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DEVELOPMENT AGREEMENT Tx:4173067
�. 698641
Document Number � Document Title
This instrument drafted by:
Attorney David J. Praska
Oshkosh, WI 54903-1130
18, 2015
�t��TSTER'S OFFICE
WIfi�NEBAGO £OUNTY, IMI
RECORDED ON
1{�%05/2015 9:18 AM
IULIE PAGEL
R�GISTER OF DEEDS
RECQRDING FEE 3U.00
�A{�ES; 32
Recording Area
Name and Return Address
City Attorney Office
P O Box 1130
Oshkosh WI 54903-1130 i-.
Parcel Identification �'umbers (PIN)
0102220000
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DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is made as of the ��"�day of September, 2015 (the
"Effective Date") by and between the CITY OF OSHKOSH, WISCONSIN, a Wisconsin municipal corporation
(the "City"), and THE RIVERS PHASE II — OSHKOSH, LLC, a Wisconsin limited liability company (the
"Owner") and NORTHPOINTE DEVELOPMENT CORPORATION (the "Developer").
RECITALS
A. The Owner is an Affiliate of Northpointe Development Corporation (Northpointe). Northpointe
received an Option to develop and purchase the Property described herein according to the Development
Agreement recorded with the Winnebago County Register of Deeds on January 22, 2014, as Document Number
1656792. Northpointe assigns its Option/Purchase rights to the Owner, and pursuant to a separate agreement
with the Owner will develop the Property pursuant to this Agreement.
B. The Owner and Developer will lease certain Property located in the City of Oshkosh, Wisconsin,
from the City and from the City of Oshkosh Redevelopment Authority (the "RDA"). The leased Property is
described on Exhibit A attached hereto (the "Property") and is currently leased by the City from the
Redevelopment Authority beginning on or around June 1, 2006 (the "Prime Lease").
C. The Developer plans to construct on the Property a five story, 40 unit apartment building with
underground and surface parking pursuant to a plan approved by the Common Council on December 9, 2014
through Resolution 14-541 (the "Project") and thereafter acquire fee simple title to the Property following the
completion of certain environmental remediation.
D. The Property was previously subject to a Development Agreement, including various
Amendments thereto, which were all recorded with the Winnebago County Register of Deeds. The benefits and
burdens of this previous Development Agreement, including Amendments, have expired pursuant to the
Agreement's terms, and the Parties now desire to enter into this Development Agreement for the purpose
describing the applicable benefits and burdens and otherwise ensuring the proper development of the Property.
E. The Developer will develop and the Owner will acquire the Property in accordance with the
terms of this Agreement.
E. The Developer's ability to proceed with this Project is contingent upon the City providing
financial and other environmental remediation assistance for the Property to be developed pursuant to the terms
set forth in this Agreement.
F. The City iinds it to be in the public interest to utilize grants and other funding to assist the
Developer and Owner to undertake its Project in a manner that is consistent with the terms and conditions of
this Agreement.
G. The City finds that construction of the Project, and fulfillment of the terms and conditions of this
Development Agreement are vital and in the best interests of the City and its residents and will fulfill a public
purpose in accordance with state lawe
THEREFORE, in consideration of the foregoing Recitals which are incorporated hereto and made a part
of this Agreement, the promises, covenants and agreements contained in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged, the Developer, the Owner, and
the City promise, covenant and agree as follows:
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September 18, 2015
1. Previous A�reements. The Property described in this Agreement was previously subject to a
base Development Agreement, together with various Amendments thereto, which were recorded with the
Winnebago County Register of Deeds. The Parties agree that previous Development Agreements affecting the
Property, including Amendments, have expired and are without further effect. The Parties further agree that the
Property remains subject to all other encumbrances and associated burdens and benefits existing as of the date
of this Agreement, including without limitation leases, easements, covenants, municipal ordinances,
redevelopment plans, and tax increment distr�cts.
2. Definitions. As used in this Agreement, the following terms shall have the following meanings:
"Affiliate" means any entity that, directly ar indirectly, controls, is controlled by or is under
common control with a party to this Agreement or such party's successors and/or assigns. For purposes
of this definition, "control" means possessing the power to direct or cause the direction of the
management and policies of the entity by the ownership of a majarity of the voting securities of the
entity.
"City" means the City of Oshkosh, Wisconsin, a Wisconsin municipal corporation, its successors
and assigns.
"Citv Contribution" means payments provided by the City to the Developer as set forth in
Section 2(b), below.
"Completion Date" means the date the Project must be completed, which is December 31, 2016.
"Default" means the occurrence of one or more of the events described in Section l 7, below.
"EXpiration Date" means the date of termination of the TIF District No 21 under Wis. Stat.
§66.1105(7).
"Project" means the Developer's approved plan to construct a five story, 40 unit apartment
building with underground and surface parking on the Property as approved by the Common Council on
December 9, 2014 through Resolution 14-541, followed by the Developer acquiring fee simple title to
the Property upon the completion of certain environmental remediation
"Project Costs" means the total costs of acquiring and constructing the Project, including all
capital expenditures (or expenditures that could be treated as capital expenditures) and preliminary
expenditures (such as architectural, engineering, surveying, soil testing and similar costs that are
incurred in connection with the construction of the Project) and all other direct and indirect costs of
development of the Project in accordance with the Project Plans.
"Proiect Plans" means final detailed plans and specifications for the Project, and all other
improvements to be located on the Property.
"Property" means the parcel of land upon which the Project is located. The Property is part of
Lot 2 of Certified Survey Map 6408, which was recorded with the Winnebago County Register of Deeds
on October 5, 2009, as Document Number 1520619. After all environmental remediation has been
completed to the satisfaction of applicable governmental agencies, then the Property will be subject to a
new CSM which will formally divide Lot 2 of CSM 6408 and separate the Property from the larger
parcel currently described as Lot 2. The Property is referred to as the "Land Division Exhibit" in the
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September 18, 2015
attachment, which reflects the boundaries of the future Lot in the future CSM. CSM 6408 along with
the legal description of the Property are attached as Exhibit A.
"Term" means the period of time from the Effective Date of this Agreement to the Expiration
Date.
3. City Obli atg ions.
(a) Initial Lease. The City shall lease the Property to Developer and Owner pursuant to a
Lease in the form attached hereto as Exhibit B(the "City Lease"). The term of the City Lease shall
begin on a mutually agreed upon date set forth in the City Lease, and end on the date identified therein,
or on the date upon which the City conveys the Property to the Owner pursuant to subsection (c), below.
(b) Environmental Remediation Assistance. Groundwater and soil contamination identified
in the Wisconsin Department of Natural Resources Case Nos. 02-71-282521 and 06-71-547885 remains
present on the Property (the "Contamination"). Developer and Owner shall be responsible for the
remediation of the Contamination to the extent necessary to obtain a Certificate of Completion from the
Wisconsin Department of Natural Resources under its Voluntary Party Liability Exemption Program (a
"Certificate of Completion"). The City will provide Developer and Owner with a direct grant in the
amount of Four Hundred Twenty Thousand and No/100 ($420,000.00) (the "Citv Grant") to be utilized
by Developer and Owner solely for costs associated with remediating the Contamination on the
Property. The City shall also administer a grant for the beneiit of the Property in the amount of Two
Hundred Forty Seven Thousand Four Hundred Fifty Eight and No/100 Dollars ($247,458.00) being
provided by the Wisconsin Economic Development Corparation (the "WEDC Grant"), which is also to
be utilized solely for costs associated with remediating the Contamination on the Property. The
Developer and Owner are solely responsible for all environmental remediation costs in excess of the
City Grant and the WEDC Grant. The City Grant and WEDC Grant shall be administered in accordance
with the provisions set forth in Section 6, below.
(c) Conveyance of Propertv to Developer. Following the issuance of a Certificate of
Completion relating to the Property's Contamination, then the Redevelopment Authority will convey the
Property to the City pursuant to Section 5.01 of the Prime Lease, and then the City will convey fee
simple title to the Property to the Owner. Conveyances will be subject to all easements, covenants and
restrictions of record, municipal ordinances9 taxes (if any) for the year in which the conveyance to
Owner occurs, and any restrictions imposed on the Property as a condition of the Certificate of
Completion (the "Permitted Encumbrances").
4. Conditions Precedent to City's Obli at� ions. 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 provide the City Contribution) are conditioned upon the completion of each and every of the
following conditions to the City's satisfaction:
(a) On ar before the date of this Agreement, the Developer and Owner shall provide the City
opinions of its counsel reasonably acceptable to the City stating, among other things, that the persons
executing this Agreement on behalf of the Developer and Owner are authorized to do so, that the
Developer and Owner are duly authorized entry into this Agreement, and other matters as are reasonably
requested by the City.
(b) On or before the date of this Agreement, the Developer and Owner shall have provided
the City with (i) certified copies of their Articles of Organization and Operating Agreement, and (ii) a
current Certificate of Status issued by the Wisconsin Department of Financial Institutions.
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September 18, 2015
(c) On the date of each payment made to Developer and/or Owner pursuant to Section 2(d),
above, no uncured default, or event which with the giving of notice or lapse of time ar both would be a
default, shall exist under this Agreement.
(d) The City Common Council shall have approved a Capital Improvement Program that
includes full funding for the City Contribution identified in this Agreement.
Unless all conditions contained in this Section 3 are satisfied within the time period(s) described above
that are allowed for the satisfaction of such conditions, or such conditions are waived in writing by the
City within the allowed time period(s), then the City may at its option and at its sole discretion,
terminate this Agreement. In the event this Agreement is terminated, then no party to this Agreement
shall have any further liability or other obligation to the other parties.
5. Representations, Warranties of Developer and Owner. The Developer and Owner, jointly and
severally, represent and warrant to the City as follows:
(a) The Developer and Owner are �imited liability companies duly organized by the State of
Wisconsin, are current with all administrative entity formation requirements of the State, and have the
power and all necessary licenses, permits, and franchises to own their assets and properties and to carry
on its business.
(b) The Developer and Owner are 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
their business or financial condition.
(c) The execution, delive�ry and performance of this Agreement have been duly authorized by
all necessary limited liability company aetion of ihe Developer and Owner, and constitute the valid and
binding obligations of the Developer and Owner enfarceable in accardance with their terms, subject
only to applicable bankruptcy, insolvency, reorgan�zation, mara#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 and Owner's obligations
pursuant to this Agreement will not violate or conflict with the Developer's or Owner's Articles of
Organization or Operating Agreement, or any indenture, instrument or agreement by which the
Developer or Owner is bound, nor will the execution, delivery or performance of the Developer's or
Owner's obligations pursuant to this Agreement violate or conflict with any law applicable to the
Developer or to the Owner or to the Project.
(e) There is no litigation or proceeding pending ar affecting the Developer or the Owner or
the Project, or, to the best of the Developer's or Owner's knowledge, threatening the Developer or the
Project, that would adversely affect the Project or the Developer ar the Owner, or the enforceability of
this Agreement, the ability of the Developer to complete the Project or the ability of the Developer or
the Owner to perform their obligations under this Agreement.
(� To the best of the Developer's and Owner's knowledge, no default, or event which with
the giving of notice or lapse of time or both would be a default, exists under this Agreement, and the
Developer and Owner are not in default (beyond any applicable notice and cure period) of any of its
obligations under any other agreement or instrument to which the Developer or Owner is party or
obligor.
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September 18, 2015
6. Covenants of Develo�er and Owner. During the Term of this Agreement, the Developer and
Owner, jointly and severally, covenants to the City as follows:
(a) The Developer shall pay for all wark performed and materials furnished for the Project as
and when dueo
(b) On or before the Completion Date, the Project shall be completed (subject to matters of
force majeure), and in all other respects be ready for occupancy and use by the Owner.
(c) The Developer and the Owner shall conform and comply with, and will cause the Project
to be in conformance and compliance with, all applicable federal, state, local and other laws, rules,
regulations and ardinances, including without limitation, all zoning and land division laws, rules,
regulations, and ordinances, all building codes and ordinances of the City, and all environmental laws,
rules, regulations, and ordinances.
(d) The Developer and the Owner shall cause the Project to be constructed in a good and
workmanlike manner and substantially in accordance with the Project Plans and will promptly correct
any defects, structural or otherwise, in any construction or deviations from the Project Plans.
Construction of the Project shall be completed free of all liens and encumbrances except for those liens
and encumbrances permitted by this Agreement.
(e) The Developer and the Owner shall pay or cause to be paid prior to delinquency all
federal, state and local taxes in cannection with the Project. The Developer and the Owner shall pay
when due all operating eYpenses in connection with the Project. �
(� The Developer shall have in effect at all times, all permits, approvals and licenses that
may be required by any governmental authority or nongovernmental entity in connection wiih the
development, construction, management and operation of the Project.
(g) Except for a mortgage against the Developer's and/or the Owner's leasehold interest,
related assignments of Leases and Rents and other collateral documentation in favor of Lender securing
the Loan, neither the Developer nor Owner will mortgage or otherwise place a lien or encumbrance on
the Property without first obtaining the City's consent. The City understands that the Developer and
Owner retain private agreements between them that are related to the Project to which the City is not a
party, and further understands that in order to effectuate the agreement(s), an encumbrance between the
Owner and Developer may be placed against the leasehold interest. The City consents to such additional
encumbrance provided the encumbrance is only related to the Project, and that details of such
encumbrance be provided to the City upon request to verify the applicability of such encumbrance.
(h) The Developer and Owner, at their cost and expense, shall operate, maintain, repair and
replace (including without limitation, repairs and replacements of a capital nature) all elements of the
Project. The Developer's and Owner'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. Neither the Developer nor the Owner will defer any required maintenance, repair or
replacement (including, without limitation, repairs and replacements of a capital nature) of any element
of the Project and shall establish adequate reserves therefore.
(i) The Developer or Owner will not, without the City's consent, initiate any change in the
zoning classification of all or any portion of the Property.
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September 18, 2015
(j) The Developer and Owner shall comply with all requirements of the City Grant and the
WEDC Grant.
(k) The Developer and Owner shall be responsible for all costs of obtaining the Certificate of
Completion with respect to the Contamination in excess of the City Grant and WEDC Grant.
7. Grant Administration.
(a) City Grant. The City shall deposit the City Grant into a mutually approved escrow
account on or before October 1, 2015. The City Grant shall be utilized only for costs associated with
remediating the Contamination. All expenditures and requests to utilize the City Grant funds must be
approved in writing by the City prior to payment or release from the escrow account pursuant to the
terms of a separate disbursing agreement to be entered into by and among the Developer, the Owner, the
City and the escrow agent (the "Disbursing A�reement"). The City will respond to any request for
approval of a payment within five (5) business days. All such approvals shall be at the City's discretion.
Use of the City Grant shall be for two purposes: (i) the amount of $120,000 will be paid to AECOM to
monitor and oversee the remediation efforts on the City's behalf, and to advise the City on all issues
related to the remediation efforts; and (ii) the remaining amount will be spent on approved actual
remediation efforts. The City and/or the RDA will enter into an agreement with AECOM, and will
submit requests for payment for AECOM services to the escrow agent for payment up to $120,000.
Amounts owed AECOM for this project in excess of $120,000 shall be reimbursed by the Developer
and/or the Owner to the City. The Developer and the Owner shall be responsible for retaining all
necessary services and material necessary for remediation efforts, and shall be responsible for all costs
and amounts owed for remediation efforts in excess of the amount of the City Grant.
(b) WEDC Grant. The City is responsible far administering the WEDC Grant. The
Developer and Owner agrees to comply with all WEDC requirements for the WEDC Grant, and both
will hold the City harmless and indemnify the City for any violations of the WEDC Grant's terms and
conditions. This WEDC Grant is a reimbursable grant, and is intended to pay for trucking and landiill
tipping fees related to the remediation of the Contamination. WEDC reimbursement may only be
obtained after Developer and/or the Owner have paid for the costs for trucking and landfill tipping fees.
Developer and/or the Owner shall provide City with documentation sufficient to allow reimbursement
by WEDC. Regarding tipping fees specifically, Developer and the Owner are benefitting from the
utilization of City and RDA tipping rates. The City and its RDA will be billed for the Project's tipping
fees, which will then be passed along to the Developer and/or the Owner for payment to the City.
Payment shall be made upon receipt. The City shall then pay the tipping fees and submit a request to
WEDC for reimbursement. The City will forward to Developer and/or the Owner WEDC
reimbursement funds upon their receipt, subject to normal administrative processing. The City shall not
authorize any payments of City Grant funds pursuant to paragraph 6(a), above (other than payments to
AECOM), until Developer and/or the Owner have paid in full all outstanding invoices for tipping and
related fees.
8. Dama�e; Destruction.
(a) In the event of fire, damage, or any other casualty to any part of the Project, the
Developer and/or Owner shall, at their cost and expense, to rebuild, repair and replace the Project in the
condition it was in immediately prior to the casualty and shall otherwise complete the Project.
(b) 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/ar the Owner and approved by the City. The Developer and the Owner agree to apply any necessary
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September 18, 2015
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, the Owner, and the Title Company,
similar in form and content to the Disbursing Agreement entered into pursuant to Section 6, above. Any
amount required in excess of insurance proceeds for rebuilding, repair and/or replacement of the Project
shall be paid by the Developer or the Owner.
9. Costs. The Developer or Owner shall each year during the Term of this Agreement pay all
reasonable and itemized fees, costs and expenses actually incurred by the City, including administrative costs
and attorneys' and consultants' fees required as a result of the Project, the negotiation, preparation and
administration of this Agreement and all documents and agreements executed in connection therewith;
provided, however, that such annual costs owed by the Developer or the Owner to the City shall not exceed
Five Thousand and No/100 Dollars ($5,000.00), which maximum amount will increase by one and one-half
percent (1.5%) each year during the Term. Developer or Owner shall also pay all reasonable and itemized fees,
costs and expenses actually incurred by the City, including attorneys' and consultants' fees, in connection with
the enforcement of its rights against the Developer and/or the Owner under this Agreement, including without
limitation, the enforcement of such rights in any bankruptcy, reorganization or insolvency proceeding involving
the Developer or the Owner. The Developer and Owner will be jointly billed for such costs and payment is due
within 30 days of the date of invoice. Developer's and Owner's obligation to pay these costs is secured by the
City's right of special assessment pursuant to Section 11(d), below.
10. Cit '� Right to Cure Default. In case of a failure by the Developer and/or the Owner to procure
or maintain insurance, or to pay any fees, assessments, charges or taxes arising with respect to the Project or to
comply with the terms and conditions of this Agreement or any other document, contract or agreement effecting
the Project, the City shall have the right, but shall not be obligated, to effect such insurance or pay such fees,
assessments, charges or taxes or take such action as is necessary to remedy the failure of the Corporation to
comply with the documents, contracts or agreements effecting the Project, and, in that event, the cost thereof
shall be payable by the Developer and the Owner, to the City.
1 l. Real Estate Taxes and Assessments. The Developer or the Owner shall pay timely to the City
generally applicable property taxes assessed and levied by the City on the Property under applicable property
tax laws, rules, rates, regulations and ordinances in effect from time to time. Nothing in this Agreement shall
impair any statutory rights of the City with respect to the assessment, levy, priority, collection, and/or
enforcement of real estate property taxes. In addition, the Developer and the Owner agree to pay timely to the
City all special assessments that may be assessed or levied in connection with the Property under the applicable
special assessment laws, rules, regulations, ordinances and rates in effect at the time said special assessments
are assessed orlevied.
12. Security for Compliance.
(a) The Developer and the Owner shall not sell, transfer or convey the Property, any portion
thereof or any improvements thereon, to any person or entity unless such person or entity, for itself and
its successors and assigns, agrees to be bound by these terms to the same extent as the Developer and the
Owner.
(b) The Developer's and the Owner's obligations under Section 8 shall also be secured by the
City's right of special assessment or by any other remedy available to the City by statute. In connection
therewith, the Developer and Owner: (i) acknowledge that the City has incurred costs for the payment or
reimbursement of the Project Costs; (ii) agree that the amount of the special assessment, if levied
consistent with this Agreement, constitutes a proper exercise of the City's authority to levy special
assessments in accordance with Wis. Stat. §66.0701; (iii) agree that the allocation of the City's costs to
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the Property is reasonable and commensurate with the special benefits provided to the Property; (iv)
agree that the amount being assessed in accordance with this Agreement does not exceed the value of
the benefits accruing to the Property from the City's expenditures identified herein; (v) consent to the
imposition and levy of such special assessments; (vi) agree that the approval of this Agreement by the
Oshkosh Common Council shall be sufficient to authorize the levy of special assessments in accordance
herewith, and that no further procedural steps need be taken by the City; (vii) waive all special
assessment notices, hearings and appeals provided by Wis. Stats. §66.0701 or §66.0703; and (viii)
acknowledge that the City is relying on the terms of this Agreement, and specifically the terms of this
subsection, that such reliance is reasonable, and that the City's payment of its obligations to the
Developer and the Owner under this Agreement will be detrimental to the City if the provisions relating
to special assessments are not enfarced and that a failure to enforce such agreements would be
inequitable.
13. Option to Purchase Nearby Property.
(a) The City and Northpointe Development Corporation (Developer) on November 11, 2014
entered into an Option to Purchase certain City-owned property identified as the "Southeast [sic] Corner
of Marion Road and Jackson Street" whereby Northpointe obtained the ability to purchase the property,
more accurately described as the Southwest Corner of Marion Road and Jackson Street (Option
Property) by exercising its Option to purchase it by complying with certain conditions. The parties wish
to mutually revoke this November 11, 2014 Option in its entirety and enter into a new Option to
Purchase the same property subject to the terms within this Development Agreement.
(b) Developer shall have the Option to purchase the property at the Southwest Corner of
Marion Road and Jackson Street, and identified as "Parcel J Option to Purchase" on the map attached
hereto as Exhibit D. This option shall be exercisable by Developer giving written notice of its intention
to exercise its Option, along with the submission of a complete, formal proposal referenced in paragraph
12.b., below, to the City on or before 11:59 p.m. on the third (3`d) anniversary of the Effective Date.
Upon receipt of the Developer's Notice and formal proposal, the appropriate City official is authorized
to acknowledge receipt of the same. Upon submitting its Notice and Proposal, Developer shall be
obligated to purchase from the City and the City shall be obligated to convey to Developer good and
marketable fee simple title to the Option Property for the price and upon the terms set forth herein. The
Developer may assign this right to an Affiliate with the consent of the City.
(c) The purchase price for the Option Property shall be One Dollar ($1.00). The terms of the
Option include, but are not limited to:
i. The buyer and seller agreeing on a mutually acceptable Development Agreement;
ii. Developer's Compliance with the approved Marion Road / Pearl Avenue
Redevelopment Area Phase II Development Guidelines;
iii. Developer must submit to the City a formal proposal within .the time-frame
otherwise identified in this Option. The Formal proposal shall include an application and scaled
site plan detailing building elevations site plan for a planned development;
iv. Approval of the final development plan by the Redevelopment Authority and
Common Council;
v. Developer must provide lending finance commitment; and,
September 18, 2015
vi. Obtain project approval under Planned Development Overlay provisions.
(d) The Developer acknowledges that the Option Property will be sold in "AS-IS" condition,
without any representations or warranties by the City whatsoever (except for warranties of title). Title to
the Option Property shall be conveyed to Developer free and clear of all liens, claims and encumbrances,
except municipal and zoning ordinances, recorded easements, covenants and restrictions, general real
estate taxes and assessments, any matters which would be disclosed by an accurate survey of the Option
Property, any matters created by Developer, or their respective agents, and any other matters of record
except mortgages, judgments or other liens securing obligations of the City. The Developer shall be
responsible for the premiums for any title insurance desired by the Developer.
(e) The Developer's option to purchase the Option Property shall expire and be null and void
at the end of the three (3) year period noted herein.
14. Restrictions on the Use or Sale of Property. The Property is included within the Marion Road /
Pearl Avenue Redevelopment Area and within Tax Increment District Number 21. The City and RDA have
invested significant amounts of time and tax dollars into this Property as well as the overall Redevelopment
Area and the Tax Increment District. Therefore, all parties acknowledge that it is in the public's best interests
that the Property remain in the ownership of a taxable entity, and that additional deed restrictions be prohibited
that would inhibit potential uses for any development on the Property. The Property shall not be conveyed to or
owned by any tax-exempt entity while TID #21 remains open. No additional deed restriction shall be placed on
the Property which would constrain or limit the use of the Property in any way while TID #21 remains open.
Both of these prohibitions shall expire when TID #21 is closed by the City in 2033, and more specifically the
restrictions shall expire on December 31, 2033 without further notice or action. The City and Authority may, at
its discretion, insert these two restrictions within the deed and transfer documents at the time of conveyance to
Developer.
15. Indemnifications.
(a) The Developer and Owner hereby indemnify, defend and hold the City harmless from
and against all loss, liability, damage and expense, including reasonable attorneys' fees, suffered or
incurred by the City to the extent caused by the following: (a) the failure of the Developer or the Owner,
or their contractors, subcontractors, agents, employees, or invitees to comply with any environmental
law, rule, regulation or ordinance, or any order of any regulatory or administrative authority with respect
thereto; (b) any release by the Developer or the Owner, or their contractors, subcontractors, agents,
employees or invitees of petroleum products or hazardous materials or hazardous substances on, upon or
into the Project; (c) any and all damages to natural resources or real property or harm or injury to
persons resulting or alleged to have resulted from any failure by the Developer, the Owner, and/or their
contractors, subcontractors and/or agents to comply with any law, rule, regulation or ordinance or any
release of petroleum products or hazardous materials or hazardous substances as described in clauses (a)
and (b) above; (d) claims arising on the Property under the Americans with Disabilities Act, and any
other laws, rules, regulations or ordinances; (e) claims for third parties for injury to or death of any
person on the Property; and (� the failure of the Developer or Owner to maintain, repair or replace as
needed any portion of the Project.
(b) The term "hazardous substances" means any flammable explosives, radioactive materials,
hazardous wastes, toxic substances, or related materials, including, without limitation, any substances
defined as ar included in the definition of "hazardous substances," "hazardous waste," "hazardous
materials," or "toxic substances" under any applicable federal or state or local laws or regulations.
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September 18, 2015
16. Insurance.
(a) The Developer and/or Owner shall maintain the following insurance policies issued by
insurers with a rating of at least "A-" and in a financial size category of at least "X" as established by
A.M. Best Company and licensed to do business in the State of Wisconsin: (i) property insurance on the
Property with coverage limits equal to the full replacement cost of the building and contents; (ii)
commercial general liability insurance with limits of $1,000,000 per occurrence and $5,000,000 in the
aggregate; (iii) statutary worker's compensation insurance; and (iv) automobile liability insurance with a
combined single limit of $1,000,000.
(b) Each insurance policy shall, require the insurer to provide at least thirty (30) days prior
written notice to the City of any material change ar cancellation of such policy.
17. Nondiscrimination. The Developer and Owner shall not use the Project in any manner to permit
discrimination or restriction on the basis of race, creed, ethnic origin ar identity, color, gender, religion, marital
status, age, handicap or national origin, and the Developer shall construct and operate the Project in compliance
with all laws, rules, regulations and ordinances relating to discrimination or any of the foregoing.
18. Default. The occurrence of any one or more of the following events shall constitute a default
hereunder:
(a) The Developer, Owner, or any successor shall fail to pay when due any amount due from
it under this Agreement; or
(b) Any representation or warranty made by the Developer, the Owner, or any successor in
this Agreement or any document delivered by the Developer, Owner, or any successor pursuant to this
Agreement shall prove to have been false in a material way as of the time made or given; or
(c) The Developer, Owner, or any successor shall breach or fail to substantially perform
timely or observe timely any of its covenants or obligations under this Agreement, and such failure shall
continue for thirty (30) days following notice thereof from the City to the Developer and/or Owner (or
such longer period of time as is necessary to cure the default as long as the Developer or the Owner have
commenced the cure of the default within the thirty (30) day period and is diligently pursuing to cure the
default and as long as the default is cured not later than one hundred eighty (180) days following notice
thereof from the City); or
(d) The Project is not substantially completed on ar before the Completion Date (subject to
matters of force majeure); or
(e) The Developer or the Owner shall: (i) become insolvent or generally not pay, or be
unable to pay, or admit in writing its inability to pay, its debts as they mature; or (ii) make a general
assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its
assets; or (iii) become the subject of an order for relief within the meaning of the United States
Bankruptcy Code, or file a petition in bankruptcy, for reorganization or to effect a plan or other
arrangement with creditors; or (iv) have a petition or application filed against it in bankruptcy or any
similar proceeding, and such petition, application or proceeding shall remain undismissed for a period of
ninety (90) days or more, or the Developer or Owner shall file an answer to such a petition or
application, admitting material allegations thereof; or (v) apply to a court for the appointment of a
receiver or custodian for any of its assets or properties or have a receiver or custodian appointed for any
of its assets or properties, with or without consent, and such receiver shall not be discharged within
ninety (90) days after its appointment; or (vi) adopt a plan of complete liquidation of its assets.
11
September 18, 2015
19. Remedies. Upon the occurrence of any default, without further notice, demand or action by any
kind by the City, the City may, at its option, pursue any one or more of the following remedies concurrently or
successively:
(a) Pursue any or all of the rights and remedies available to the City at law and/or in equity
against the Developer, the Owner, and/or the Project.
(b) The Developer and the Owner have represented to the City that they maintain a separate
agreement which describes their respective obligations to perform the tasks described in this
Development Agreement and to thereafter receive the benefits for performing these tasks. The City and
the Redevelopment Authority remain only interested in the appropriate and lawful use of public funds,
the development of the Property, and the timely completion of the Project. Therefore, the Parties agree
that the Developer and the Owner are jointly responsible to the City for all terms, conditions, warranties,
and covenants described herein, regardless of whether any description uses the connector "and," "or," ar
"and/or." The City may take any enforcement action against either or both at its sole discretion.
(c) Except as may be otherwise specifically set forth herein, no remedy herein conferred
upon the City is intended to be exclusive of any other remedy and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Agreement, and/or available
to the City under any other covenants, restrictions, documents or instruments, and/or now or hereafter
existing at law ar in equity. No failure ar delay on the part of the City in exercising any right or remedy
shall operate as a waiver thereof nor shall any single or partial exercise of any right preclude other or
further exercise thereof or the exercise of any other right or remedy. Notwithstanding any of the
foregoing authorizations, the City shall have no duty or obligation whatsoever with respect to any of the
matters so authorized.
20. No Personal Liabilitv. Under no circumstances shall any council member, official, director,
attorney, employee, or agent of a party have any personal liability arising out of this Agreement, and no party
shall seek or claim any such personal liability.
21 e Citv Authorization. The execution of this Agreement by the City is authorized by Common
Council Resolution No. 15-356 dated July 28, 2015.
22. Miscellaneous.
(a) Except as otherwise specifically set forth herein, the respective rights and liabilities of the
City and the Developer and Owner in this Agreement are not assignable or delegable, in whole or in
part, without the prior written consent of the other party. Provisions of this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties.
(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 the Owner, and then only to the extent
specifically set forth in writing.
(c) All material applicable agreements, representations, warranties, covenants, liabilities and
obligations made in this Agreement and in any document delivered pursuant to this Agreement shall
remain effective during the Term of this Agreement.
(d) All communications or notices required or permitted by this Agreement shall be in
writing and shall be deemed to have been given: (i) upon delivery to an officer or the person entitled to
such notice, if hand delivered, ar(ii) two business days following deposit in the United States Mail,
12
September 18, 2015
postage prepaid, or with a nationally recognized overnight commercial carrier that will certify as to the
date and time of delivery, air bill prepaid, or (iii) upon transmission if by facsimile, any such
communication or notice shall be addressed as follows, unless and until any such party notifies the other
in accordance with this section of any change of address:
If to the Citv: City of Oshkosh
Attn: Director of Community Development
215 Church Avenue
Post Office Box 1130
Oshkosh, WI 54903-1130
Facsimile No. (920) 236-5053
With a Copy to: Oshkosh City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI, 54903-1130
Facsimile No. (920) 236-5106
If to the Owner: The Rivers Phase II — Oshkosh, LLC
230 Ohio Street, Suite 200
Oshkosh, WI 54902
Attn: Andrew Dumke
Facsimile No. (920) 230-6484
If to Developer: Northpointe Development Corporation
230 Ohio Street, Suite 200
Oshkosh, WI 54902
Attn: Callan L. Schultz
Facsimile: (920) 230-6484
With a cop ��to: Attorney Jason J. Hirschberg
(for both Owner Hirschberg Law, LLC
and Developer) 601 Oregon Street, Suite A
Oshkosh, WI 54902
Facsimile No. (920) 744-0102
(e) This Agreement and the documents executed pursuant to this Agreement contain the
entire understanding of the parties with respect to the subject matter hereof. There are no restrictions,
promises, warranties, covenants or understandings other than those expressly set forth in this Agreement
and documents executed in connection with this Agreement. This Agreement and the documents
executed in connection herewith supersede all prior negotiations, agreements and undertakings between
the parties with respect to the subject matter hereof
( fl This Agreement is intended solely for the benefit of the Developer, Owner, and the City,
and no third party (other than successors and permitted assigns) shall have any rights or interest in any
provision of this Agreement, or as a result of any action or inaction of the City in connection therewith.
Without limiting the foregoing, no approvals given pursuant to this Agreement by the Developer,
13
September 18, 2015
Owner, or the City, ar any person acting on behalf of either of them, shall be available for use by any
contractor or other person in any dispute with the construction of the Project.
(g) This Agreement shall be governed by, and construed and interpreted in accordance with,
the laws of the State of Wisconsin applicable to contracts made and wholly performed within the State,
with the venue of any dispute being Winnebago County, Wisconsin.
(h) This Agreement may be executed in several counterparts. Each counterpart shall be
deemed an original, with each counterpart collectively constituting but one in the same Agreement.
Facsimile signatures shall be deemed original signatures for all purposes of this Agreement.
(i) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be in effect to the extent of such prohibition or enforceability without
invalidating the remaining provisions of this Agreement in such jurisdiction or affecting the validity or
enforcement of any provision in any other jurisdiction.
(j) Nothing contained in this Agreement or any other documents executed pursuant to this
Agreement shall be deemed or construed as creating a partnership or joint venture between the City, the
Owner, and the Developer, or between the City and any other person, or cause the City to be responsible
in any way for the debts or obligations of the Developer or the Owner, or any other person, or cause the
Developer or the Owner to be responsible in any way for the debts or obligations of the City or any other
person. Each party represents, warrants and agrees, for itself and its successors and assigns, not to make
any assertion inconsistent with its acknowledgement or with the acknowledgement and agreement
contained in the preceding sentence in the event of any action, suit or proceeding, at law or in equity,
with respect to the transactions which are the subject of this Agreement and this paragraph may be
pleaded and construed as a complete bar and estoppel against any assertion by or for a party and its
successors and permitted assigns, that is inconsistent with its acknowledgement and agreement
contained in the preceding sentencee
(k) Time is of the essence as to each and every obligation or agreement contained in this
Agreement.
(1) If any party is delayed or prevented from timely performing any act required under this
Agreement other than the payment of money, by reason of fire, earthquake, war, terrarist act, flood, riot,
strikes, labor disputes or shortages, government restrictions, judicial 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 performance of any such act shall be
extended for a period equivalent to such delay.
(m) This Agreement, or a memorandum of this Agreement, may be recorded in the office of
the Register of Deeds of Winnebago County, Wisconsin, in lieu of the full Agreement. It is understood
by the parties that until Expiration Date, this Agreement will run with the land and will be binding upon
the Property.
(n) The Developer and Owner shall enter into a separate storm water management facility
operation and maintenance agreement with the City that will address storm water issues related to the
Property. In the event that storm water issues arise prior to the time this storm water agreement is
signed by the parties and recorded with the Register of Deeds, then Developer and the Owner shall fully
comply with the grading and drainage plan for the Property on file with the City Department of Public
Works and all applicable storm water codes. The City shall have the authority to enter the property and
resolve all grading and drainage issues at Developer's expense including, without limitation, special
14
September 18, 2015
I
charges for such work being placed against the Propertye This Agreement inures to the benefit of the
City and its successors and assigns.
(o) The headings to this Agreement are for reference only and are not intended to modify any
of the terms and conditions of this Agreement.
(p) Nothing contained in this Agreement is intended to or has the effect of releasing the
Developer or the Owner from compliance with all applicable laws, rules, regulations and ordinances in
addition to compliance with all the terms, conditions and covenants contained in this Agreement.
(q) This Agreement is the product of negotiation between the parties hereto and no term,
covenant or provision herein or the failure to include a term, covenant or provision shall be construed
against any party hereto solely on the basis that one party or the other drafted this Agreement or any
term, covenant or condition contained herein.
(r) Upon mutual consent of the parties to this Agreement, which consent any party can
withhold in its sole discretion, the parties can agree to submit disputes arising under this Agreement to
alternative dispute resolution.
(s) All amounts not paid when due hereunder shall bear interest at the rate of twelve percent
(12%).
23. Other A�provals. In addition to any approvals required under this Agreement, the Developer
and/or Owner shall be required to obtain all approvals, consents, and licenses as may be required by any
governmental or non-governmental authority in connection with the Project, including, without limitation, all
building permits, Project Plan approvals, storm water approvals, and zoning approvals. The Developer's and/or
the Owner's compliance with the terms of this Agreement sha11 not relieve the Developer ar the Owner from
complying with all applicable federal, state and local laws, rules, regulations and ordinances in connection with
the Project and to the extent any governmental or non-governmental entity imposes different or more restrictive
conditions on the Developer, the Owner, or the Project, compliance by the Developer and the Owner with the
terms of this Agreement shall not relieve the Developer from complying with such different or more restrictive
conditions. Likewise, any less restrictive conditions imposed on the Developer, the Owner, or the Project by
any governmental or non-governmental authority shall not relieve the Developer, the Owner, or the Project
from complying with all of the terms and conditions of this Agreement.
[SIGNATURE PAGES FOLLOW]
IS
September 18, 2015
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
CITY OF OSHKOSH, WISCONSIN
By:
Ma k A. Rohloff
Its: City Manager
By. . �_
�
Pamela R. Ubrig
Its: City Clerk
Approv as to form:
A. Lore
Its: City Attorney
I hereby certify that the necessary provisions have been made to pay the liability which will accrue
under this Agreement.
����� �
Trena Larson, Finance Director
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
Personally came before me this �� day of �C �E ��ti, 2015, the above-named Mark A. Rohloff
and Pamela R. Ubrig, to me known to be the City Manag r and City Clerk of the City of Oshkosh, Wisconsin
and the person who executed the foregoing document and acknowledged the same.
r-,,
�F 9�
_� J�u� n� �-
* rl �'v,� � l� � � �� �
Notary Public, State of G(.1 �SC Yi ; r
My commission: �7 C� v�G I�
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE]
16
September 18, 2015
STATE OF WISCONSIN
COUNTY OF WINNEBAGO
THE RIVERS PHASE II — OSHKOSH, LLC
By: _ �' �
Andrew J. Dumke, Managing Member
)
) SS
)
On this �� day of ('„�,,�,� , 2015 personally came before me Andrew J. Dumke, to me known
to be the person who executed the foregoing instrument and acknowledged the same.
STATE OF WISCONSIN
COUNTY OF WTNNEBAGO
� �. �
������ ,�.�,v � � dti�ti�� ���
Notary Publ c, State of Wis on in
My commission expires: 7!P dC��� .
NORTHPOINTE DEVELOPMENT CORPORATION
By: - w
Callan L. Schultz, President
)
) SS
)
�
On this � day of ��E,rvL{��L. , 2015 personally came before me Callan L. Schultz, to me known
to be person who executed the foregoing instrument and acknowledged the sarne.
�� (" (,
ti�nti : v��tic��� ���-
Notary Pub ic, State of Wi con ir�
My Commission Expires; `7 �, �p �
17
September 18, 2015
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CERTIF(ED SURVEY MAP
N1. OF lOT 1 AND LOT 2 OF C,_fZT1FlE0 SURYE'( fJAP HU�10ER 5879.
6E1NG A PART OF T}iE SOUTH 1/2 OF THE NORiN&t5i 1/4 /�1� PART OF TNE
NOKTH 1/2 OF 7HE SOUTHEIST t/4 OF SfG710N 23, TOYlNSHI? t8 ttORTH. KP1�GE t6 fAST,
FlRSi WAit{), CfTY OF OSHKOSH, WINNEBAGQ COUN'fY, W15CONSIN.
SURVEYORS CERTIFICATE
�' C��o
AECOM
1035 Kspler Orive
Grsen Bay, i'll 55311
920,<fi8.t978
wnw.aecom.com
c�»�s�tmxow er +�:wu
I, Craig D. Honnen, registared lond surveyor, hereby cerfify. Thot in fuli compliance with the pravislons of Chapter 236,
aec3ion 23fi.34 of the IYisconsin Stotutes, the Land Subdivision Ordinonce of Mfinnebago Counfy, and the City of Oshkosh,
and under the direction o( the Rodevelopment Authority of the Gty o( Oshkosh, owner of sald land, I hava nuneyed, dir�ded
and mopped the foflowing lond peing all of Lof 1 and tot 2 af Cerfitied Survey IAap Number 5879. Being a port o( the
Soutb 1/2 0( the Norlhaast 1/4 and part of the North t/2 of the Soufheast S/4 of Section 23, Township 18 North,
Ranga i5 Easf, �rot K'ard, Ciiy of Oshkosh, Winnebago Co�nty, weconsln, more fufly destnbed as followsr
Commencing oE the Eost '� corner of said Section 23; thence 501`17'26"E afong the aast line of the Northeast t/4 of
eald aeotion, 403,23 ftet; fhence S86'42'34'W, 69.52 feet to a point on lhe west rignt—of—way e( Jacksoo Street and the
eosttrty line of Lot 1 of Certified Survey fAap Number 5879, thal eiso being ihe Pofnt of Beg(nning; thence along said
right—of—way and the eosteriy line of said Lof 1 SOt'24'37'E, 231.05, feet; thence aiong tha easterly line of soid tot 1
588'JS'23'W, 30.00 feet; thence continuing along the easferiy Ilne ot said Lot 1 SO5'66'42�'/, 88,04 feat Eo the southeost
corner of said Lol t; thence olang khe souiherfy line oS said lot S N85'43'26'W, 656.90 Feet; thence N62'10'261Y, 816.83
(eet along the southerly line oi soid Lot 1 and the southerly Ilne o! Lot 2 0( Certified Survey Map Num6er 5874 to the
southwesterly comer ot soid Lot 2: thence olong tha westerly iine of eaid Lot 2 N3TD5'00'E, 2t4.73 .fee� to a point on
the southeriy righf—of—woy of Marion Rood ond the northwesi corner ol sald Lot 2; thence olong soid sautheriy
righl--of—woy S65'46�22'E, 886.59 feet; thence eontinufng along said southeriy right—of—woy S65'54�10'E, f35.02 feet;
thence continulnq olang nald souEherly right—of—way N85'20�29�E, 60.73 feet; thence confinufng olong said southeriy
right—of—way N86'33'48'E, 194.29 teef; thence con@nuing along sa(d southeriy right—of—woy 54.99 feet on a curva lo tha
right having o rodiva of 35.00 (eet, v�hose chord bears S4b'25'24'E, 49.51 feet to a point on the westerty righf—of—woy of
Jockson Sireet and tho Point of Beginnirtg.
Said poree! cpnto3ns 370,656 square feet or 8.503 acres more or less.
Sold parcet ia aubJect to eosemants of record.
Thot the survay o; sa)d land was done under my dircct supervision and the map hereon Is a true pnd occ�rate
represeniaUon of the e�terior boundaries ond the divisio� thereof.
�����ttlt't�J���
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c�o: wws� s-zew � '�cRAIG
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s�ueea zo, 2oos =,� : HpNSEN '; � �
a+is ts Nr oRictxu surrv� S•2840
DOCUTA4R IF THf 9R6FESSSDK4. ��, APPLE70N :�
SE/�L 15 fAtPRlNTED IN RED MfD i ' WI �
51GNEB IN BIUE �i �•, , •' �`
� A, .,� „ . ����
� �
'����l�yd SIJFI���`��
��1!�lutitii
?� �'1 d �J I � � rs �
CERTIFlED SURVEY MAP
ALl. OF LOT 1 AND LOT 2 OF CE3zT1FlED SUKJEY A�AP NUAtBER 5879.
B�NG A PARi OF THE SOUTN 1/2 OF 7HE NOft�HE1ST i/4 AND PAR7 OF THE
t10R'M 1J2 Or iHE SOIiTNEASf 1/4 OF SECiION 23, SOWttSHiP i8 NOftTH, fWiGE 16 FASf,
FlRSt' WARD, C[iY OF OSHKOSH, W1NNE&4C0 CAUtS7Y, WiSCONSIN,
MUI�ICIPAL dWNER�S CERTiF(CATE
� l� �
AECOM
1035 Kepier pm�e
Grean Bay, Wl 54395
926.<66.59T6�
WhM'.a9COtn.qtlt
Cep.c',}.4mS3J0 B�. /EN�+
'fhe Redevetopme�t Aukhority of tha Gty of Oshkosh, o separate body publle organized and exl�ting under and by virtue of
the Lown of the Stote of Wieconsin, as owner, doee hereby certify thaf said Authority caused the land described to be
surveyed, divided, and mapped as represented on fhis map, in accordance with the provisions of Chapter 236 of the
1Yscone'rn Statutes and the Land Subdivision Ordinance o( the City of Oshkosh.
in iYtness rrhareaf, the eaid Redevelopmertt Auihority, has caused ihese presents to be signed by
Jatl�son R. Ra�uiey— — ita Bx�ukive Dire�tor , and
eounleniqned by �S ��
C�hicOSk1
�� doy of Septen�x
ftedavelopment Authority of the City of Oshkosh:
Joc s n . Kinney
Exe�Direcior
f ��
Thomas Belter
Choirman
its �`��
�ia-rmcin � th�s
20 � .
at
STATE OF WISCONSIN)
, .:SS
WINkE9AC0 COUf.'iY)
Persona(ly came 6efore me thie �h doy o( �p�'�'s , 2009 the atorementioned representatives ot
the Redevelopment Avthority of the City of Oshkosh, known to mn to be the persone who executed the forgo(ng instrumenf
on ack awledged the sam . '
�-��1��"!"' ' n
Notery`Pu61tc, "� Aty.commiss(on ezplres V�/����
4lnne6ogo County, Stake o( Wisconsin
1� � • ..• . ��� �. �•
:17 :t • `• '
Tnls Certifled Survey Map of port ot the Souih 1/2 ot the Northeast 1/4 ond part oi lhe Norfh 9/2 of the Soufheast 1/4
in Sectiort 2J, �Townshlp E8 North, ftange 16 fast, Firsf Ylo�d, Cify of Oshkosh, Winnebago County, Vfisconaln, is h<reby
opprovad. - �
�.%....� � zy a�
Cit a njng CornmissEon Dote �
Repre�entaEive
. ``��t4t4�Pt1lf!
`,�.��gGONS� �''�, :
:° '�c�� �'N :.
':�'��-t-�— �/`yo y = � . NA° Er� �=.
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LEGAL DESCRIPTION
The Rivers 1.5 Lot
Oshkosh, WI
A parcel of land, being a part of Lot 2 of Winnebago County Certified Survey Map No. 6408,
located in the NE 1/4 of the SE 1/4 of Section 23, Township 18 North, Range 16 East, First
Ward, City of Oshkosh, Winnebago County, Wisconsin, being more particularly described as:
Beginning at the Northwest corner of said Lot 2 of Certified Survey Map No. 6408, said point
being on the southwesterly right-of-way line of Marion Road;
Thence S65°-46'-22"E, along said southwesterly right-of-way line, 238.54 feet;
Thence S24°-13'-36"W, 149.48 feet to the beginning of a curve to the right, having its radius
point bearing northwesterly, 290.00 feet;
Thence southwesterly 193.16 feet along the arc of said curve, the long chord of which bears
S85°-11'-09"W, 189.61 feet to a point on the northeasterly line of Outlot 1 of Certified Survey
Map No. �879 and the end of said curve;
Thence N62°-10'-26"W, along said northeasterly line of Outlot 1, 72.91 feet to the southwest
corner of said Lot 2 of Certified Survey Map No. 6408;
Thence N24°-13'-38"E, along the westerly line of said Lot 2, 236.95 feet to the Point of
Beginning and the end of this description;
Containing 51,843 square feet, or 1.190 acres of land.
LEGAL I)ESCRIPTION
Outlot Adjacent to The Rivers 1.5 Lot
Oshkosh, WI
A parcel of land, being a part of Lot 2 of Winnebago County Certified Survey Map No. 6408,
located in the NE 1/4 of the SE 1/4 of Section 23, Township 18 North, Range 16 East, First
Ward, City of Oshkosh, Winnebago County, Wisconsin, being more particularly described as:
Commencing at the Northwest corner of said Lot 2 of Certified Survey Map No. 6408, said point
being on the southwesterly right-of-way line of Marion Road;
Thence S65°-46'-22"E, along said southwesterly right-of-way line, 238.54 feet to the Point of
Beginning of this description;
Thence continuing S65°-46'-22"E, along said southwesterly ri�ht-of-way line, 20.00 feet;
Thence S24°-13'-36"W, 253.21 feet to the northeasterly line of Outlot 1 of Certified Survey Map
No. 5879;
Thence N62°-10'-26"W, along said northeasterly line of Outlot l, 186.14 feet to the beginning of
a curve to the left, having its radius point bearing northerly 290.00 feet;
Thence northeasterly 193.16 feet along the arc of said curve, the long chord of which bears
N85°-11'-09"E, 189.61 feet;
Thence N24°-13'-36"E, 149.48 feet to the Point of Beginning and the end of this description;
Containing 11,519 square feet, or 0.264 acre of land.
Descriptions by: Ken Wolf, PLS-1421, AECOM
June 25, 2015
Project No. 60432283
�)C� I blt . `� cF�
DocumentNumber
Lease Agreement
Document Title
This LEASE AGREENIENT (the "Lease"), made and entered
into this o��day of �, �, 2015, is by and between the City of
Oshkosh, (CIT� a Wisconsin municipality, and the Redevelopment
Authority of the City of Oshkosh, (RDA) , with their principal offices
located at 215 Church Ave., P.O. Box 1130, Oshkosh, Wisconsin
54903-1130, (collectively "Lessor") and The Rivers Phase II —
Oshkosh, LLC (Rivers In 230 Ohio Street, Suite 200, Oshkosh,
Wisconsin 54902 ("Lessee"):
RECITALS
RDA owns real property within the Marion Road/Pearl Avenue
Redevelopment Phase II Area (Project), in the City of Oshkosh,
Winnebago County, Wisconsin.
Area
Name and Return Address
City Attorney's Office
215 Church Ave. P.O. Box 1130
Oshkosh, WI 54903-1130
0102220000
Property Identification Number
2. The Project includes real property to be redeveloped both North of Marion Road ("Project — North") and
South of Marion Road ("Proj ect — South"). The properiy included in this Lease (Leased Premises) is within
Project — South, and in particular is a part of Lot 2 of Certified Survey Map 6408, which was recorded with
the Winnebago County Register of Deeds as Document Number 1520619 on October 5, 2009. A copy of
CSM 6408 and the specific part of Lot 2 that is subject to this lease is attached as E�ibit A and is fully
incorporated into this Lease.
3. RDA has leased its real property within the Project area to the CITY for the purpose of facilitating its
redevelopment.
4. Lessor and Lessee have entered into a Development Agreement ("Agreement") dated. ��" , 2015,
and recorded with the Winnebago County Register of Deeds as Document Number on
, 2015, for the purpose of constructing a multi-family residential development on the
Leased Premises. A copy of the Agreement is not attached hereto but Lessee acknowledges that it read and
signed the Agreement, retains a copy of the Agreement, is familiar with it and agrees to be bound by its
terms as it may pertain to the development of the Leased Premises. A copy of the development footprint is
attached at Exhibit B and incorporated herein.
5. Environmental remediation is required to be performed on the Leased Premises and certain funding sources
for this environmental remediation require that Lessor retain ownership of the Leased Premises until
remediation is completed.
6. It is in both parties' interest that Lessee begin construction of its multi-family residential structure and
related improvements (Apartments) on the Leased Premises prior to the completion of the environmental
remediation, and the purpose of this Lease is to allow this commencement of construction.
u1y8,2o15 Exhibit -' ����,�5�
7. Lot 2 of CSM 6408 will be divided through a new CSM after the completion of the Apartment construction
as detem�ined by the Lessor and the completion of the environmental remediation as determined by the
appropriate state or federal agency. A draft of the future CSM is attached hereto as Exhibit C. The
Apartment development subject to the Ab eement and to this Lease will be located on a portion of land
within Lot 2 of CSM 6408. Until the future CSM is filed, the actual location (Leased Premises) of this
Apartment development can only be described by a metes and bounds description which follows. It is
expected that the lot in the future CSM corresponding to the Leased Premises will be materially comprised
of the metes and bounds description that follows:
Attached as Exhibit A
8. The development of the Leased Premises described in the Agreement and in this Lease will be financed
through Choice Bank (Lender) and with a tax credit sale through the Wisconsin Housing and Economic
Development Authority (VIHEDA). The Lender andlor WI�DA may request and may be granted an
interest in this Lease up to and including the right to purchase the Leased Premises from the Lessor in place
of Lessee. However, the assignment of any Lessee interest in the Leased Premises must be related to the
Apartments development and pursuant to the terms of the A�reement, must be contingent with such transfer
becomi_ng effective in the event of a default by Lessee, and must be more fully described in separate
documents reasonably agreeable to the Lessor. All assigiltnents, transfers, conveyances of the Leased
Premises will be subject to continuing obligations under the Ab eement.
AGREEMENT
9. All Recitals are incorporated into this Ab eement.
10. In exchange for one dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Lessor agrees to lease to Lessee, and the Lessee aa ees to accept such
lease, the property identiiied and described in this Lease (Leased Premises) on the terms and conditions
expressly set forth and referenced herein. •
11. The term of this Lease shall commence on the date it is executed by all parties, and shall end on the earlier
of: (a) the date that is ninety-nine (99) years after the date of commencement of this Lease; (b) the date in
which Lessee, or a Project Lender as may otherwise be allowed under a lease assignment, closes on its
purchase of and acquires fu11 ownership interest in the Leased Premises; or, (c) the Agreement is tern�inated.
12. This Lease shall tern�inate without notice upon the insolvency of Lessee, upon Lessee's seeking banki�uptcy
protection, or upon any Lessee creditor other than Lender obtaining any interest in Lessee or Lessee's
property. Lessor may elect to terrninate this lease based upon a material default of this Lease which remains
uncured after providing 30 days notice of such default.
13. Pursuant to the terms of the Agreement, Lessee is obligated to take certain remediation actions at the
direction of the Wisconsin Department of Natural Resources and others relating to existing hazardous
substances on the Leased Premises (Remediation). Lessee shall perform the Remediation pursuant to the
terms of the Agreement, the terms of any grants utilized for this purpose, and the terms required by the
Wisconsin Department of Natural Resources (WDNR). Lessee must take all necessary actions which will
result in a Certificate of Completion from the WDNR for the Leased Premises. Remediation of the site
2
July 8, 2015
cannot be completed until construction of the improvements on the Leased Premises is completed, and the
Leased Premises cannot be conveyed by Lessor until tbe Remediation is complete and alI applicable grants
used for Remediation are closed out. Lessee shall close on its purchase of the Leased Premises on the
earliest practical date after the later of the two following events: the issuance of the Certificate of
Completion; or, the closeout of the Remediation b ants. It is expected that the grants will be closed out by
the Agencies within one hundred twenty (120) days after the issuance of the Certificate of Completion. All
parties agree that the timely expiration of this lease, and conveyance of the Leased Premises, is in everyone's
best interest and will work in good faith towards that end. Lessor shall convey the Leased Preniises to
Lessee pursuant to this Lease and the Ab eement.
14. There shall be no Lease payments due from Lessee to Lessor other than the payment identified in parab aph
number 10, above, except as may be required by this Lease or the Ab eement during the term of this Lease.
15. The Lessee shall be allowed to construct and operate an apartment building and related improvements on the
Leased Premises as approved by Lessor pursuant to the terms of the Ab eement and consistent with other
government rules and regulations. No ab eements by Lessee with others which purport to allow the use of
the Leased Premises in a manner contrary to this Lease, or to the Ab eement, shall be allowed, or
enforceable, against Lessor or in rem a�ainst the Leased Premises.
16. During the term of this Lease, the Lessor shall be allowed reasonable access to the Leased Premises for any
purpose related to any municipal or police power function, to meet its obligations under this Lease or the
Ab eement with The Rivers Phase II- Oshkosh, LLC, or to function in its capacity as the owner of the
Leased Premises. Lessor shall make all reasonable efforts to not materially disrupt Lessee's allowed use of
the property.
17. During the term of this Lease, Lessee shall be deemed the owner of all improvements constructed on the
Leased Premises by Lessee, subject to any legal rights of third—parties. Lessor may take actions to gain
ownership of improvements upon the abandonment of the development and related interests by Lessee,
assignees, or others by providing known interested parties notice and a right to cure default or to affirm
interest in the Leased Premises.
18. The Lessee has had sufficient access to the Leased Premises and as a result is or should reasonably be aware
of all aspects related to its condition. The Lessor makes no express or implied promises or warranties related
to the condition of the Leased Premises except those identified in tlie Agreement, as Amended and Restated.
19. Lessee assumes full and complete responsibility for any development activities, fixtures, or improvements to
the Leased Premises prior to the date Lessee purchases the Leased Premises pursuant to this Lease.
20. Lessee acksiowledges that it assumes the responsibility of ensuring that its investments in or on the Leased
Premises are protected through separate ab eements with its Lenders or other measures allowed by law.
21. Lessee shall have all necessary insurance with sufficient limits which will cover its employees, actions and
property on the Leased Premises. Lessee shall hold the Lessor harmless from any accident or incident
involving Lessee, its employees or agents, or any dispute with The Rivers Phase II- Oshkosh, LLC or any 3ra
party resulting from any action of Lessee, its agents or assibns, occurring during the term of this Lease.
22. The Lessee is responsible for paying all utilities, costs, expenses, and obligations of any kind incuned during
July 8, 2015
the term of this Lease. The Lessee is further required, at its expense, to keep and maintain in good order,
condition, and repair the Leased Premises and all improvements constructed thereon.
23. Lessee shall not allow any encumbrance to be filed on or against the Leased Premises, including mortgages,
easements, or similar restrictions.
24. All terms of the Ab eement pertaining to the Leased Premises are incorporated into this Lease, including but
not limited to representations and warranties. Lessor may pursue any breach or default of this Lease or of the
Ab eement as allowed by law.
25. Lessee's restrictions on the use of the Leased Premises during the terms of this Lease are set forth in the
Agreement, and are specifically incorporated into this Lease. All other terms; conditions, benefits, burdens,
a.nd agreements between these parties relating to the Leased Premises shall remain in fi.zll force and effect,
without alteration, with the exception of any terms that prevent the Lessee from constructing and operating
the approved apartment complex prior to taking ownership of the Leased Premises; and,
SIGNATUREPAGE TO FOLLOW
�
Ju1y 8, 2015
IN WITNESS WHEREOF, the parties hereto have executed this Ab eement as of the date first above
written.
LESSEE:
The Rivers Phase II-Oshkosh, LLC
A Wisconsin Limited Liabilit�� Company
By: The Rivers Phase II— Oshkosh — MM, LLC
A Wisconsin Limited Liability Company,
It's Manager
C
Northpointe Development Corporation
A Wisconsin Corporation,
It's Sole Member
By: ��
Callan L. Schultz, President�
This document drafted by:
David J. Prasl:a
Assistant City Attorney
Oshkosh, Wisconsin 54903
5
July 8, 2015
LESSOR:
City of Oshkosh
�-- �
Mark A. Rohloff, Cit� Manage'r
� -� , _ > -�
By: , �. '�.�� �� , ;� �
Pamela R. Ubrig, Ciiy Clerk 1
Oshkosh Redev opment Authority
� -
Steven . Cununings, Chair
. �' ��C/!'�i 1 �
H. Allen Davis, Executive Direct�r
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( P.�GISTER'S OfiFICE
�'SxuEBAGQ COUNTY � Hr
RECQRbED OH �
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&EGISTER aF DEEDS �
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CERTIF(ED SURVEY MAP
ALL OF lOF 1 AND LOi 2 OF CERTIFlED SUFNY NAP NUM9ER 5879.
BEiNG A PAFtT OF 71iE SOUTH 1/2 OF THE NOHi1iFASf T%4 /�t1D P,'.RT OF THE
NOFZTH T/2 OF 7}{E SOUTHEISf 1J� OF SEC710N 23, TOWNSM? 18 NORTH, RMGE t6 Fb57,
FlRST WARD, CfTY OF OSHKOSH, V/INNE94G0 COlIN3Y, W15CANSM.
SURVEYORS CERTIFICATE
� ��og
� AECOM
i 035 Kep!er On•+e
Green eay, Yd 54311
920.468.1978
�ra•x.aecom.com
ct��,im�v er tiwu
I, Craig �D. Honee�, regieEored lond aurveyar, hereby cer#ify: That in full compliance wilh fhe provislons of Chopfer 236,
aect(on 236.34 of fhe Wsoonsln Stalutea, lhe Land Subdivision Ordinonce of Winnebago Counfy, and the City of Oshkosh,
ond under the direction of tha Red�veiopmeni Avthority of the Ciiy of Oshkosh, owner of sald land, I have aurveyed, divided
and mopped the following lond being atl of Lof i ond lot 2 of CerFffied Survey Map Numbcr 5879, Being a port of the
Soulh 1/2 of the Norlhaast 1/4 ond part of lhe North 1�2 0( the Soufheost 1/4 of Section 23, Townehip 18 Norfh,
Ron9a T6 EasE, Frak li'ard, Cily of Oshkosh, Wnnebogo Counfy, Wi�coneln, more fully described as follows;
Commencing ot the Eost }! corner of said Section 23; thenee SOt'17'26'E along the east line of the Northeast 1�4 of
oaid �ection, 403.23 fcet; thence 586'42'34'W, 64.52 feet to e point on the weat right—of—woy of Jackso0 Street and the
eaeteriy line of Lot 1 of Certifi�d Survey fdop Numbtr 5879; fhat also being ihe polnf of Beglnning; fhence olong said
right—o(—way and the eosferly fine of said LoE i 501'24�37�E, 231.05. feet; thence o(ang lhe eoeterly line of soid Lot 1
SBB'JS'231Y, 30,00 feef; thence eontinuing olong the eosferiy Ilna of sald Lo} 1 SOS'06�42'V1, 88,04 feet Eo the souEheast
corner o( aoid Lol 1; thenee olonq Lhe southeriy line of so�d Lo4 S N65'43�26'W, 656.90 feet; thence N62'10'2614, 816.83
(eet olonq lhe eoutherly line of sold Lot 1 and the eouthe�ty Ilne o( Lot 2 of Ce[tified Survey,f,fap Numbe� 5879 to fhe
sovthweste�ly come� o( sold Lot 2; thence alon9 the westerly fine of aaid Lot 2 N3T05�00'E, 213.73 .feet to a poinf on
the southerfy righf—of—way of Marion Road ond the northwesi corner o( sald Lot 2; thenca o{ong said soufheriy
righl—of—woy S65'46'22�E, 886.59 feet; thence continUing along said southeriy right—of—woy S65'54'10'E, 135.02 fe_t;
thence continutng olong aaid southerly right—o(—way N85'26'29'E, 60.73 faeF; lhence eonflnu(ng along sold sovthcr{y
�ght—o(—way IJBB'J3'48'E, 194.29 feef; thence contlnuing along sald soaiherly right—of—way 54.99 feet on a etirve (o fhe
right having o �odius of 35.00 ice4, whose cfiord beon S4b'25�24'E, 48,57 feeF to o point on ihe westerly righl—of—way of
Jackson Siree� and ihe Poinf oi Beginning.
Said parcef contalnn 370,656 9GUOfE feet or 8.5Q3 acres more o� less.
Sald parcel ia subJect (o eosements of record.
'fhat the survay o; so�d land waa done unde� my direct oupervision ond the map hereon Is a krue and occurote
representation of the ezterio� boundaries and the divislon thereof. �
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rHis ls ut oRiv�xu sur�v�y 5-2840
DOCVI�FNT IF THE FA0�5510N+1 % APPLt—i0N .�
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CERTIF4ED SURVEY MAP
AL!„ OF LOT 1 MD LOT 2 OF CEAT1FfED SURVcY hC4P NUMBER b279.
BflNC A PJ�RT OF TNE SOUI}i 1j2 OF T1iE NOfti}IE/ST 1/4 AN� PART OF TNE
kORTH 1/2 OF T}{E SpUTNEIST 7/4 OF SEC710N Z3, 70Wt15HIP t8 NOFZ7}I, RIJIGE 16 F1ST,
f1RST WARD, C[iY OF OSHKOSH, 54fNNE6AG6 CAUISSY, Wf5COh51H.
MUNICIPAL OWNER�S CERTIFfCATE
� � �!o
AECOM
1035 Kepler Drn�e
Grean 8ay, W! bd315
920.<66.1978�
W�yi'.1BCQT.qf15
C�y�-�.im3J�0 6�' IIL7v
The Redevelopmanl /w(hority of iha Cify of Oshkosh, o separate body pu611c oroanized and exl�ting under aod by viriue of
fhe Lovrs ot the Stofe of Wiecons(n, a� ownet, doee hereby co�{ify thof said Authority causad the lond denctibed lo be
eurveyad, d'nided, and mapped as represented on this mop, In accordance with the provision� af Chopter 236 0( lhe
1Ysconsin Stetutes ond thn Land Su6divisfon Ordinonce of the City oS Oshkosh.
(n Wilness whe�eoF, the aoid Redevelopmenf Aulhotity, has caused lhese presenta to be signed by
Jaci�son R. Kinney 4t� Rxecutive Ilizector - , ond
counleralgned by �S ��
(bh1cLl�t
�� doy of �"ptgnber
;t� �u�n
Wicrrmcin , ih(s
_, 20 � .
Redevelopment Authonfy of the Cify of Oshkosh:
Joc s n Kinnoy
Exe�Dlrecto�
� ��
Thomas Beller
Chairman
ol
STATE OF W15CONSIN)
.:SS
WIHl�fE9AC0 COU1dI1')
Personally came be(ora me thi� �h day af �p� 2009 the o(orementioned representaLives of
fhe Redev�lopmenf Authority of the Clty of Oshkosh, known to me to be the pe�sone who ekecuted the forgofng instrumenE
on ack owledged the sam . "
�-��!/4�! �' -- /� }�
Notory''Publfe, '� My, eommission ezplrea V//�` �"
Ylrinebogo Counfy, Stale o( SYsconsin �
. i .
1� � .• �.... 7�.
:li ' i •• :�
Ttiln CertiAed Survey Mop oF port of the South 1/2 of the Northcest 1/4 ond part of lhe Nor:h 1/2 0( lhe Southeast 1/4
in Sectiort 2S, �7ownehip 18 Norih, Ronge 1b 6ast, FrsE Vlard, Cify ot Oshkosh, Wnnebogo County, PTsconsln, Is hereby
opproved.
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Clt o ng Cornmisalon Dote
Repree entaf ive
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L ;CRG�a'o. ttutsEri s-2e�o $.2840 -
-�RECISTEREO VtlO SUFNEYOR * App�ON
•SEPTDlBER.26, 20D9 ' W� ;�Q `
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LEGAL DESCRIPTION
T'he Rivers 1.5 Lot
Oshkosh, WI
A parcel of land, being a part of Lot 2 of Winnebago County Certified Survey Map No. 6408,
located in the NE 1/4 of the SE 1/4 of Section 23, Township 18 North, Range 16 East, First
Ward, Cify of Oshkosh, Winnebago County, Wisconsin, being more particularly described as:
Begii�i.ng at the Northwest corner of said Lot 2 of Certified Survey Map No. 6408, said point
being on the southwesterly right-of-way line of Marion Road;
Thence S65°-46'-22"E, along said southwesterly right-of-way line, 238.54 feet;
Thence S24°-13'-36"W, 149.48 feet to the beginning of a curve to the right, having its radius
point bearing northwesterly, 290.00 feet;
Thence southwesterly 193.16 feet along the arc of said curve, the long chord of which bears
S85°-11'-09"W, 189.61 feet to a point on the northeasterly line of Outlot 1 of Certif ed Survey
Map No. 5879 and the end of said cuxve;
Thence N62°-10'-26"W, along said northeasterly line of Outlot l, 72.91 feet to the southwest
corner of said Lot 2 of Certified Survey Map No. 6408;
Thence N24°-13'-38"E, along the westerly line of said Lot 2, 236.95 feet to the Point of
Beginning and the end of this description;
Containing 51,843 square feet, or 1.190 acres of land.
LEGAL I�ESGRIP�'ION
Outlot Adj acent to The Rivers 1.5 Lot
Oshkosh, WI
A parcel of land, being a part of Lot 2 of Winnebago County Certified Survey Map No. 6408,
located in the NE 1/4 of the SE 1/4 of Section 23, Township 18 North, Range 16 East, First
Ward, City of Oshkosh, Winnebago County, Wisconsin, being more particularly described as:
Commencing at the Northwest corner of said Lot 2 of Certified Survey Map No. 6408, said point
being on the southwesterly right-of-way line of Marion Road;
Thence S65°-46'-22"E, along said southwesterly right-of-way line, 238.54 feet to the Point of
Beginning of this description;
Thence continuing S65°-46'-22"E, along said southwesterly right-of-way line, 20.00 feet;
Thence S24°-13'-36"W, 253.21 feet to the northeasterly line of Outlot 1 of Certified Survey Map
No. 5879;
Thence N62°-10'-26"W, along said northeasterly line of Outlot l, 186.14 feet to the beginuing of
a curve to the left, having its radius point bearing northerly 290.00 feet;
Thence northeasterly 193.16 feet along the arc of said curve, the long chord of which bears
N85°-11'-09"E, 189.61 feet; .
Thence N24°-13'-36"E, 149.48 feet to the Point of Begi�uiiig and the end of this description;
Containing 11,519 square feet, or 0.264 acre of land.
Descriptions by: Ken Wolf, PLS-1421, AECOM
June 25, 2015
Projecf No. 60432283
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