judgmcuts of govemmental authorities or courts having jurisdiction, relating to the use,
generatron, manufacture, collec[ion, treahnent, disposal, storage, control, removal, or
cleanup of hazardous substances (as that tcan is defined in Section 12, below). In the
event any hazardous substances are present in, at, on or about the Proper[y, the Developer
shall be responsible for removing or o[herwise monitoring or remediating such hazardous
substances as required by, and in full compliance with applicable law.
The representations and warranties contained herein shall be true and correct as of the
date hereof and as of the Closing Date.
6. Covenants of Develoner. 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
matedals fumished for the Project as and when due.
(b) On or before the Completion Da[e, the Projeet shall be completed (subject
to matters of,�orce majeure), and in all other respects be ready for occupancy and use by
the Developer.
(e) The Developer shall conform and comply with, and will eause the Project
to be in eonformance and compliance with, all applicable federal, state, loca] and other
laws, mles, regulations and ordinances, including without limitation, all wning a�d land
division laws, mles, regulations, and ordina�ces, all building codes and ordinanccs of the
Ciry, and all environmental laws, mles, regulations, a�d ordinances.
(d) The Developer shall cause the Project [o be constructed in a good end
workmanlike manner and substantially in acwrdance with the Project Plans and will
promptly w�rect any defects, structural or otherwise, in any construction or deviations
from the Project Plans. Construc[io� of the Projeet shall be completed free of all liens
and enwmbranecs except for those liens and eneumbrances permitted by this Ageeme�t.
(e) The Developer shall not, without 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) modi£y or
amend any ageement affecting the Project in a manner which would cause the agreemcn[
to be materially inconsistent with this Agreement.
(� The Developer shall permit the City a�d the City's construction consultant
or inspector, at all reasonable times, to inspect the Project and all matters relating to the
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development thereo£ Thc City assumes no obligation to the Developer for the
sufficicncy oi adequacy of such inspec6ons, it being acknowledged that such inspections
are made for the sole a�d scpazate beneSt of the City. The fact that the City may mnke
inspectio�s shall in no way �elieve the Developer from its duty to independently ascertain
that the construction of the Project is bei�g completed substantially in acwrdance with
the Project Plans.
(g) The Developer shall pay or caase to be paid prior to delinquency all
federal, state and local taxes in connection with the Project The Developer shall pay
when due al] operating expenses in connectio� with the Project.
(h) The Developer shall comply with the requiremeot to provide notification
of position openings u�der Wis. Stat. § 66.1105(6c), and, to Ihe extent notified by the
City prior to [he date of this Agreement, with any other applicable material restriction
affecting the TIF District and wi[h all laws, rules, regulations and ordinances generally
applicable to tax increment disMcts that are applicable to the Project.
(i) The Developer shall have in effect at all times, all permits, approvals and
licenses that may be requircd by any govemmental authority or nongovernmental entity
in connection with the development, construction, management and operation of Ihe
Project.
Q) Except foi a mortgage in favor of Le�dcr securing the Loan, the
Developer will not mortgage or otherwise place a lien or encumbrance on the Property
without first obtaining the City's consent, which co�sent [he City shall not �nreasonably
withhold; nrovided, that in no evcnt shall the City be required to conscnt to a mortgage,
lien or encumbrance which would be entitled to priority over the ]ien of the Mor[gage (as
defined in Section 1 ], below). The City hereby consents to that certain Mortgage granted
by Developer to the University of Wisconsin Oshkosh Foundation, Ine. dated and
recorded February 14, 2012 in the Winnebago County Register of Deeds as Doeument
No. 1594517, which mortgage was assigned to The Oshkosh Area Community
Foundation Co�poration ("OACF") by an Assignment of Mortgage dated and recorded
Februaty 14, 2012 in the Winnebago County Register of Deeds as Document No.
1594518; nrovided, tha[ OACF shall execute and deliver a subordination ageement in
favor of the City, in a focm acceptable to the City in the City's reasonable discretion.
(k) The Developer, at its cost and expense, shall operate, maintaiq repair and
replace (including without limitation, repairs and replacements of a eapital namre) all
elements of the ProjecL The Developer's maintenance and repair obligations shall
include both day to day maintenance and repair and extraordinary maintenance and repair
and shall include maintenance, repair and replacement of all elements or systems of the
Project as are necessary in order to maintain the Project The Developer will not defer
any required maintenance, repair or replaceme�t (including without limitatioq repairs
and replacements of a capita] nature) of any elemcnt of the Project and shall establish
adequate reserves therefor.
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(1) The Developer will not, without the City's consent, initiate any changc in
the zoning classification of a0 or any portion of the Property.
(m) T'he Developer will operate the Project substantially in accordance with
the final operating pro forma submitted to the City in conjunction with tho Project Plans,
and shall nol increase the amount of any management fees paid to Developer or any third
party beyond what is set forth in the operating pro forma without the City's consent.
(n) The Developer shall not remove OI Corp. as its manager nor shall it
permit the appointment of an additional manager.
7. Damaee: Destructioa In the event of fire, damage, or any other casualty to any
part of the Project, the Developer agees, at its cost and expense, to rebuild, repair and replace
the Project in the condition it was in immediately prior to the casualty. The fair market value of
the Project following reconstruction and/or repair by the Developer must be greater than or equal
to tbe fair market value of the Project immediately prior to the casualty. The Developer shal] not
be relieved of its obligations to make Guaranty Payments as such payments become due and
payable unde� Section 11, below, as a result of fire, co�demnation or other casualty or during the
period of repair or rebuilding and replacement of the Project.
If the Project is required to be rebuilt or repaired or replaced, then the Project shall be
rebuilt, repaired or replaced in accordance with plans and specifications prepared by the
Developer and approved by thc City. The Developer agrees to apply any necessary portion of
the insurancc proceeds to rebuild, repair and replace the ProjecL The proceeds of insurance shall
be disbursed for the replacement, rebuilding or repair of the Project purs�ant to the tenns and
conditions of a disbursing agreement among Ihe City, the Developer and the Title Company,
similar in form and co�tent to the Disbursing Agreement entcred into pursuant to Section 4,
above. Any amount required in excess of insurance proceeds for rebuilding, repair and/or
replacement of the Project shal] be paid by the Developer.
If the Project is not rebuilt, repaired and/or replaced following fire, damage or other
casualty, that shall not operate to release the Developer from its liabilities and obligations �nder
this Ageement, including but not limited to, its obligations to make Guuranty Payme�ts
purs�ant to Section 1 I, below.
8. Costs. The Developer shall each year during the Term of this Agreement pay all
reasonable and itemized fees, costs and expenses actually inwrred by [he City, including
administrative costs and attomeys' and eonsultants' fces, in connection with the creation and
maintenance of, and annual repoRing for, the TIF District, the development of the TIF DisMct
Project Plan, the negotiation and prepazation of this Ageement and all documents and
agreemonts executed in conneetion therewith; provided, however, that for costs incurred after the
first year, the annual amount of such payment shall not exceed Five Thousand and No/100
Dollars ($5,000.00), which amouut will inerease by one and one-half peroent (1.5%) each ycar
during Ihe Tenn. Developer shall also pay all reasonable and itemized fees, costs and expenses
aetually i�eu�red by the City, including attomcys' and consultants' fees, in wrmection with the
enforcement of its rights against the Developer �nder the TIF District Pmject Plan or this
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Agreement, including without limitation, thc cnforcement of such rights in any bankruptcy,
reorganization orinsolvency proceedinginvolvingthe Developer.
9. City's Rieht to Cure Default In case of a failure by the Developer to pmwre or
maintain insura�ce, or to pay any fees, assessments, charges or taxcs arising with respect to the
Project or to comply with the terms and co�ditions of this A�eement or any other document,
co�tract or ageement effecting the Project, the City shal] have the right, but shall not be
obligated, to effeet such insurance or pay such fees, assessments, charges oi taces or take such
action as is necessary to remedy the failure of the Corporation to comply with the documents,
contracts or agreements effecting the Project, and, in [hat event, the cost thereof shall be payable
by[he Developer to the Ciry.
]0. Real Estate Taaces and Assessments. The Developer shall pay timely to Ihe City
generally applicable property [aaces assessed and levied by the City on the Property under
applicable property tas laws, rulcs, rates, regulatious and ordinanees in effect Gom time to time.
Nothing in this Agreement shall impai� any statu[ory rights of the City with respect to the
assessment, levy, priority, collection, and/or enforoement of rea] estate property taxes. In
addition, the Developer agrees to pay timcly to the City all special assessme�ts that may be
assessed or levied in connection with the Property under the applicable special assessment laws,
rules, regulations, ordinances and rates in effect at the time said special assessments are assessed
orlevied.
ll. Incrcment Guarantv.
(a) The Developer hereby guaza�tees that commencing in 2016, Tax
Increments received during each calendaz year wil] 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 ProjecL In the event that there is an Annual Tax I�creme�t Deficit in any given
year, the City shall notify the Developer, iu writing tha[ there is an Annual Tax
Inerement Deficit, and the amount of the Annual Tax Inciement Deficit ("Deficit
Notice"). Within thiRy (30) days after the Deficit Notice, Developer shall pay the City
an amou�t equal ro Ihe Annual Tax Increment Deficit(a "Gaazantv PaymenP').
(b) Reven�e Generation. The Developer acknowledges that the Ciry
Contributio� is being pmvided by the City in ieliance upon the fumre generation of
general property taxes which will generate revenues for the City, including the revenues
necessary to repay the City's debt on all amounts disbursed for or on behalf of the Project
under the OI Development Ageemeut. During the term of thc TIF District, the
Developer shall use, and shall assure the use by any subsequent purchaser of, the
Property for commercial pufposes sufficient at all times to avoid an Amual Tax
Increment Deficit and shall take no action which would negatively affect the value of the
Property.
(c) Convevance to Third Parties. The Developer shall not sell, [ransfer or
wnvey the Property, any portion thereof or any improvements thereon, to any person or
entity unless such person or entity, for itself and its successors and assig�s, agees [o be
bound by the tcrms of this Section I 1 to the same extent as [he Developer.
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(d) The Developer's obligations under this Section 11 shall bc secured by a
Mor[gage ganted in favor of the City (the "MoReaee"), in the form attached hereto as
Exhibit E. The MoRgage shall be subordinate only to the mortgage of Lender securi�g
the I,oan.
(e) The Devcloper's obligations under this Section 11 shall also be secured by
the City's right of special assessment or by any other remedy available to the City by
statute. If'the Developer fails to pay timely any Guaranty Payment due under this Section
I 1, the City may, in addition to all other remedies available to it in law or equiry, levy the
amount of Ihe 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 incurzed costs for the payment or reimburscment of the Project Costs; (ii) agrees
that the amount of the special assessment, if levied consistent with this Agreement,
constitutes a proper exercise of the City's authority to ]evy special assessments in
accordance with Wis. Stat. §66.0701; (iii) agees that the allocation of the City's costs to
the Property is reasonable and commensurate with the special benefits provided to the
Property; (iv) agrees that the amount being assessed in acwrdance with this Agreement
does not exceed the value of the be�efits aceruing to the Property from the City's
expenditures ide�tified herein; (v) co�sents to the imposition and lery of such special
assessments; (vi) ag�ees that the approval of this Ageement by the Oshkosh Common
Council shall be sufficient to authorize thc levy of special assessments in accordance
herewith, and that no further procedural steps need be taken by the City; (vii) waives all
special assessment notices, hearings and appeals provided by Wis. Stats. §66.0701 or
§66.0703; and (viii) acic�owledges that the City is relying on the tenns of this Agreement,
and specifically the terms of this subsectioq that such reliance is reasonable, and that the
City's payment of its obligations to the Developer under this Agreement will be
detrimental to the City if the provisions relating to special assessments are not enforced
and that a failure to enforce such agreements would be inequitable.
(� The Developer's obligations ander this Section ll aze joint and several
with those of OI Co�p. under thc OI Corp. Development Agreement
12. Indemnifications. The Developer heceby indemnifies, defends a�d holds the City
harmless from and against all loss, liability, damage and expense, including rcasonable
attomcys' fees, suffered or inwrrod by the City to the exteut caused by the followi�g (a) [he
fail�re of the Developer or its conhactors, subco�tractors, agen[s, cmployees, or invitees to
comply with any environmental law, rule, regula[ion or ordinance, or any order of any regulalury
or administrative authority with respect thereto; (b) any release by [he Developer or its
contractors, subcontractors, agents, employees or invitees of petroleum products or hazardous
materials or hazardous substances oq upon or into the ProjecY, (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 co�tractors, subcootractors and/or agents to eomply with
any ]aw, rule, regulation or ordinance or any release of petroleum products or hazardous
materials or hazacdous substances as described in clauses (u) and (b) above; (d) claims arising on
the Prope�ty under the Americans with Disabili[ies Act, and any other laws, mles, regulations or
ordinances, (e) daims for third parties for injury to or death of any person on the Property; and
11
855Y?6) 4
(� the failure of the Developer m maintain, repair or replace as �eeded any portion of the
Project.
The tean"hazardous substances"means any tlammablo explosives, radioactive materials,
hazardous wastes, toxic substances, or related materials, including without limitatioq any
substances defined as or included in the definition of "hazazdous substances,° "hazardous
waste," "hazardous matcrials," or "toxic substances" under any applicable federal or state or
local laws or regulations.
13. Insurance. The Developec shall maintain the following insurance policies issued
by insurers with a rating of at least "A-" a�d in a financial size catcgory oF at least "X" as
established by A.M. Best Company arid licensed to do business in the State of Wisconsin: (i)
property insuranec on the PropeRy with coverage limits equal to the ful] replacement cost of the
building and contents, (ii) commeroial general ]iability insurance with limits of$1,OOQ000 per
occucrenec and SS,OOQ000 in the aggregate; (iii) statutory worker's compensation insurance; and
(iv) automobile liability insurance with a combined single limit of$1,000,000.
Each insurance policy shall rcq�ire the insorer to provide at least thiRy (30) days prior
written notiee to the City of any material change or cancellation of such policy.
14. Nondiscrimination. The Developer shall not use the Project in any manner to
pennit discrimination or restriction on the basis of race, creed, ethnic origin or identity, color,
gender, religion, mari[al status, age, handicap or nationa] origin, and the Developer shall
constmct and operate the Project in compliance with all laws, rules, regulations a�d ordinances
relating[o discrimination or any of the foregoing.
15. Pronertv Tax Challenees and Exemotions. The Developer shall not seek to
reduce the assessed value of the Property below an amount necessary to create the Tax
Increments set forth on Exhibit F. In addition, Ihe Developer shall not cause or pertnit Ihe
Property or any portion thereof to become tax exemp[ unless condemned by a govemmental
en[ity. The Developer will place a restriction in any deed conveying all or any portion of the
Property prohibiting any use or ownership of the Property which would cause the Property or
any portion thereof ro become tax exempt.
16. DefaWt The occurrence of any one or more of the following events shall
constitute a default hereunder.
(a) The Developer or any sucecssor shall fail to pay when due any Guaranty
Payment or o[her 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 and such
Guazanty Payment or other amount due is not paid timely by OI Corp.; or
(b) Any represeotation or warranty made by the Developer or any successor in
this Agreement or any documeut delivered by the Developer oc its soccessor pursuant to
this Ageement shall prove to have been false in a material way as of the time made or
given; or
12
ess�zev a
(c) Thc Developer or any successor shall breach oc fail to substantially
perform timely or observe timely any of its cove�ants or obligations under this
Agreement, and s�ch failure shall continue for thirty (30) days fo0owing notice thereof
from the City to the Developer (or such longe� period of time as is necessary to cure the
default as long as the Dcveloper has commenced the cure of the default within the thirty
(30) day period and is diligently pursui�g to cure the default and as long as the default is
cored not later than one hundred eighty (180) days following notice thereof kom thc
City); or
(d) The Project is �ot substantially completed on or before the Completion
Date(subjcct to matters offorce majeure); or
(e) The Developer shalL (i) become insolvent or ge�erally not pay, or be
unable to pay, or admit in writing its inabiliTy to pay, its debts as they mature; or (ii)
make a genera] assignment for the be�efit of cieditors or to an agent authorized to
liquidate any substantial amount of its assets; or (iii) become the subject of an order for
relief within the meaning of the United States Banlauptcy Code, or file a petition in
bankruptcy, for reorganization or to effect a plan or other arrangement with aeditors; or
(iv) have a petition or application filed against it in bankruptcy or any similar proceeding
and such petitioq application or proceeding shall remain undismissed for a period of
ninery (90) days or more, or the Developer shall file an answer to such a petition or
applicatioq admitting material allegations thereof, or (v) apply to a court for the
appoinhnent of a receiver or custodian for any of its assets or properties or have a
receiver or wstodian appointed for any of its assets or properties, with or without
consent, and such receivec shall not be diseharged within ninety (90) days a$er its
appointment; or(vi) adopt a plan of complete liquidation of its assets; or
(� An event of default occurs under the OI Development Agreement.
17. Remedies. Upon the occurrence of any default, without further notice, demand or
action by any kind by the City, the City may, at its option, pursue any one or more of thc
following remedies wncurrentty or successively:
(a) Cease all future payments of the City Contribution; or
(b) Purs�e any or all of the rights a�d remedies available to the City at law
anNor in equity against the Developer and/or the Project.
Except as may be otherwise specifically set forth herein, no remedy herein conferred
upon the City is intended to be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given under this Ageement,
and/or available ro the City uuder the TIF District Project Plan and any other covenants,
restrictions, dowments or instruments goveming the TIF Disfict, and/or now or hereafter
existing at law or in equity. No failure or delay on the part of the City in exercising any right or
remedy shall operate as a waiver thereof nor shall any single or partial exercise of any right
pieclude other or further exercise thereof or the exercise of any other right or remedy.
13
855926] 4
Notwithstanding any of the foregoing authorizatio�s, the City shall havo no duty or obligation
whatsocver with respect to any of the matters so authorized.
18. No Personal Liabilitv. Under no circumstances shall any counci] member,
official, director, attomey, employee, or agent of a party have any personal liability arising out of
this Ageement, and uo party shall seek or claim any such persooal ]iability.
19. Citv Authorization. The execution of Ihis Agreement by the City is authorized by
Common Counci] Resolutions No. 12-290 dated May 22, 2012 and 12-509 dated October 9,
2012.
20. Miscellaneous.
(a) Excep[ as otherwise specifically set forth herein, the respective rights and
liabilities of the City and the Developer in this Ageement aze not assignable or
delegable, in whole or in part, without the prior written consent of the other party.
Provisions of this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
(b) No waiver, ame�dment, o� variation of the terms of Ihis Agcement shall
be valid unless i� wri[ing a�d signed by the City and the Developer, and then only to thc
extent specifically set forth in writing.
(c) All material applicable agreements, representations, warranties, covena�ts,
liabilities and obligations made in this Agreement and in any document delivered
puisuant to this Agreement shall remain effective during the Term of this Agreement.
(d) All comm�nications or notices required or permitted by this Ageement
shal] be in writiog and shall be deemed to have been giveo: (i) upon delivery to an officer
or the person entitled to such notice, if hand delivered, or(ii)two business days following
deposit iu the United States Mail, postage prepaid, or with a nationally recognized
ovemight eommercial carrier that will certify as to the date and time of delivery, air bill
prepaid, or (iii) upon [ransmission if by facsimile, a�y such communication or notice
shall be addressed as follows, unless and until any such party notifies the o[her in
accordance with this section of any change of address:
If to the Ciri: City of Oshkosh
City Attomey's Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI, 54903-1130
Atm: City Attomey
Facsimile No. (920) 236-5106
14
tl5592h] 4
With a coov to: Godfrey & Kahn, S.C.
100 West Lawrence Street
Appleton, WI54911
A[tn: Michael J. Lokensgard
Facsimile: (920) 8303530
If ro the Develooee: Oshkosh Investors, LLC
One NoRh Main Street
Post Office Box 1203
Oshkosh, WI54903-1203
Atfi: Rich Batley
Facsimile: (920)
With a coov to: Reff; Baivier, Bermin�am &Lim, S.C.
217 Ceape Avenue
Post Office Box I 190
Oshkosh, WI54903-1190
Attn: Russcll J. Reff
Facsimile: (920) 231-0035
(e) This Agreement arid the documents executed parsuant [o this Ageement
contain the e�tiro understanding of the parties with respect to the subject matten c�reof.
There are no restrictions, promises, warranties, covenants or understandings other than
those expressly set forth in this Ageement and documents executed in connection with
this Ageement. This Agrecment and the documents executed in conneetion herewith
supersedc all prior negotiations, agreements and undertakings between the parties with
respect to the subject matter hereof.
(� This Agreement is intended solely for the benefit of the Developer and the
City, and no third party (other than successors and pennitted assigns) shall have any
rights or interest in any provision of this Agrcement, or as a result of any action or
inaction of the City in connec[ion therewith. Without limiting the foregoing no
approvals given pursuant to this Agreement by the Developer or the City, or any person
actiug o� behalf of either of them, shall be available for use by any contractor or other
person in any dispute with the eonstruction of the Pioject.
(g) This Agreement shal] be govemed by, and coustrued and interpreted in
accordance with, the laws of the State of Wisconsin applicable to contracts made and
wholly perfoaned within the State.
(h) This Agreement may be executed i� several counte�parts, each of which
shall be deemed a� original, but such counterparts shall together eonstitute but one in the
same Ageement. Facsimile signatures shall be deemed origina] signatures for all
purposes of this Agreement.
(i) A�y provision of this Agreement which is prohibited or unenforceable in
auy jurisdiction shall, as to such jurisdiction, be in effect to the cxtent of such prohibition
15
ass9za�_a
or enforceability without invalidating thc remaining provisions of this Agreement in such
jurisdiction or affecting the validity or enforocment of any provision i� any other
jurisdiction.
(j) Nothing contained in this Ageement or any other documents executed
pursuant to this Agreement shall be deemed or construed as creating a partnership orjoint
venture between the City and the Developer or betweeu the City and any other persoq or
cause the City to be responsible in any way for the debts or obligations of the Developer
or any other person or cause Ihe Developer [o be responsible in any way for [he debts or
obligations of the City or any other person. Each party wpresents, warrants and agrees,
for itself and its successors and assigns, not to make any asseRion inconsistent with its
acknowledgement or with the acknowledgement and agreement contained in the
preceding sentence in the eve�t of any action, suit or proceeding at law or in equity, with
respect to the transactions which are the subject of this Ageement and this paragraph
may be pleaded and construed as a complete bar and estoppel against any assertion by or
for a party a�d its successors and permitted assigns, that is inconsistent with its
acknowledgement aud agreement contained in the preceding sente�ce.
(k) Time is of the essence as to each and every obliga[ion or agreement
contained in[his Agreement.
(1) [f any party is delayed or prcvented from timely performing any ac[
required under this Agreement other than the payment of money, by reason of fire,
earthquake, war, terrorist act, flood, riot, strikes, labor disputes or shortages, govemment
restrictions, judicia] order, public emergency, or other causes beyond the reasonable
control of the party obligated to perform, the performance of such act shall be excused for
the period of such delay and the time for the perfortnance of any such act shall be
extended for a period equivalent to such delay.
(m) No disburseme�[ [o or on behalf of OI Corp. pursuant to the OI
Developmont Agreement or any portion of the City Contribution shall preclude the City
from declaring a default hereu�der and pursuing its remedies hereunder in the event the
Devcloper tails to fulfill its obligations hereunder or cure any such default.
(n) A memoraudum of this Agreement may be recorded i� the office of the
Register of Deeds of Winnebago County, Wisconsin, it being understood by the parties
that until Expiration Date, this Agreement will run with the land and will be binding�pon
the Property. This Agreement inures to the benefit of the City and its successors and
assigns.
(o) The headings to this Agreement are for reforence only and are not
intended to modify any of the terms and conditions of this Agreement.
(p) Nothing contained in this Ageement is intended to or has the effect of
releasing the Developer from compliance with all applicable ]aws, rules, regulations and
ordinances in addition to compliance with all the terms, conditions and covenants
contained in this Agreement.
I6
assyznr s
(q) This Agreement is the prod�ct of¢egotiation between the paRies hcreto
and no tcrm, covenant or provisiou herein or the failure to includc a term, covenant or
provision shall be construed against any party hereto solely on the basis that one party or
the other drafted this Agreement or any term, covenant or condition contained herein.
(r) Upon m�tual consent of the parties to this Agreement, which conse�t any
party can withhold in its sole discretion, the parties can agrce ro submit disputes arising
under this Agreement to alternative dispu[e resolution.
(s) EACH PARTY TO THIS AGREEMENT HEREBY WAIVBS TRIAL BY
JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM,
WHETHER CONTRACT OR TORT, AT LAW OR EQUITY, ARISING OUT OF OR
IN ANY WAY RELATED TO THIS AGREEMENT.
(t) All amounts not paid when d�e hereunder shall beaz interest at the rate of
twelve percent Q 2%).
21. Other Anorovals. ln addition to any approvals required under this Ageement, the
Developer shall be required to obtain all approvals, co�sents, and licenses as may be required by
any govemmental or no�-governme�tal authority in connection with the Project, including
without limitatioq all building permits, Project Plan approvals and zoning appmvals. The
Developer's compliance with the terms of this Ageement shall not relieve the Developer from
complying with all applieable federal, state and local laws, rules, regulations and ordinances in
cormection with the Pioject and to the extent any govemmental or non-govemmental entity
imposes different or more restrictive conditions on the Developer or the Project, compliance by
the Developer with the terms of this Agreement shall not relieve Ihe Developer from wmplying
with such different or more restrictive conditions. Likewise, any less restrictive conditions
imposed on the Developer or the Project by any governmental or non-govemmental authority
shall not relieve the Developer or the Project from complying with all of the terms and
conditions of this Agreement.
[SIGNATURE PAGES FOLLOW]
17
65542fi9 4
IN WITNESS WHEREOF, the parties have executed this Agecment as of the date frst
abovc written.
CITY OF OSHKOSH, WISCONSIN
By: �/� �fl-�.�'GC�
�azk A. Rohloff
Its: City Manager
By: �,
Pamela R. Ubrig �
Its: City Clerk
Approve s to form:
B
} n A. Lo
Its: Ctty Attomoy
I hercby certify that the necessary provisions have been made to pay the liability which
will accrue under this Agrecmen[.
LL�, . L i �0���
Peggy S e nq inance Dirwtor
STATE OF WISCONSIN )
) SS
COUNTYOF WINNEBAGO )
t�' �
Personally came before me this �� day of �(�� , 2012, the above-named Mark A.
Rohloff and Pamela R. lJbrig to me known to be the City Manager and City Clerk of the City of
Oshkosh, Wiswnsin and the perso� who executed the foregoing dowmen[ and acknowledged
[he samc.
`�-�/ /
/�7Kf.L- :.-�I�'i (�CL-Ch
* f<G�l���l ��Ii'!I('i C C
Notary P�b�iq State of I ni i � c [�i�Si�)
My commission: �-.1 y-/ ;
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE]
18
R55026J 4
OSHKOSH INVESTORS, LLC
By: OI MANAGEMENT CORPORATION, its Manager
By:
�Pfefferle
Its: P �den[
BY: �� l i t
Arthi . Rathje�
Its: Secretary
✓
STATE OF WISCONSIN )
) SS �
COUNTY OF WINNEBAGO )
On this�day of O f t c�^�✓ , 201? persooally camc before me John Pfeffede and
Arthur H. Rathjen, ro me known [o be [he Presiden[ and Secretary of OI Management
Corporation, a Wiscousin corporation and Manager of Oshkosh Iuvestors, LLC, a Wisconsin
limi[ed liabiliry company, and the persons who executecl the focegoing ins[rument and
acknowledged the same.
. JSS�LL•�:�9F,^:
. ¢�:' "o�-
;' �OTAR y �'�, o[ary Public, Stat o Wis o n
' F n �� Mycommission i YI .�
C �r���.. L'��L,� I� :
'.N�.�....._....'�'��
. Cr :
19
d(Sry]R 0
Exhibit A
Property Legal Dcscrip[ion
Lot Three (3) of CERTIFIED SURVEY MAP NO. 1197 filed in Volume 1 of Ccrtified Survey
Maps on Page !197 as Document No. 602518; being part of Lots One (I) through Eleven Q 1) in
Moore's Sabdivision, in the First Ward, City of Oshkosh, Wi�ncbago County, Wisconsiq
excepting therefrom that portion thereof heretofore conveyed to the City of Oshkosh for
riverwalk purposes by Deed recorded in Dowment No. 1612548.
TaxID Number0100400000
xssvza�_q
Exhibit B
OI Developmcnt Ageement
[attached]
855926] 4
DEVELOPMENTAGREEMENT
This Development Agreement(the "AffeemenP') is madc as of thc day of October,
2012 by and betwccn thc CITY OF OSHKOSH, WISCONSIN, a Wisco�sin municipal
corporation (the "Cit ') and OI MANAGEMENT CORPORATION, a Wisconsi� corporation
(the"Develooer").
RECITALS
A. The Developer is the manager of OSHKOSH INVESTORS, LLC, a Wisconsin
limited Iiability company ("Oshkosh Investois"). Oshkosh Investors has acquired a 176 room
hotel property located at One North Main Street in the City of Oshkosh, Wisconsiq which
property is more particuLazly described on Exhibit A attached hereto (the"Prooedv").
B. The Developer and Oshkosh Imestors plan to remodel, repair, rehabilitate and
reconstruct thc hotcl locatcd on the Property into a mid- to upper price full service hotel wich
banquet facilities and convention service.
C. Pursoant to Wis. Stats. §66.1105 (the "Tax Incremcnt Law"), the City may
exeroise all powers necessary and conve�ient to (i) carry out the pucposes of the Tax Increment
Law, (ii) cause certain project plans to be piepared, (iii) implement the provisions and effectuate
the pucposes of said project plans, and (iv) finance development through the use of tax
incremental financing.
D. The City has (i) cwated Tax Inaement District No. 25 (City Center Hotel
Rehabilitation) (as amended from time to time, the "TIF DistricP'), and (ii) approved a project
plan fo[ the redevelopment of the TIF DisMct (as amended from time to time the "TIF District
Proiect Plan").
E. The Property is located within the TIF District.
F. The Developer and Oshkosh [nvestors desire to redevelop the Property in
accordance with Ihe provisions of this Ageement.
G. The City desires to encourage economic development, expand the City's tax base,
and create new jobs within the City and within[he TIF Distric[.
H. As an inducement to the Developer and Oshkosh [nvestors to undertake the
Project aod in order to achieve the objectives of the TIF Disfiet, (i) the City may undertake
certain public improvements, arid (ii) the City shall provide Soancial assistanee to the Developer,
all in accordance with the provisions of this Ageement.
I. The City (i) bclieves the Project wiLl further the goals of the TIF District by
increasing the value of the Property for property tax pu�poses, providing a valuable service to the
community and creating local employment opportoniNes, and (ii) expects tk�at thc anticipated tax
ssaoo�a_is
increment to be produccd by the Project will be adequate to recover the Project Costs (as de5�ed
bclow) within the life of the TIF Districl.
J. The City finds it to be i� the public intecest to u[ilize tax incremental financing lo
assist Ihe Developer and Oshkosh Investors to undertake the Project, consistent with the tertns
and conditions of this Agrecmcnt.
K. Funds used to provide the Developer and Oshkosh Investors with the taz
ineremental financing for the Project Costs (the "TIF Funds") shall be caised (i) by City
bortowing and/or(ii) from tax inwme generated in the TIF District.
L. The City and Developer agree that but for the Ciry's willingness to provide
development assista�ee for thc Project, the Project would not take place i� the City.
M. The City finds that construction of the Project, and fulfillment of the terms and
conditions of this Development Ageement are i� the vital arid best intcrest of Ihe City and its
residents and fulfill a public puipose in accordance with state law.
NOW THEREFORE, in consideration of the foregoing recitals Ihat are incorporated
hereto and made a part of this Agecment, Ihe promises, covenants arid agreements contained in
this Agreement and other good and valuable wnsideration, the receipt and sufficiency of which
are acknowledged, the Developer aod the CiTy promise, covenant and agree as follows:
l. DeSnitions. As used in this Agreement, the following terms shall have the
following meanings:
(a) "Annual Tax Increment DeficiP' means the shortfall between (i) Tax
Inerements received by the City during any calendar year, and (ii) the debt service
payable by the City during such calendar year on all amounts disbursed under this
Agreement for or on behalf of the Project, plus those wsts payable to the City pursuant to
Section 9 of this Agreement and Section 8 of the Oshkosh Investors Development
Agreement(as that term is described below),for such calendar year.
(b) "Citv" means the City of Oshkosh, Wisconsin, a Wisconsin municipal
wtporation, its successors and assigns.
(c) "Closine Date" means the da[e on which all conditions precedcnt to the
funding of[he Grant have been satisfied or waived by the City, aftec which the City shall
deposit the Grant funds into escrow for subsequent disbursement as described under
Section 4,below.
(d) "Comnle[ion Date"means June 3Q 2013.
(e) "Develoner" means OI Management Corporarion, a Wisconsin
cocporation, its successors and assigns.
2
69800�4_13
(fl "DefaulP' means [he occucre�ce of any onc or more of Ihe events
described in Section 17, below.
(g) "Disbursi�e Ae�eemenP' mearis the Disb�rsing Agrccment described i�
Section 4,below, in the form attached hereto as Exhibit B.
(h) "Equitv Contributiod' means a contribution to the Project by Oshkosh
Investors in an amount of not less than Three Million Fivc Hundred Thousand and
No/100 Dollars (53,SOQ000.00).
(i) "Exoiratio� Date° means the earliest to occur of(i) the termination of the
TIF District under Wis. Stat. §661105(7), or (ii) the repayme�t by thc Developer of the
Grant as a result of an event of default pursuant to Section 18, below.
Q) °GranP' means a development assistance grant in an amount of Two
Million and No/100 Dollacs ($2,000,000.00) to be provided by the City to the Developer
under the tenns and conditions of this Agreement.
(k) "Guarantd' means the Developer's guaranry of increment reverme to be
received by the City, as mo�e specifically described in Section 12,below.
(I) "Lende�" means the fina�cial institution(s) providing the Loan to
Developer, which institution(s) shall be approved by the City.
(m) "Loan" means one or more ]oans to fund Project Costs in the marimum
amount of Seven Million Five Hundred Thousand and No/100 Dollazs ($7,500,000.00)
from Leuder[o Oshkosh Investors.
(n) "Minimum Pioiect CosP' means FouReen Million and No/]00 Dollars
($14,000,000.00).
(o) "Oshkosh Investors Development AereemenY' means that certain
Development Agreement betweeu the City and Oshkosh Investors, in the form attached
hereto as Exhibit E, pursuant to which the City will make up to One Million Dollazs
(31,OOQ000.00) in "pay as you go" contdbutiuns uf Tax Increment [o Oshkosh Investors
during[he Temi.
(p) `Proicct° means the acquisition, renovatioq fumishing and equipping of
the 176 room hotel located on the Property into a mid- to upper price full servicc hotel
with ba�quet facilities and convention service.
(q) "Proiect Costs" means the total costs of acquiring renovating, furnishing
and equipping the Project, including all capital expenditures (or expenditures that could
be treated as capital expenditures) and preliminary expenditures (such as architectural,
engineering, surveying, soil tcsting, and similaz costs that are incuired in 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.
3
69800]4_13
(r) "Proiect Costs Itemizatiod' means a cost itemization of construction and
nonconstruction cost items identifying each element of the Project and any contingency
and all other direc[ or indirect cos[s of development of the Pioject in accordarice with [he
Project Plans.
(s) "Proiect Plans" means final detailed plans and specifications for the
Projec[ including, without ]imitation, the plans and specifications for the �euovation of
the hotel lobby, public meeting spaces, guest rooms, the repair and replacement, as
necessary, of building systems, and all other improvements located or to be located on the
PropeRy.
(t) "PronertW' means the parcel of land upon which the Project is located, as
legally described on Exhibit A.
(u) "Tax IncremenP' shall have tho meaning set forth in Wis. Stat.
§66.1105(2)(i).
(v) "Term" means the period of time commencing on the Closing Date and
terminati�g on the Expiration Date.
(w) "T1F DistricP' means Oshkosh Tax Incremental District No. 25 (City
Center Hotel Rehabilitation).
(x) "TIF District Proiect Plan" means the Project Plan for Tax Increment
DisMct No. 25 as approved by the City's Common Council on May 22, 2012 and by the
Join[ Review Board on June 12, 2012, as the same may be amended from time to time.
(y) "Title Comnand'means Schmitt Title, LLC or such other title company as
Ihe Developer and City may designate by mutual ageement 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 the Developer with the Project, the City will
provide the Grant, which will be disbursed pursuant to the Disbursing Agreement The
Developer will cause Oshkosh Inves[ors to make the Equity Contribu[ion and will provide or
obtain any addi[ional money required to complece the Project.
3. Citv GranL To assist the Developer with the Project, the City shal] make a
development assistance grant in an amount of up to Two Million Dollars ($2,OOQ000), so long as
the terms and conditions set forth in [his Ageement aze met The City wil] provide or obtain
any money required to make the Grant through (i) City borrowing and/or(ii) from tax increment
ge�erated in the TIF District.
4. Disbursement of Grant Funds. On the Closing Date, the City will deposit the
Grant funds into an escrow account designated for [he Pioject, to be held by the Title Company
and disbursed in accordance with the Disbursing AgeemenL All interest eamed on the Grant
funds in the escrow account shall accrue ro the benefit of the City and shall be paid ro the City.
The Disbursing Agreement shall require that the Fquity Contribution (after reduction for such
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amounts already expended as described and evidenced pursuant to Scction 5(�, bclow) and thc
Loan proceeds be deposited to the escmw account and disbursed prior to the disbursement of the
GranL The Grant funds shall be disbursed to pay for Project Costs pursuant to thc terms and
conditions of ihe Disbursi�g Ageement, which shall be Ihe Title Company's standard fortn for
disbursement of construction loans, with such changes as the Developer and City may agree
upoa The Disbursing Agreement also will state that in the event of a casualty, the City will
continue to disburse the Grant funds only if'the Developer and/or Oshkosh Investors decides to
reconstruct the Projec[ in accordance with the Project Plans and the insurance proceeds are
disbursed prior to the disbursement of the balance, if any, of the Grant funds.
5. Conditions Precedent to Ci[ds Oblieations. In addition to all other conditions
and requirements set forth in this Agreement, the obligations of the City hereunder (including
without limitation, the obligation of the CiTy to disburse the Grant) are w�ditioned upon the
satisfaction of cach and every of the followi�g conditions:
(a) On or before the date of this Agreement, the Developer shall provide the
City an opinion of counsel reasonably aceeptable to the City stating among other things,
that thc persons executing this Agreement on behalf of the Developer are authorized to do
so, that the Developer has duly authorized entry into this Agreement, and other matters as
are reasonably requested by the City.
(b) On or before the Closing Datq the Developer shall have provided the City
with (i) certified copies of its Articles of Incocporation and Bylaws, and (ii) a current
Certificate of Status issued by the Wisconsin Depactment of Financial Institu[ions.
(c) On or bcforc thc 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 ]ess than the Minim�m Project Cost, shall be certified
by Ihe Developer and Hoffrnan, LLC as accurate and complete, and shall be otherwise
reasonably acceptable to [he City.
(d) O� or before the Closi�g Date, the Developer, at its sole cost, shall
provide the City with the Project Plans, which Project Plans must be reasonably
acceptable in all respects to the City.
(e) On or before the Closi�g Date, the Developer a�d/or Oshkosh I�vestors
shal] have entered into a construction contract with Hoffman, LLC for the Project.
(� On or before the Closing Date, the Developer shal] have provided Ihe Title
Company with evidence reasonably satisfactory to the City showing the amounts
expended by the Developer for Project Costs (which amounts shal] be credited toward the
Equity Contribution), and the Developer shall deposit the balance of the Equity
Contribution (if any) with the Title Company.
(g) On or before the Closing Date, the Developer, the Ciry, a�d the Title
Company shall have agreed on the changes to be made to the Title Company's standard
fortn for disbursement of construction ]oans in prepari�g the Disbursing Agreement
referted to in Section 4, above.
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(h) On the Closing Date, no uncured defauly or event which with the givi�g
of notice or lapse of time or both would be a default, shall exis[under[his Agreement.
(i) On oc before the Closing Date, the City and Oshkosh Investors shall have
entered into an agreement pursuant to which Oshkosh Investors will make payments to
the City for the use of the parking structure located adjacent to the Property, substaotially
in the foari attached hereto as Exhibit C.
Q) On or before the Closing Date, Oshkosh Investors shall have (i) comeyed
the real property described on Exhibit D to the City (the "Riverwalk PazceC'), and (ii)
ganted such permanent and temporazy easements as are necessary 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 Coaidor
Rivenvalk Plan and Design Guidelines," as the same may be amended from time to time)
which are ]ocated on thc Rivcrwalk Parocl, thc Property or within thc adjoining channcl
of the Fax River.
(k) On or before the Closing Date, the City and Oshkosh Investors shall have
cntcred into an Opera[ions Agreement pursuant to which Oshkosh Investors will assumc
the management, mazketing promotion and operation of the Oshkosh Convention Center.
(1) On or before the Closing Date, Oshkosh Investors shall have delivered the
subordi�ation agreement referenced in Section 7(j), below to the City.
Unlcss all wndi[ions wntained in this Section 5 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 sa[isfaction of such conditions as set forth above,
the City, at its option, exercised in its sole discretion, may terminate [his Ageeme�t, in which
event none of parties to this Ageeme�t shall have ariy furthe� liability or other obligation to the
other parties.
6. Reuresentations Wazranties of Develo�er. The Developer represents and
warca�ts to the City as follows:
(a) The Developer is a corporation duly incorporated and validly existing and
has the power and al] necessary licenses, permits, and franchises to own its assets and
properties and to caery on its business.
(b) The Develope�is thc solo managcr of Oshkosh Investors.
(c) The Developer is duly lice�sed or q�alified to do business i� the State of
Wisconsin and all other jurisdictions in which failure [o do so would have a material
adverse effect on its business or financial condition.
(d) The executioq delivery and perfoemance of this Agreement have been
duly aothorized by all necessary corpoiate action of the Developer and eonstitute the
valid and binding obligations of the Developer enforceable in accordanee with their
terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium,
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general principles of equity, and other similar laws of general applica[ion affec[ing the
e�forceability of creditors' rights generally.
(e) The exewtion, delivery, and performance of the Developer's obligations
pursuant to this Agreement will not violate or conflict with the Developer's Arcicles of
Incoiporation or Bylaws or any indenture, instrument or ageement by which the
Developer is bound, nor will the execution, delivery or performance of the Developer's
obligations pursuant to this Agreement violate or conflict with any law applicable to the
Developer or to the Project.
(� There is no litigation or proceeding pending or affecting the Developer or
Ihe Projec[, o�, to the best of tho Developer's la�owledge, threatcning the Developer or
the Project, that would adversely affect the Project or the Developer or the enforceability
of this A�,rzeement, the ability of the Developer to complete the Project or the ability of
the Developer to perfortn its obligations under this Agreement.
(g) The Project Costs Itemization accurately reflects all Project Costs that will
be incurted in the acquisition, renovation, fumishi�g and equipping of the Project, and
the Title Company shall be entitled ro rely on the Project Costs Itemization. The
Developer knows of no circumstances presently existing or likely to ocwr which would
or could be expected to result in materia] variation or deviation from the Pcoject Costs
Itemization.
(h) To the best of the Developer's knowledge, no default, or event which with
the giving of notice or lapse of timo or bo[h woold be a default, exists under this
Agreement, and the Developer is not in default (beyond any applicable notice and cure
period) of any of its obligations under a�y other ageement or instrument to which the
Developer is party or obligor.
(i) The Property is in compliance with all applicable material federal, state,
and local statutes, regulations, rules, and/or ordinances, and with all orders, decrees, or
judgments of govemmental authorities or courts having jurisdictioq relating to the use,
geueiation, manufacture, collection, treatment, disposal, storage, control, removal, or
cleanup of hazardous substances (as that term is defined in Section 13, below). In the
event any hazardous substances are piesent in, at, o0 or about the Property, the Developer
shall be responsible for removing or otherwise monitoring or remediating such hazardous
substanees as required by, and in full compliance with applicable]aw.
The representations and warranties contained herein shall be true and correct as of the
date hereof aod as of the Closing Date.
Z Covenants of Develonec During the Tevn of this Agreement, the Developer
covenants to the City as follows:
(a) The Devcloper and/or Oshkosh Investors shall pay for all 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 completed (s�bject
to matters of jorce majeure), and in all other respects bc rcady for occupancy and use by
the Developer and/or Oshkosh Inves[ors.
(c) The Developer shall eonform and comply with, and will cause the Project
to be in conformance and complianee with, all applicable federal, state, local and other
laws, rules, regulations and ordinances, including without limitation, all mning and land
division laws, mles, regulatio�s, and ordinances, all building codes and ordinauces of the
City, and all e�vironmenta] laws, mles, cegulations, and ordinances.
(d) The Developer shall cause the Project to be constructed in a good and
workmanlike manner and substantially in accordance wilh the Project Plans and will
promptly correct any defects, structural or otherwise, in any construction or deviations
from the Projeet Plans. Construction of the Project shall be completed free of al] liens
and encumbrances except for those]iens and encumbrances peRnitted by this Agreemen[.
(e) The Developei shall no[, aud shall not permit Oshkosh Investors to,
without the prior written consent of the City (i) approve any change or modifieation in
the Project by change order or otherwise that would cause the Project Costs to be less
than the Minimum Project Cost, o� (ii) modify o� amend a�y agreement affecting the
Project in a manner which would cause the agreement to be materially inconsistent with
[his Agreement.
(� The Develope� shall permit the City and the City's coostruction co�sultant
or inspector, at all reasonable times, to inspect the Project and aIl matters relating to the
developme�t [hereof. The City assumes no obligation to [he Developer for [he
sufficiency or adequacy of such inspections, it being acknowledged that such inspections
aze made for the sole and separate benefit of the Ciry. The fact that the City may make
inspections shall in no way relieve the Developer from its duTy to i�dependently ascertain
that the construction of the Project is being completed substantially in accordance with
the Project Plans.
(g) The Developer shall pay or cause to be paid prior to delinquency all
federal, state and local taxes in connection with the Project. The Developer shall pay
when d�e aIl operating expenses in connection with the Project.
(h) The Developer shall comply with the requirement to provide notification
of position openings undei Wis. Stat. § 66.1105(6c), and, to the extent noti5ed by [he
City prior to the date of this Agreement, with any other applicable material restriction
affecting the TIF District and with all laws, rules, regulations and ordinances generally
applicable to tax increment districts that are applicable to the Project.
(i) The Developer shall have in effeet at all times, all permits, approvals and
licenses that may be required by any govemmental authority or nongovemmental entity
in connection with the development, co�struction, management and operation of the
Project.
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(j) Except for a mortgage in favor of Lender securing the Loan, Ihe
Devcloper wil] not mortgage or otherwise place a lien or enwmbrance on the Property
wi[hout first obtaining the Ciry's eonsent, which conse�[ the City shall not �nreasonably
withhold; vrovided, that in no event shall the City be required to consent to a mortgage,
lien or encumbrance which would be entitled to priority over Ihe lien of the Mortgage
being granted by Oshkosh Investors pursuant to the terms of the Oshkosh Investors
Development AgreemenL The CiTy hereby consents to that certain mortgage granted by
Oshkosh Investors to the University of Wisconsin Oshkosh Foundation, Inc. dated and
recorded February 14, 2012 in the Winnebago County Register of Deeds as Documen[
No. 1594517, which mortgage was assigned to The Oshkosh Area Community
Foundation Corporation ("OACF") by an Assignment of Mortgage dated and recorded
February 14, 2012 in the Winnebago County Register of Deeds as Document No.
1594518; orovided, that OACF shal] execute and deliver a subordination agreement in
favor of the City, in a form acceptable to the City in the City's reasonable discretion.
(k) The Developer, at its cost and exponse, shall, and shall cause Oshkosh
Investors tq operate, maintaiq repair and replace (including witho�t limitation, repairs
and replacements of a capital nature) all elcments of the ProjecL The Developer's
maintenance and repair obliga[ions shall include both day to day maintenance and repair
and extraordinary maintenance and repair and shall include maintenance, repair and
replacement of all elements or systems of the Project as are necessary in order to
maintai� the Project The Developer will not defer, and will not pecmit Oshkosh
Investors to defer, any reqoired maintenanee, repair or ceplaeement (including, without
limitation, repairs and replacemen[s of a capital nature) of any element of the Project and
shall establish adequate reserves therefor.
(1) The Developer will not, wi[hout the City's consent, initiate any change in
the zoning classification of all or any poRion of the Property.
(m) The Developer and Oshkosh Investors will operate the Project
substan[ially in aceordance with the final operating pro fonna submitted to the City in
conjunction with the Project Plans, and shall not increase the amount of any management
fecs paid to Developer, Oshkosh Investors or any third party beyond what is set forth in
[he operating pro forma without the City's cousent.
(n) The Developer will not resign as manager of Oshkosh Invesrors and will
❑ot withdraw or dissociatc as a member of Oshkosh Investors.
8. Damaee; Destruction. In the evcnt of fiie, damage, or any other casualty to any
par[of the Project, the Developer agees, at its cost and expense, to rebuild, repair and replace, or
cause Oshkosh Investors to rebuild, repair and replace, [he Project in the condition it was in
immediately prior to the casualty. The fair market value of the Project following reconstruction
a�d/or repair mast be greater thao or equa] to the fair marke[ value of the Project immediately
prior to the casualty. The Developer shall not be relieved of its obligations to make Guaranty
Payments as such payments become due and payabic 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 required to be rebuilt or repaired or replaced, then thc Project shall be
rebuilt, repaired or rcplaced in accordance with plans a�d specifications prepared by the
Developer and/or Oshkosh Investors and approved by the City. The Developer agees to apply,
or cause Oshkosh Investors to apply any necessary portion of the insurance proceeds to rebuild,
repair and replace the Project. The proceeds of insurance shall be disbursed for the replacement,
rebuilding or repair of the Project pursuant to the terms and conditions of a disbursing agreement
among the City, the Developer and the Title Compa�y, similar in form and conte�t to the
Disbursing Agreement 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.
lf the Projcc[ is not rebuilt, repaired and/or replaced following fire, damage or other
casualty, that shall not operate to release the Developer from its ]iabilities and obligations under
this Agreement, including, but not limited to, its obligations to make Guaranty Payments
p�rsuant[o Section 12, below.
9. Costs. The Developer shal] each yea� duri�g the Term of this Agreement pay all
reasonable and itemized fees, costs and expenses actually incurred by the City, includins
administra[ive cos[s and attorneys' and consultants' fees, in connection with the creation and
maintenance of, and annua] reporting for, the TIF Disfict, the development of the TIF District
Project Plan, the negotiation and preparation of this Ageement and all documents and
agreements exec�[ed in connection therewith; provided, however, that foi costs incuRed after the
first year, the annual amount of such payment shall not exceed Five Thousand and No/100
Dollars ($5,000.00), whieh amount will increase by one and ooe-half percent (1.5%) each year
during thc Term. Developer shall also pay all reasonable and itemized fees, wsts and expenses
actually incurred by the City, including attomeys' and consultants' fees, in connection with the
enforcement oF its rights against the Developer under the TIF District Projcet Plan or this
Agreement, including without limitation, Ihe eoforcement of such rights in any bankruptcy,
reorganization or insolvency proceeding involving the Developer.
]0. Citds Rieht to Cure Default. In case of a failure by the Developer to pcocure or
maintain insurance, or to pay any fees, assessmcnts, charges or taxes arising with respect to the
Project or to comply with the terms and conditions of this Agreement or any other document,
contraet or ageemen[ effecting the Projw[, and subject to the rights of the Lender, [he City shall
have [he righ[, but shall not be obliga[ed, to effect such insurance or pay such fees, assessments,
charges or taxes or take such action as is necessary to remedy the failure of the Corporation [o
comply with the documents, contracts or ageements effecting the Project, and, in that evcnt, lhe
cost thereof shall be payable by the Developer to the City.
11. Rea] Estate Taxes and Assessments. The Developer shall cause Oshkosh
Invesrors to pay[imely to the City generally applicable proper[y taxes assessed and levied by thc
City on the Property under applicable propeRy tax laws, rules, rates, regulations and ordinances
in effect from time to time. Nothing in this Agreement shall impair any statutory rights of the
City with respect to the assessmeot, levy, priority, collection, and/or enforcement of real estate
property taxes. In addition, the Devcloper agrees to cause Oshkosh Investors to pay timely to the
City all special assessments that may be assessed or levied in connection with the Property under
]0
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the applicable special assessment laws, mles, regulations, ordinances a�d ratos in effect at the
time said special assessmcnts are assessed or levied.
l2. Inaement Guarantv.
(a) The Developer hereby guarantees that commencing in 2016, Tax
Increments received duri�g each calendar year wil] be at ]east equal [o the debt service
payable by the City during such calendar year on aIl amounts disbursed for or on bchalf
of the ProjecL In the event that there is ao Annual Tax Increment Deficit in any given
year, the Ciry shall notify the Developer, in writing that there is an Annual Tax
Increment Dcficit, and the amount of the Annual Tax Increment Deficit ("Deficit
Notice"). Within thirty (30) days aftec the Deficit Noticc, Developer shall pay the City
an amount equal to the Annual Tax Increment Deficit(a"Guarantv PavmenP').
(b) Revenue Generation. The Developer acknowledges that the G�a�t is being
provided by tbe City in reliance upon the futurc generation of general property taxes
which will generate revenues for the City, including the reve�ues �ecessary to repay [he
City's debt on all amounts disbursed for or on behalf of the Developer under this
AgreemenL During the tertn of the TIF District, the Developer shall cause Oshkosh
Investors to use, and shall assure the use by any subsequent purchaser of, the Prope�ty for
commercial purposes sufficient at al] times to avoid an Annual Tax Increment Deficit and
shall take no action which would cegatively affect the value of the Property.
(c) Convevance to Third Parties. The Developer shall not permit the sale,
transfer or conveyance the Property, any portion thereof or any improvements thereon, to
any person or entity unless such person or enti[y, for itself and its successors and assibms,
agrees to be bound by the terms of this Section 12 to the same extent as the Developer.
(d) The Developer's obligations u�der this Section 12 aze joint and severa]
with those of Oshkosh Investors pursuant [o the Oshkosh Investors Developmen[
Agreement.
(e) The Developer's obligatioos under this Sectiou 12 shall also be secured by
the City's right of special assessment or by any other remedy available to the City by
sta[u[e. If the Developer fails to pay[imely any Guaranty Payment due under this Section
12, the City may, in additioo to all other remedies available to it in Iaw or equity, levy the
amoun[ of the overdue obligation against the Property as a special assessment pursuant to
Wis. Sffit. §66.0701. In counection [herewith, the Developer (i) acknowledges that the
City has incuired costs for the payment or reimbursemeut of the Project Costs, (ii) agrees
that the amount of the special assessment, if levied consistent with this Agreement,
co�stitutes a proper exercise of the City's authority to lery specia] assessments in
aecordance with Wis. Stat §66.0701; (iii) agrees that the allocation of the City's costs to
the PropeRy is reasonable and commensurate with the special benefits provided to the
Property; (iv) agees that the amount being assessed in accordance with this Agreement
does not execod the value of the benefits accruing to the Property from the City's
expenditures identified herein; (v) consents to the imposition and levy of such special
assessments; (vi) agrees that the approval of this Agreement by the Oshkosh Common
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Cou�cil shall be suffieient to authorize the ]evy of special assessments in accordanee
herewith, and that no further procedural steps noed be taken by the City; (vii) waives all
special assessment notices, hearings and appeals provided by Wis. Stats. §66.0701 or
§66.0703; aud (viii) aclaowledges that the City is relying o�the tenns of this Agreement,
and speci5cally Ihe terms of this subsection, [hat such reliance is reusonable, and that the
City's payment of i[s obligatio�s to the Developer under this Agreement will be
detrimental to the City if the provisions relating [o 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 agains[ all loss, liability, damage and expense, including reasonable
atromeys' fees, suffered or incucred by the City to the extent ca�sed by the following (a) the
failure of the Developer or its contractors, subcontractors, agents, employees, or invitees to
comply with any environmenta] law, rule, regulation or ordinance, or any order of any regulatory
or administrative authority with respect therero; (b) any release by the Developer or its
contractors, subcontractors, agents, employees or invitees of petroleum products or hazardous
malerials or hazazdous substances on, upon or into the Project (c) any and all damages to natural
resources or real property or harm or injury to persons resulting or alleged to have resulted from
any failure by the Developer and/or its contractors, subcontractors and/or agents to comply with
any law, rule, regulation or ordinance or any release of petroleum products or hazardous
materials or hazardous substances as described in clauses (a) and (b) above; (d) claims arising on
the Property under the Americans with Disabilities Act, and any other laws, rules, regulations o�
ordinances; (e) daims for third parties for injury to or death of any person on the Property; and
(� the failure of the Developer to maintaiq repair or replace as necded any portion of the
Project.
The term °hazardous substances"mea�s any flammable explosives, radioactive materials,
hazardous wastes, toxic substances, or related materials, including without limitation, any
substances defined as or included in the definition of `Mazardous substances," "hazardous
waste,° "hazazdous materials," or `toxic substanees" under any applicable federal or state or
local laws or regula[ions.
14. Insurance. The Developer shall maintain the following insurance policies issucd
by insurers wi[h 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 b�siness in [he State of Wisconsin: (i)
commercial general liability insurance with limits of$1,00Q000 per occunence and $S,OOQ000
in the aggrega[e; and (ii) sta[u[ory worker's compensation insurance; and (iv) automobile
liability insurance with a combined single ]imit of $1,00Q000. The Devcloper shal] cause
Oshkosh Investors to maintain propeRy insurance on the Property with coverage limits equal to
the full replacement cost of the building and its contents.
Each insurance policy shall require the insurer to provide at least thirty (30) days prior
written notice to the City of any material change or cancellation of such policy.
t5. Nondiscrimination. The Developer shall not use the Project in any manner to
permit discrimination or �estriction on the basis of race, creed, ethnic origin or ideutity, wlor,
gender, religion, marital status, age, handicap or nationa] origin, and the Developer shall
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wnstruct and operate the Project in compliance with all laws, rules, regulations and ordinances
relating to discrimination or any of thc forcgoing.
16. Propertv Tax Challenees and Exemntions. The Developer shall nol seek to
reduce the assessed value of the PropeRy below an amount necessary to create Ihe Tax
Increments set forth on Exhibit F. In addition, the Developer shall not cause or permit the
Property or any portion Ihereof 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 por[ion of the Property prohibiting any use or ownership of the Property which would
cause the PropeRy 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 ro pay when due any Guaranty
Payment or other amount due from it under Ihis Agreement, and such failure continues
for fifteen (l5) days after the Developer has received a written notice of default and such
Guaranty Payment or other amount due is not paid timely by Oshkosh Investors; or
(b) Any representation or walranty made by the Developer or any successor in
Ihis Ageement or any document delivered by the Developer or its sucecssor pursuant to
this Agreement shall prove to have been false in a material way as of the time made or
given; or
(c) The Developer or any successor shall breach or fail to substaotially
perform timely or observe timely any of its covenants or obligations under this
Agreement, and such failure shall continue for thirty (30) days following notice thereof
from the City to the Developer (or such longer period of time as is necessary to cu�e the
default as long as the Developer has commenced the cure of the default within the thirty
(30) day period aud is diligentty pursuing to care the default and as long as the default is
eured mt later than one hund�ed eighty (180) days following notice theceof from the
City); or
(d) The Project is no[ substantially completed on or before the Completion
Date(sabject to matters ofjorce majeure); or
(e) The Developer shalC (i) become i�solvent or generally not pay, or be
unable to pay, or admit in writing its inability to pay, its debts as they mat�re; or (ii)
make a genera] assig�ment for the benefit of creditors or to an agent authorized to
liquidate any substantial amount of its assets; or (iii) become the subject of an order for
relief within the meaning of the United States Bankruptcy Code, or file a petition in
bankruptcy, for reorganization or to effect a plan or other a�rangement with creditors; or
(iv)have a petition or application filed against it in bankruptcy oi auy 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 petitio� or
upplication, admitting material allegations thereof, oi (v) apply to a court for the
appointment of a receiver or custodian for any of its assets or properties or have a
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ieceiver or custodian appointed for aoy of its assets or properties, with or without
consen[, and such receive� shal] not be discharged within ninety (90) days after its
appointment, or(vi) adopt a plan of comple[e]iquidation of its assets; or
(� An event of dofanit occurs under the Oshkosh Imestors Developmcnt
Agreement.
18. Remedies. Upon the occurrence of a�y default, without further notice, demand or
action by any kind by the City, the City may, at its option, pursue any one or more of the
following remedies concurrently or successively:
(a) Demand the immediate repayment of the entire amount of the Grant; or
(b) Pursue any or all of the rights and remedies available to the City at law
and/or in equity against the Developer and/or the Projcct.
Except as may be otherwise specifically se[ forth herein, no remedy herein conferred
upon the City is intended to be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given under Ihis Agreement,
a�d/or available to the CiTy under the TIF District Project Plan and any other covenan[s,
restrictions, dowments or instruments goveming thc TIF Distdc[, and/or nuw or hereafter
existing at ]aw or in equity. No failure or delay on the paR of the City in exercising any right or
remedy shall operate as a waiver thereof nor shal] any single or partial exercise of any right
preclude other or further exercise thereof or the exercise of any other right or remedy.
Notwithstanding any of the foregoing authorizations, the City shall have no dury or obligation
whatsoever with respect to any of the matters so authorized.
l9. No Personal Liabilitv. Under no ciroumstaoces shall any counci] member,
official, director, attomey, employee, or agent of a party have any personal liability arising out of
this Agreement, and no party shall seek or claim any such personal liability.
20. City A�thorization. The exewtion of this Ageemcnt by the City is authorized by
Common Council Resolutions No. 12-290 adopted on May 22, 2012 and No. 12-509 adopted on
October 9, 2012.
21. Miscellaneous.
(a) Except as othcrwise speciftcally set foRh herein, the respective rights and
liabilities of the City and the Developer in this Agreement are not assignable or
delegable, in whole or i� part, without the prioc written consent of the other party.
Provisions of this Ageement shall inure to the benefit of and be binding upon the
successors and assigns of the par[ies.
(b) No waiver, amendment, or variation of the terms of this Agreement shall
be valid unless in writing and signed by the City and the Developer, and then only to the
extent specifically set forth in writing.
l4
6980W4_13
(c) All material applicable agreements, rcprosentations, wacrnnties, covenants,
liabilities and obligations made in this Ageement and in any document delivered
pursuan[to this Agreement shall remain cffcc[ivc during the Tenn of this Agreement.
(d) All communications or notices required or permitted by this Agreemcnt
shall be in writing and shall be dccmed to have been given: (i) upon delivery to an officer
or the person entitled to such notice, if hand delivered, or(ii) two busincss days following
deposit in thc Onited States Mail, postage prepaid, or with a nationally recognized
ovemight commeroial carrier that will certify as to thc date and time of delivery, air bill
prepaid, or (iii) upon transmission if by facsimile, any such communicatio� oc noticc
shall be addressed as follows, unlcss and until any such party notifies the other in
accordance with this section of any change of address:
If to the Citv: City of Oshkosh
City Attomey's Office
215 Church Avenue
Post Office Box ll 30
Oshkosh, WI, 54903-1130
Attn: City Attomey
Facsimile No. (920)236-5106
With a couv to: Godfrey& Kahn, S.C.
l00 West Lawrence Street
Appleton, WI54911
Atm: Michael J. Lokensgard
Facsimile: (920) 830.3530
If to thc Develoner Oshkosh Investors, LLC
One North Main Street
Post Office Box 1203
Oshkosh, WI54903-1203
A[tn: Rich Batley
Facsimile: (920)
Wi[h a coov to: Reff, Baivier, Benningham & Lim, S.C.
217 Ceape Avenue
Post Office Box 1190
Oshkosh, WI54903-1190
Atm: Russell J. Reff
Facsimile: (920) 231-0035
(e) This Ageement and the documents executed pursuant to this Agreement
contain the entire understanding of the parties with respect to the subject matter hereof.
There are no restrictions, promises, warrantics, covenants or understandings other than
those expressly set forth in this A�eement and documents executcd in connection with
this Agreemenc This Agreement and the documents executed in connection herewith
15
69800]4_13
supersede all prior negotiations, ageemen[s and undertakings between the par[ies with
respect to the subject matter hereof.
(� This Ageement is in[ended solely for the benefit of Ihe Developer and [he
City, and no third party (other than successors and permitted assi�s) shall have any
rights or interest in any provision of this Agreement, or as a result of any action or
i�action of the City in connection therewith. Without limiting the foregoing, no
approvais given pursuant to this Ageement by the Developer or the City, or any person
acting on behalf of either of them, shall be available for use by any contractor or other
person in any dispute with the construction of the Project.
(g) This Agreeme�t shall be govemed by, and construcd and in[erpreted in
accordance with, the laws of the State of Wisconsin applicable to contracts made and
wholly perfonned within thc 5[atc.
(h) This Agreement may be executed iu several counteepaas, each of which
shall be deemed an original, but such counterparts shall together constitute but one in the
same A�ecmcnt Facsimile signatures shal] be deemed original signatures for all
p�rposes of this Agreement.
(i) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be iu effect to the extent of such prohibition
or enfomeability without imalidating the remaining provisions of this A�rzeement in such
jurisdiction or affecting the validity or enforcement of any provision in any other
jurisdiction.
Q) Nothing contained in this Agreement or any other documents executcd
pursuant to Ihis Ageement shall be deemed or construed as aeating a partnership or joint
venture between the City and the Developer or betwee� the City and any othec peiso�, or
cause the City to be responsible in any way for the debts or obligations of the Developer
or any other person or cause the Developer to be responsible in any way for the debts or
obligations of the City or any other persoa Each party represents, warrants and agrees,
for itself and its successors and assigns, not to make any assertion inconsistent with its
acknowledgement or with [he acknowledgement and agrcoment contained i� the
preceding sentence in the evcnt of a�y actioq suit or proceeding, a[ law or in equity, with
respect to the transactions which are the subject of this Agreement and this paragaph
may be pleaded and construcd as a complete bar and estoppel against any assertion by or
for a party and its successors and permitted assibms, that is inconsisten[ wi[h i[s
acknowledgement and agreement contained in the preceding sentence.
(k) Time is of the essence as to each and every obligation or ageement
coutained in this Agreement.
Q) If any party is delayed or prevented from timely performing any act
required under this Agreement other than the payment of money, by reason of fire,
earthquake, war, terrorist act, flood, riot, strikes, ]abor disputes or shortages, government
resMetions, judicial order, publie emergency, o� other causes beyoud the reaso�able
16
69800]0_13
control of the party obligated to perform, the perfortnance of such act shall be excused for
the period of such delay and the time for the performance of any such act shall be
ex[ended for a period equivaleat [o such delay.
(m) No disbursement of any poRion of the Grant or paymcnt by the City under
the Oshkosh Investors Development Agreement shall preclade the Ciry 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 [he
Register of Deeds of Winnebago County, Wisconsin, it being understood by the parties
that u�til Expiration Date, this Ageement will run with the land and 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 aze for reference only and aze not
intended to modify any of the terms and conditions of Ihis Agreement.
(p) Nothing contained in this Agreement is intended to or has the effect of
releasing the Developer from complianec with al] applicable laws, mles, regulatio�s and
ordina�ces in addition to compliance with all the terms, conditions a�d covenants
contained in this Agreement.
(q) This Agreemen[ is the product of negotiation between the parties hereto
and no term, covenant or provision herein or the failure to include a tenn, covenan[ or
provision shall be cons[rued against any paRy hereto solely on the basis that one party or
the other drafted this Agreement or any term, covenant or condition contained herein.
(r) Upon mutual consent of the parties to this Ageement, which consent any
party can withhold in its sole discretion, the parties can agree to submit disputes arisi�g
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 CONTRACP OR TORT, AT LAW OR EQUITY, ARISING OUT OF OR
IN ANY WAY RELATED TO THIS AGREEMENT.
(t) All amounts not paid when doe hercundei shall beaz interest at the rate of
twelve percent(12%).
22. Other Annrovals. In addition to any approvals required under this Agreement, the
Developer shall be required to obtain all approvals, consents, and licenses as may be required by
any govemmental or non-govemmental authority in connection with the Project, including,
without limitation, all building permits, Project Plan approvals and zoning approvals. The
Developer's compliance with the terms of this Ageement shall �ot relieve the Developer from
complying with all applicable federal, state and local laws, rules, regulations and ordinances in
wnnection with the Project and to the extent any govemmental or non-governme�ta] entity
imposes different or more restrictive conditions on the Developer or the Project, compliance by
17
6980014_13
Ihe Developer wi[h [he tenns of[his Agreemen[ shal] not relieve the Developer from complying
with such different or more restrictive conditions. Likewise, any less restrictive conditions
imposed on the Developer or [he Projec[ by a�y governmental or non-governmental authority
shall not relieve the Developer or the Project from complying wi[h all of the [ertns and
conditioos of this Ageement.
[SIGNATURE PAGE FOLLOWS]
18
69800]4_13
IN WITNESS WHER80F, the partics havc cxccutcd this Ageement as of[he da[e firs[
above writ[en.
CITY OF OSHKOSH, WISCONSIN
By:
Mark A. Rohloff
Its: City Manager
By:
Pamela R. Ubrig
Its: City Clerk
Approved as to form:
By:
Lynn A C,orenson
Its: City Attomey
I hereby ccrtify that the necessary provisions have been made[o pay the liability which
will accrue under this Agreement.
Peggy Steeno, Finance Director
STATE OF WISCONSIN )
) SS
COUNTYOF WINNEBAGO )
Personally came before me this day of , 2012, thc 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 [he person who executed [he foregoing documen[ and acknowledged
[he same.
+
Notary Publiq State of
My commission:
[SIGNATURES AND ACKNOWLEDG2MENTS CONTINUED NEXT PAGE]
19
69800]4_13
OI MANAGEMENT CORPORATION
By:
Jokm Pfefferle
Its: President
By:
Artliur H. Ra[hjen
I[s: Secretary
STATE OF WISCONSIN )
) SS
� COUNTY OF WINNEBAGO )
� Personally came before me this day of 2012, the above-named John
Pfcffede and A�ih�r H. Rathjeq to me lmowu [o be [he Presiden[ and Secretary of OI
Menagement Colporation and the persons who ezecuted the foregoing documen[ nnd
acknowledged the same.
*
Notary Public, Sta[e of
My commission:
20
6980014_13
Exhibit A
Proper[y Lcgal Dcscrip[ion
Lot Three (3) of CERTIFIBD SURVEY MAP NO. 1197 filed in Volume l of Certified Survey
Maps on Page 1197 as Document No. 602518; bei�g part of Lots One (1) through Eleven Q 1) in
Moore's Subdivision, in the First Ward, City of Oshkosh, Winnebago County, Wisconsin,
excepting therefrom that poRion thercof heretofore wuveyed to the City of Oshkosh for
riverwalk purposes by Deed recorded in Document No. 1612548.
TaxID Number0100400000
ssaoo�a_i3
Exhibit B
Pocm of Disbursing Agreement
[omitted from exhibi[copy]
Hxhibit C
Form of Parking Agreemen[
[omitted from exhibit copy]
Exhibit D
Legal Description of Riverwalk Parcel
That part of Lot Three (3) of Certified Survcy Map No. 1197 filed in Volume 1 of Certified
Survey Maps on Page 1197 as Document No. 602518; being a part of Lots One (l) through
Eleven (11) in Moore's Subdivision, i� the Fi�st Wazd, in the City of Oshkosh, Winuebago
County, W isco�siq described as follows:
Begiuning at [hc southwest comer of said Lot 3, that also being the southeast comer of"City
Cente2', a Wisconsin Condominium a�d a point on the northerly U.S. Harbor Line of the Fox
River; thence N OS°54"2T E, 37.23 fcct along the west line of said Lot 3; thence S l0°47'20" E,
9.06 feet; thence S 53°54'04° E, 84.2] feet; thence N 36°OY56"E, 1.60 feet; thence S 6]°20'S6°
E, 428 feet; thence S 21°ll'3P' W, 1.50 feeh, thenec S 68°48'29° 8, 123.19 feet; the�ce N
55°2P48" E, 8.27 feet; thence N 00°2T46" W, 2278 feet to the southeast comer of an existing
masonry building; thence N 00°27'46" W, ]0.03 feet along the face of said existiug masonry
buildi�g; the�ce N 89°50'23" E, SJ4 feet to the east line of said Lot 3 and the west dght-of-way
of North Main Street; thence S 00°09'3T' E, 46.17 feet along the east line of said Lo[ 3 and [he
west right-of-way of North Main Street to the southeast comer of said Lot 3 and a point on the
U.S. Harbor 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 Beginning.
Property Address: .52 acres of 1 N. Main Street Oshkosh, W I 54901
Tax Pamcl Numbcr. PART OF 901-0040
sseoma_�a
ax�,�n�i e
Oshkosh Invesrocs Developme�t A6�cemen[
[amiucd from exhibit wpy]
F.xhibit F
Projected Increment Schedule
[omi[ted from exhibi[copy]
Exhibit C
Form of Parking Agreeme�t
[a[tached]
8559261 J
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 County, Wisconsin and Oshkosh Investors, LLC, a Limited Liability
Corporation, with its principal offces located at 1 North Main Street, Oshkosh,
W isconsin.
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 Ihe 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 frst
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 inten[ion of the parties that this Agreement terminate all prior agreements and
understandings related [o the operation and maintenance of the Parking Structure
(other than the Ground Lease) and that this Agreement shall con[ain the entire
agreement and understanding of the parties with respec[ to the operation and
maintenance of the Parking Structure.
It is hereby agreed by and between the parties to this Agreement as follows:
1. Leased Prooertv. The City shall lease from Oshkosh Investors, LLC the Parking
Structure, including the elevator and adjacent stainvells, loca[ed 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 Hotel Guests. Pursuant to Ihe 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 Ihis Agreement or until the Agreement is terminated as provided
herein, as contemplated in the original Ground Lease and Parking Agreement.
3. Termination of Prior Aareements. This Agreement terminates all prior
agreements and understandings (other than the Ground Lease) related to the
operation and maintenance of the Parking Structure, whether enumerated herein
or not, whether oral or written.
4. R�onsibilitv for Ooeration and Maintenance of Parkina Structure.
Citv ResAOnsibilitv. City shall be responsible at City's sole ezpense for all
maintenance and repairs of the Parking Structure 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 the mechanical operation 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 oi the Parking
Structure.
Oshkosh Investors. LLC ResAOnsibilitv. 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
stairwells, clean and clear of refuse and obstructions, including dirt around
drains; window cleaning; cleaning of other interior and exterior surfaces
(including utilizing a power-washing method to remove all accumulated dirt,
oil, grease and grime, spider treatment); 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 adjacent to the Hotel.
6. Utilitv ExAenses. 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 entire term hereof, keep in full force and effect a
policy of general liability insurance with respec[ to the Premises. City shall
provide evidence of insurance coverage in the form of a certificate of insurance
[o Oshkosh Investors, LLC prior to [he 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. Damape 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 other casualty of any kind or nature, or razed,
City, a[ 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, alter, restore, replace or rebuild the Parking Strudure as nearly as
possible to its value, condition, architectural character, and utility immediately
prior to such damage or destruction, subject to such changes or alteration as City
may elect to make, provided such changes or alterations do not diminish the
amount and comenience of parking available hereunder to the Hotel or the
architectural charac[er of the Parking Structure. Under no circumstances shall
Oshkosh Investors, LLC be required to contribute ta 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.
lO.Fees. Oshkosh Investors, LLC shall on a monthly basis pay [o the City $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 to the City $3 per guest room night each
month. Fees shall be paid on the ffteenth 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 paymeM for the anticipated costs
related to further maintenance, repair or improvement of the Parking Structure for
additional time 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 arbitra[or 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 next 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 [he original
Ground Lease and shall terminate on December 31, 2059. Upon termination the
Parking Structure shall become the property of the Ciry of Oshkosh and Oshkosh
Investors, LLC shall no longer have any right, title or interest in the Parking
Structure.
12.De(ault / 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 the
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 the 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 wri[ten notice thereof by the other party, the
nondefaulting party shall be entitled to bring an action for specific performance
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 wntten notice to the defaulting party,
provided that such default is substantial and material to this Agreement.
13.Assiqnment. 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
[he Hotel, this Agreement shall be assigned to the successor owner. In such
event, the transferee of Ihe interes[ of Oshkosh Investors, LLC or its assignee
shall be required to abide by and perform all of the covenanis 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 6e required to
enter into an agreement with Oshkosh Investors, LLC or its assignee contracting
to be governed by all relevant provisions of this Agreement and [o perform all of
the covenants and obligations of City hereunder. Assignment of the City's
interest shall be subject to consent of the Oshkosh Inves[ors, LLC, which consent
shall not be unreasonably withheld.
14.Notices. Any notices required by this Agreement shall be in writing and
delivered via certifed mail, return 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, WI 54901
FOR THE CITY:
Ci[y of Oshkosh
c/o City Manager
P.O. Box 1130
Oshkosh, W154903-1130
15.Entire Aqreement. This writing constitutes the entire agreement between [he
parties hereto, with regard to the subject matter of this Agreement, and it is
intended that this Agreement integrates and incorporates all previous and
concurrent negotiations and agreements belween the parties, and may not be
amended or altered or modified in any manner except in writing signed by both
parties.
16.Applicable 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 [o public policy or
to law, such provisions shall be ineffective only to the 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 default 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 [erm 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 identifed, and it is not the intention of either the Grantor or
Grantee that other parties shall acquire any rights to enforce or benefit from
through 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 this Agreement on behalf of the Grantee. Grantor affirms
that it has the authority 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 f rst set forth above.
CITY OF OSHKOSH, WISCONSIN
Date: By:
Mark A. Rohloff, City Manager
Date: By:
Pamela R. Ubrig, Ciry 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: By:
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 AgreemenP' 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 par[ of Lot Three (3) of Certified Survey Map No. 1197 filcd in Volume 1 of Certified
Survey Maps on Page 1197 as Document No. 602518; being a part of Lots One (1) through
Eleven Q1) in Moore's Subdivision, in the First Ward, in the City of Oshkosh, Winnebago
Coonty, Wisconsiq described as follows:
Beginning at the southwest comer of said Lot 3, that also bcing the southeast comer of "City
Center', a Wisconsin Condominium and a point on the northerly U.S. Harbor Line of the Fox
River; thence N OS°54"27' E, 37.23 feet along the west line of said Lot 3; thence 5 ]0°4T20" E,
9.06 feet; thence S 53°54'04" 8, 8421 feeT, thence N 36°OS'S6"E, 1.60 feet thence S 61°20'S6°
E, 4.28 feet; thence S 2l°I P3l" W, 1.50 feeT, thence S 68°48'29° E, 123.19 feet; thence N
55°2P48" E, 827 feet; thence N 00°2T46" W, 22.78 feet to the southeast comer of an existing
masonry building; thence N 00°27'46" W, 10.03 feet along the face of said existing masonry
building, thence N 89°50'23" E, 8.74 feet to Ihe east linc of said Lot 3 and the west ri�t-of-way
of NoRh 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 NoRh Main Street to the southeast corner of said Lot 3 and a point on thc
O.S. Harbo� Line; thence N 69°42'36" W, 221.69 feet along thc O.S. Harbor Line and the south
line of said Lot 3 to the Point of Beginning.
Property Address: .52 acres of 1 N. Main Street Oshkosh, WI 54901
Tax Parcel Number PART OF 901-0040
855926] C
sxn[b;r E
Form of Mortgage
[attached]
assne�_a
MORTGAGE
DOCUMGNTNO.
nns srnct urstxveu eox�roiw�nu ua rn
FAMEAA'DREfl�0.9A��0.E4
Lynn A. Lorenson,Esq.
City af Oshkash
2I5 Church Avenue
Oshkosh,W154903-1130 _ ___
OI00400000
Parcel Identification Number
This ins[rument was drafred by:
Michael J. I.okensgazd
Godfrey & Kahq S.C.
100 W. Lawrence Street
Appleton, WI54911
855926]_4
MORTGAGE
THIS MORTGAGE is made and ente�ed into as of this day of October, 2012, by
and between OSHKOSH INVESTORS, LLC, a Wisconsin limited liability company (the
"Mor[gago2') and the CITY OF OSHKOSH, WISCONSIN, a Wiswnsin municipal
corporation ("Mortgagee").
WITNESSETH:
This Mortgage is given to secure the prompt and full payment and performance as and
when due of Ihe obligations of MoRgagor pursuant to that certain Development Ageement (the
°Development Agreemenf') by and between Mortgagor and Mortgagee dated as of October
, 2012. The tertn "Obligations" as used in this Mortgage shall mean all sums payable to or
for the benefit of Mortgagee by MoRgagor under the Development Agreement or this Mortgagc,
including any and all expenses reasonably incurred by Mortgagee to enforce obligations of
Mortgagor, as pecmitted under this Mortgage or the Dcvelopment Agroomcnt.
FOR VALUE RECEIVED, Mortgagor hereby mortgages to Mortgagee Mortgagor's
interest in the rea] property described in Exhibit A attached hereto, with al] appurtenances and
existing or future improvements (thc`Property").
The MoRgage is given to secure payment of thc Obligations and is given and aceepled on
the following tertns and condition, which Mortgagor will promptly and faithfully observe and
perfocm.
The lien of this Mortgage is and shall at all times be secondary, subordinate and inferior
to the lien of each moRgage, deed of trust, security agreement, assignment of rents and leases
and any other instrument securing payment of the loans to Mortgagor for the cons[ruc[ion or
development of the Property described o� attached Exhibit B (the "Prior Encombrance(s)").
This subordination shall be self-executing as to the Pdor Encumbrances and each of them and
effective without any fuRher action or wnsent of Mortgagee. However, without limiting the
foregoing, upon written request &om any lender holding the Prior Encumbca�ce(s) ]isted on
Exhibit B, or their respective successors or assigns with respect to such Prior 8neumbrance(s),
Mortgagee shall execute and deliver to such person such subordination and other instrumenls
that such person may reasonably require and that pass in the trade among prudent financial
institutions seeking to confirm or obtain priority over a prior filed or subordinatc licn to confirm
or establish the subordination of Ihe lien of this Mortgage to such interest. Mortgagor hereby
expressly covenants and agrees ro pay or see to the payment of the Obligations and performance
of the obligations secured or required by Mortgagor by any Prior Encumbrance(s) and to pay,
perform and observe all Ihings necessazy to prevent any default thereurider. MoRgagor will
immediately fonvard to Mortgagee a copy of any notice of default under any then Prior
Encumbrance(s) which Mortgagor may receive at any time. During the period in which any
Prior Encumbrance is in effect, Mortgagor shall also comply with the insurance and other
provisions contained therein. If any proceeds from Ihe insurance or of any wndemnation of all
or any portion of Ihe Property become payable on loss or taking or any other i�come or procecds
855926]_a
of[he Property would otherwise bewme payable to Mortgagee, [he provisions in this Mortgage
for division of s�ch proceeds shal] apply only to tha[ poition of the proceeds not payable to the
holder of any Prior Enwmbrance. Each provision of [his Mortgage shall be subjec[ to and
subordinate to the terms and conditions of (and rigUts of the lender(s) as to) the Prior
Enc�mbrance(s).
1. PAYMENT AND PERFORMANC& Mortgagor shall pay ro Mortgagee all
amounts, payment of which is secured by this Mortgage, and shall perform all obligations
imposed upon Mortgagor by this Mor[gage or the Prior Encumbrance(s).
2. POSSESSION AND MAINTENANCE OF THE PROPERTY.
2.1 Possession. Until in default, Mortgagor may remain in posscssion and
control of and operate and manage the Property and collect income from the Property.
2.2 DuN to Maintain. Mortgagor shal] maintain the Property in as good
condition and repair as required under the Prior Encumbrance(s), as defined below, which
standard shall survive the release of the Prior Encumbrances and each of them.
2.3 Nuisance. Waste. Mortgagor shall not conduct or pertnit any nuisance
and shall not commit or suffer any waste on the PropeRy.
2.4 Mortsasee's Rieht to Enter. Mortgagce and its agents and
representatives may enter upon the Property at al] reasonable times upon reasonable prior written
notice (which shal] in no event be less than twenty-four (24) hours' advance notice, except in the
event of a� emergency) to attend to Mortgagee's interest and to inspect the Property, subject to
the right of tenants then in possession.
2.5 Alteretion or Removal. Mortgagor shal] not remove, demolish or
materially alter any part of the Proper[y without Mortgagee's prior writ[en consent; except
Mortgagor may cemove a fixture, orovided thc fixture is promptly replaced with another fixmre
of at least equal qualiry.
2.6 Ordinances. Mortgagor shall comply with all laws, ordinances and
regulations affecting the Property.
3. TAXES AND LIENS.
3.1 Pavment Mortgagor shall pay or cause to be paid before delinquency all
taxes and assessments levied against or on account of the Property from and after the date of this
Mortgage, and shal] pay or cause ro be paid all claims for work done on or for services rendered
or material fumished to the PropeRy. Mortgagor shall maintain the Property free of any liens
created or suffered by Mortgagor having priority over or equal to the interest of Mortgagee undcr
this MoRgage, except for the Prior Encumbrance(s), and the lien of taces and assessments not
due, and except as otherwise provided in Section 32.
855926]_4
3.2 Rieht ro Contest Mortgagor may withhold payment of any tax,
asscssmcnt or claim in connectiou with a good faith dispute over the obligation to pay, so long as
MoRgagee's interest in the Property is not jeopardized. If the Property is subjected to a lien for
which MoRgagor is responsible under this Mortgage which is no[ dischazged within thirty (30)
days, Mortgagor shall deposit with Mortgagee cash, a sufficient corporate surety bond or other
security satisfactory to Mortgagee in an amount sufficient to discharge the lien plus any interest,
costs, attomeys' fees or other charges that could accrue as a result of a foreclosure or sale under
the lien. In any contest proceedings, Mortgagor will defend itself and Mortgagee and will name
Mortgagee as an additional oblige under any surety bond, and Mortgagor shall satisfy any final
adversejudgment before e�forcement against the Property.
3.3 Evidence of Pavment. MoRgagor shall promptly fumish evidence of
payment of taxes and assessments to Mortgagee on its demand and shall authorize the
appropriate county official to delivei [o Mor[gagee at any [ime a written statemeot of the taxes
and assessments against the Property.
4. PROPERTY DAMAGE INSURANCE.
4.1 Maintenance of Insurance. Mortgagor shall procure and maintain
policies of fire insurance with standard extended covcrage endorsements covering all
improvements on the PropeRy, for replacement value, and in an umoant sufficient to avoid
application of any co-insurance clause and with loss payable to Mortgagee and Mortgagor, as
their respective interests may appear. Policies shall be written in amounts, in form, on terms and
with companies reasonably acceptable to Mortgagee. Mortgagor shall deliver to Mortgagee
certificates of coverage from each insurer containing a stipulation that coverage will not be
canceled or diminished without a minimum of thirty(30) days' written notice to Mortgagee.
4.2 Aunlication of Proceeds. Mortgagor shall promptly notify Mortgagee of
any loss or damage of the Property the restoration or repair of which is estimated [o cost in
excess of$SQ000. Mortgagee may make proof of loss if Mortgagor fails to do so within fifteen
(15) days of the casualty. So long as thc�e is no materia] default uuder this Mortgage or the
Development Agreement and subject m the Prior Encumbrance(s), Mortgagee shal] make the net
insurance proceeds actually received by Mortgagee available to Mortgagor for the restoration
and repair of the Property in a manner consistent with commercially prudent practice of secured
paRies in the holding and disbursement of such funds. If the proceeds are disbursed to
Mortgagor for restoration and repair, Mortgagor shall repair or replace the damaged or destroyed
improvements in a good and workmanlike, lien-free manner, in complia�ce with applicable law
and reasonably satisfactory to MoRgagee.
43 Unexoired Insurance at Sale. Any unexpired insurance shall inure to the
benefit of, and pass to, the purchaser of the Property covered by this Mor[gage at any forcclosure
sale of the Property.
5. WARRANTIES OF MORTGAGOR.
5.1 Title. Mortgagor warrants [hat it holds the leasehold interest in thc
Proper[y free of all encumbrances other than this Mor[gage, any Prior Encumbrance(s), as
855926]_4
defined below, and those restrictive covenants, easements and conditions currently of record on
the Property.
SS Defense of Title. Subject to [he matters described in paragraph 5.1,
above, Mortgagor wa�rants and will forever defe�d [he [itle to [he Property against the lawful
claims of all persons.
6. CONDEMNATION.
61 Aoplicafion of Net Proceeds. Subject to the provisions of the Prior
Encumbrance(s), if all or any part of Ihe Property is condemned, at MoRgagor's election, so long
as there is no material default under this Mortgage or the Development Agreeme�t, Mortgagee
shall apply all or any portion of the ne[ proceeds of the condemnation actually received by
Mortgagee on the Obligations or disburse them to Mortgagor for the restoration of the Property
to as near as practicable to its condition prior to such taking. The "net proceeds" shall mean the
total amount available after payment of all reasonable costs, expenses and attomeys' fees
necessarily paid or incurred by Mortgagor and Moctgagee in connection with the taking by
condemnation. Sale of all or any part of the Property to a purchaser with the power of eminent
domai� in the face of a threat or the probability of tho cxeroise of the powei shall be tceated as x
taking by condemnation to which this Section shall apply.
6.2 Proceedin¢s. If any proceedings in condemnation are filed, Mortgagor
shall promptly take such steps as may be necessary to defend the action and obtain the award.
7. TRANSFER BY MORTGAGOR.
7.1 Prohibition of Transfer Without Consent. Mortgagor shall not sel] or
convey the Property without the prior written consent of Mortgagee.
7.2 EFfect of Consent Consent by Mortgagee to one transfer shall not
constitute a consent to other transfers or a waiver of this Sectioa No transfer by Mortgagor shall
relieve Mortgagor or any other person of liability for payment of the Obligations. Following a
transfer, Mortgagee may agee to any extension of time for payment or perfortnance or
modi5cation of the terms of this Mortgage or the Development Agreement or waive any right o�
remedy under this Mortgage or the Development Agreement without relieving Mortgagor or any
othcr person from liability.
8. RELEASE ON FULL PERFORMANCE. If all of the Obligations are fully
paid, performed and satisfied as and when due, Mortgagee shall execute and deliver to
Mo�tgagor a full release of this MoRgage.
9. DEFAULT. The following shall constitute "Events of Default":
(a) Failure of Mortgagor or other peison to pay any portion of the Obligations
when due, subject to any cure period expressly provided under this Mor(gage or the
Development Ageement, as applicable.
855926]_4
(b) Failure of Mortgagor to perfoan any othec obligation within the poriod, if
any, allowcd u�der this Mortgage or the Development Agreement, as applicable, for such
cure.
(c) Any other eve�t of default under the Development Agreement.
(d) The commencement of any action to foreclose any one or mo�e of the
Prior Encumbrances or the attachment to the Property of any other lien or encumbrance
not a Prior Enwmbrancc under this Mortgage.
]0. RIGHTS AND REMEDIES ON DEFAULT.
10.1 Remedies. Upon the occurrence and during the continuance of any Event
of Default, Mortgagee may exercise anyone or more of the following rights and remedies:
(a) Mortgagee may declaze the Obligations immediately due and payable.
(b) Mortgagee shal] have the rigt�t to foreclose this MoRgage in accorda�ce
with applicable law.
(c) If pennitted by applicable law, Mortgagee may obtain a judgment for any
deficiency remaining in the Obligations due [o MoRgagee after application of all amounts
receivcd from the exercise of the rights provided in this Section.
(d) With respect to all or any part of the Property that constitutes pe�soualty,
may exercise the rights and remedies of a secured paRy u�der the Uniform Commemial
Code, as adoptcd in the State of Wisconsin.
(c) Mortgagee shall have the right, with notice to Mortgagor, to take
possession of the Property and collect income, including amounts past due and unpaid,
and apply the net procecds, over and above Mo�tgagee's costs, against the Obligations.
Mortgagee may exercise its rights under this paragraph either in person, by agent or
ILvougt� a receive�.
(� Mortgagee may pursue any and all other rights and remedies available
under the Development Agreement or applicable]aw or equity.
10.2 Attorneva' Fees; Expeuses. [n the even[ suit or action is institated [o
enforce any of the terms of this Mortgage, the Mortgagee shall be entiUed to roeovec its costs and
attomeys' fees at trial, on any appeal and on any petition for review, or other proceedings,
including without limi[a[ion, any arbitration oc bacikruptcy case or proceedings, io addition to all
other sums provided by law.
11. SECURITY INTEREST.
111 Fix[ure Filina. This i�strument constitutes a fina�cing statement filed as
a fixture filing in the O�cial Records of the County Recorder of the county in which the
Property is ]ocated with respect to any and all fixtures included within the tenn Property as used
855926�_4
herein and with respect to any goods or other personal propeRy Ihat may now be or hereafter
bccome such hxtures.
111 Form of MorteagdTax KeV Number. The Property is no[ homes[cad
property. The tax key oumber(s) of the Property are as set forth on attached Exhibit A.
l2. ENVIRONMENTAL LAWS. Mortgagor represents, warrants and covenants to
Mortgagee (a) that, except in compliance with Environmental Laws or as would have no materia]
adverse effect on the condition or value of the Property, during the period of Mortgagor's
ownership or use of the Property no substance has been, is or will be present, used, stored,
deposited, treated, recycled or disposed of on, under, in or about the Property in a focm, quantity
or man�er that, if known to be prescnt on, under, in or abou[ the Property, would require cleanup,
removal or some other remedial action ("Hazazdous Substance") under any federal, state or local
laws, cegulations, ordinances, codes oi rules (°Enviroumental Laws"); (b) that Mortgagor has no
knowledge of any prior use or existence of any Hazardous Substarice on the Property by any
prior owoer of or pe�son using [he Property; (c) [hat, without limiting [ne generality of the
foregoing, Mortgagor has no knowledge that the PropcRy contains asbestos, polychlorinated
biphenyl components (PCBs) or underground storage tanks; (d) that to Mortgagor's knowledgc
there are no conditions existing that would subject Mortgagor to any damages, penalties,
injunctive relief or cleanup costs in any governmental or regulatory action or third-party claims
rclating to any Hazardous Substance; (e) that Mortgagor is not subject to any court or
administrative proceeding, judgment, decree, order or citation relating to any Hazardous
Substance; and (� that Mortgagor in the past has beeq and at the present is, in compliance with
all Environmental Laws. MoRgagor shall indemnify and hold hannless Mortgagee, its directors,
officers, employees and agents from all loss, cost (including reasonable attomeys' foos a�d legal
expenses), liability and damage whatsoever directly or indirec[ly resulting from, arising out of, or
based upon (i)the presence, use, storage, deposit, t�eatment, recycling or disposal, at a�y time, of
any Hazardous Substance to or from the Property; (ii) the violation or alleged violation of any
Environmental Law, permit, judgme�t or license relating to the presence, use, storage, deposit,
tceatment, recycli�g or disposal of any Hazardous S�bstance to or from the Property, or (iii) the
imposition of any governme�tal licn for the recovery of e�vironmental cleanup costs expended
under any Environmenta] Law. Mortgagor shall immediately notify MoRgagee in writing of any
govemmental or regulatory action or Ihird-par[y daim instituted or threatened in connection with
any fiazardous Substance oq iq under or about the Property.
13. ASSIGNMENT OF RENTS AND LEASES. Mortgagor assigns and transfers
to Mortgagee, as additional sewrity for the Obligations, all ren[s that become or remain due or
are paid under any agreement or]ease for the use or ocwpancy of any part or all of the Property.
Until the occurrence of an event of default under this Mortgage or the Devclopment Agreement,
Mortgagor has the right to collect the reots, issues a�d profits from the Propertg but upon [he
occu�rence of such an event of default, and the giving of notice by Mortgagee to MoRgagor
declaring that wnstructive possession of the Property is in Mortgagee, Mortgagor's liccnse to
collect is terminated and Mortgagee shall be entitled to such rents, issues and profits and may,
after giving Mortgagor any notice and oppoRunity to perform required by law, notify any or all
tenants to pay all such rents directly to Mortgagee. All such payments shall be applied io such
manner as Mortgagee determines to payments required under this Mortgage a�d the Sewred
Obligations. This assignment shall be enforceable and Mortgagee shall be entitled to take any
855926�_4
action to enforce the assigunent (including notice to the tonants to pay directly to Mortgagee oc
[he commencement of a foreclosure action) without seeking or obtaining the appointment of a
receiver or possession of[he Property.
14. MISCELLANEOUS.
14.1 Time of Essence. Time is of the essence of this Mortgage.
14Z Bindine Uoon Successors and Assiens. Subject to the ]imitations stated
in this Mortgage on transfcr of Mortgagor's interest, this Mortgage sha0 be binding upon and
inure to the benefit of the parties, their successors and assigns.
14.3 Exoenditure bv Mort2aaee. If Mortgagor fails to comply with any
provision of this MoRgage within [he time allowed (including any cure period allowed by this
Mortgage after notice from Mortgagee), Mortgagee may elect to take the required action on
Mortgagor's behalf, and any amount that Mortgagee expends in so doing shal] be added to the
Obligations. Amounts so added shall be payable on demand with interest from the date of
expenditure at the rate past due amounts under the Development Agreement bear,but not, in any
event, at a rate higher than the maximum rate permitted by law. Such action by Mortgagee shall
not constitute a cure or waiver of the default or any other right or remedy which Mortgagee may
have on account of Mor[gagots default.
14.4 Notices. Any notice u�der this Mortgage shall be in writing and shall be
effective when either delivered in person oy if mailed, shall be deemed effective on the second
day after deposited as registered or certificd mail, postage prepaid, addressed to the paRy at the
address stated in this Mortgage. Any party may change its address for notices by written notice
to the other.
14.5 Invalid Provisions ro Affect No Others. lf any of the provisions
contaiced in the Development Agreement or this Mortgage shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining provisions in this Mortgage and the
Note shall not be affectcd.
14.6 Chanees in Writine. This Mortgage and any of its teRns may only bc
changed, waivcd, discharged or [eiminated by an instrument in writing signed by Ihe paRy
against which enforcement of the change, waiver, discharge or termination is sought. Any
agreement subsequently made by Mortgagor or Mortgagee rela[ing to Ihis Mortgage shall be
superior to the nghts of the holder of any intervening lien or encumbrance.
14.7 Aaalicable Law. The law of the state in which the Property is ]ocated
shall be applicable for the purpose of construing and detennining the validity of this Mortgage
and detevnining the rights and remedies of Mortgagee on default.
[SIGNATURE PAGE FOLIA W S]
855926]_4
IN WITNESS WHEREOF, Mortgagor has executed [his Mortgage as of the date firs[
written above.
MORTGAGOR:
OSHKOSHINVESTORS, LLC
By: OI MANAGEMENT CORPORATION,its Mauagei
By:
]ohn Pfefferle
Its: President
By:
Arthur H. Ra[hjen
I[s: Secretary
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
On Ihis day of , 2012 personally carne before me John Pfefferle and �
Ar[hur H. Rathjen, [o me known [o be [he Presiden[ and Secretary of OI Management
Corpora[ion, a Wisconsic� coipora[ion and Manager of Oshkosh Imes[ors, LLC, a Wisconsin
limi[ed liability company, and [he pecsons who execu[ed the foregoing insmunent aud
acknowledged the same.
No[ary Public, State of Wisconsin
My commission
85986T2_1
EXHIBIT A TO MORTGAGE
Real Property
Lot Three (3) of CERTIFIED SURVEY MAP NO. 1197 filed in Volume 1 of Certified Survey
Maps on Page 1197 as Document No. 602518; being purt of Lots O�e (I) throu� Eleven (11) in
Moore's Sabdivisioq in the First Wa�d, City of Oshkosh, Winnebago County, Wisco�sin,
excepting therefrom that portion thereof heretofore conveyed to the City of Oshkosh for
riverwalk purposes by Decd recorded in Document No. 1612548.
TaxID Number0100400000
855926]_4
EXHIBIT B TO MORTGAGE
Prior Encumbrances
Moagage in favor of First Business Bank in an amount not to exceed $7,500,000, plus intcrest,
fees, charges and protective advances.
855926]_4
Exhibit F
Projected Incxement Schedule
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