HomeMy WebLinkAbout29. 17-91
FEBRUARY 28, 2017 17-91 RESOLUTION
(CARRIED____7-0__ LOST_______LAID OVER_______WITHDRAWN_______)
PURPOSE: APPROVE DEVELOPER AGREEMENT WITH FOX VALLEY PRO
BASKETBALL, INC.; PROPOSED MULTI-PURPOSE ARENA AT
1212 SOUTH MAIN STREET
INITIATED BY: COMMUNITY DEVELOPMENT
WHEREAS, Fox Valley Pro Basketball, Inc. submitted a proposal for construction
of a multi-purpose arena at 1212 South Main; and
WHEREAS, the City of Oshkosh (City) and Redevelopment Authority (RDA) will
remain the owner of the property during environmental remediation activities and
construction of the planned development requiring the City and RDA to enter into lease
agreements and assignments for the purpose of facilitating construction and financing of
the project during the period prior to completion of the environmental remediation and
transfer of the property to Fox Valley Pro Basketball, Inc.; and
WHEREAS, the leases and assignments are consistent with the terms of the
Developer Agreement; and
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper City officials are hereby authorized and directed to enter into a
Developer Agreement with Fox Valley Pro Basketball, Inc. for construction of a planned
multi-purpose arena at 1212 South Main Street, in substantially the same terms as
attached hereto, any changes in the execution copy being deemed approved by their
respective signatures, and to carry out all actions necessary to implement the City’s
obligations under the Developer Agreement.
Memorandum
DATE: February 23, 2017
TO: Honorable Mayor and Members of the Common Council
FROM: Allen Davis, Community Development Director
SUBJECT: Approve Development Agreement with Fox Valley Pro Basketball, Inc.; Proposed Multi -
Purpose Arena at 1212 South Main Street
BACKGROUND
The recent announcement regarding the proposed arena and Milwaukee Bucks D -League team has
accelerated the redevelopment of the Buckstaff property. As part of the redevelopment, the developer
and the City are to enter into a Development Agreement which will identify the various rights and
responsibilities of both parties.
ANALYSIS
The TIF #31 Plan provides the details on the TIF financing and payment for all project elements. The
Development Agreement is consistent with the TIF plan and includes the following provisions:
1. TIF Funds will be used to reimburse the Developer for costs that the Developer is paying upfront
to finance city improvements needed to South Park Avenue, South Main Street and 11th Avenue
to support the Project and to reimburse the Developer for site improvements related to
environmental remediation and geo-pier and grid installation to support structural foundations.
2. The developer will deposit adequate funds for the, public improvements to be installed this
summer.
3. Environmental remediation will be completed with site redevelopment.
4. Repayment of project costs will be based on actual costs of construction.
5. The City has applied to WEDC to potentially reduce the public costs by up to $250,000.
6. Pay -go TIF — no general city funds will be spent for the public improvements or site preparation
needed for the redevelopment of the site. There are no general obligation or other public
obligations for repayment. The Developer will be reimbursed for these costs based on the TIF's
performance.
7. The Pay -go tax increment is calculated as 100% of the tax increment remaining, after the SBA
payment and city administrative costs are deducted.
8. The developer is guaranteeing an $18,000,000 value for the first 7 years. The value could decline
after that date.
9. The developer requested a possible interest rate adjustment in year 7 based on actual city
borrowing costs plus two percent.
The rest of the Development Agreement terms are consistent with other previous Development
Agreements.
The RDA approved the draft Development Agreement and Land Disposition on February 23, 2017. The
Land Disposition would occur after the arena and other site improvements have been constructed, and
the Wisconsin Department of Natural Resources has issued a Certificate of Completion.
FISCAL IMPACT
The Developer is funding the public improvements, the site improvements, and the building
construction. The City will be repaying the SBA obligation and the Developer's up -front costs for the
public improvements and site preparation with future tax increments.
RECOMMENDATION
The City Council approves the Development Agreement.
Respectfully Su 'tted,
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Allen Davis
Community Development Director
Approved,
Mark Rohloff
City Manager
City Hall • 215 Church Avenue • P.O. Box 1130 • Oshkosh, WI 54903-1130
http://www.ci.oshkosh.wi.us
TAX INCREMENTAL DISTRICT NO. 31
DEVELOPMENT AGREEMENT
(FOX VALLEY PRO BASKETBALL, INC. PROJECT)
This Development Agreement (the "Agreement") is made this day of February,
2017 (the "Effective Date"), by and among the CITY OF OSHKOSH, WISCONSIN, a
Wisconsin municipal corporation, the REDEVELOPMENT AUTHORITY OF THE CITY OF
OSHKOSH, WISCONSIN (the "RDA," and, collectively with the City of Oshkosh, Wisconsin,
the "City"), and FOX VALLEY PRO BASKETBALL, INC., a Wisconsin corporation (the
"Developer").
RECITALS
WHEREAS, the City has established Tax Incremental District No. 31 (the "District") as a
blighted area district in which at least fifty percent (50%) of the property within the District is a
blighted area, as that term is defined by Wis. Stat. Sec. 66.1105(2)(ae), and in which certain costs
incurred for redevelopment of the District may be reimbursed from property tax increment as
provided by State law; and
WHEREAS, the Developer is leasing from the City that certain property located within
the District and more particularly described on Exhibit A attached hereto (the "Property")
pending the completion of certain environmental remediation work as set forth herein.
Following the completion of such work, Developer will acquire fee title to the Property; and
WHEREAS, the Developer has approached the City indicating a desire to invest not less
than $20,320,000 to develop and construct on the Property a 3,500 seat sports arena consisting of
approximately 80,000 square feet, a parking lot and other infrastructure and site improvements,
all in accordance with applicable City ordinances and City -approved plans (the "Project"); and
WHEREAS, to promote such development, the City created the District to assist in the
financing of the costs of certain improvements, development incentives, and other costs
associated with the ownership and development of properties located in the District; and
WHEREAS, the Developer will not undertake the development of the Project but for its
reliance upon the Developer receiving tax increment financing to assist in the funding of a
portion of Developer's acquisition, development and operation costs for the Property, all as
described below; and
WHEREAS, the City is authorized to enter into contracts necessary and convenient to
implement the purpose of a Tax Incremental District, including the ability to provide
development incentives and cash grants to owners, lessees, or developers of land located within
the District; and
WHEREAS, the uses of the Property contemplated by this Agreement are necessary and
desirable to serve the interests of the City and its residents by expanding the tax base of the City,
providing additional development and employment opportunities, and providing a financing
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mechanism to expand and acquire necessary infrastructure, all consistent with the purpose of a
Tax Incremental District under Section 66.1105, Wisconsin Statutes; and
WHEREAS, based upon the City's desire to redevelop the District and to obtain the
economic benefits to be generated from the Project, the City is willing to enter into this
Agreement.
NOW THEREFORE, in consideration of the recitals, the terms and conditions contained
in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
I. DEFINITIONS. For purposes of this Agreement, the following terms shall have
the following meanings:
A. Acquisition Costs. "Acquisition Costs" means real property assembly
costs incurred by the City in the amount of $140,000, together with interest at the rate of four
percent (4%) per annum, to be paid to the United States Small Business Administration from Tax
Increments in fourteen (14) equal installments of principal and interest of $13,254.00 each,
beginning on November 1, 2019 and continuing each November 1 thereafter until paid in full.
B. Administrative Costs. "Administrative Costs" means all of the following
costs and expenses of the City relating to the District and attributable to the Property: (i)
professional services including, but not limited to, planning, engineering, design, accounting,
financial planning, and attorneys' fees and costs; and (ii) reasonable charges for time spent by
City employees in connection with the implementation of the Project Plan and administration of
the District. Notwithstanding anything to the contrary set forth herein, the City and the
Developer agree that the aggregate Administrative Costs during the first year of this Agreement
shall not exceed $[35,000], and the aggregate Administrative Costs during each subsequent year
of this Agreement shall not exceed $10,000.
+C", Agreement. "Agreement" means this document and all of its component
parts and exhibits.
D. Affiliate. "Affiliate" means any entity majority owned and controlled by,
in control of, or under common control with Developer or any entity of which Developer is a
subsidiary or which is a shareholder of Developer. An Affiliate includes, but is not limited to, an
entity with which Developer merges or into which Developer consolidates, or which acquires all
or substantially all of the common stock or assets of the Developer.
F. Available Tax Increment. "Available Tax Increment" means an amount
equal to one hundred percent (100%) of the annual gross Tax Increment revenues actually
received and retained by the City which are generated by the Property and improvements and
personal property thereon in the immediately preceding calendar year, less Administrative Costs
and Acquisition Costs.
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F. City Grant. The City Grant is a financial grant to be made available to
Developer pursuant to Section N.C., below, payable over the life of the District from Available
Tax Increment in accordance with the terms of this Agreement.
G. City MRO. "City MRO" means the Municipal Revenue Obligation issued
by the City to the Developer as evidence of the City's limited obligation to pay the City Grant as
described in Section N.C. below, and in substantially the form of Exhibit D attached hereto and
incorporated herein. The City MRO shall be issued pursuant to Section 66.0621 of the
Wisconsin Statutes, shall not constitute an indebtedness of the City, and shall be payable, subject
to contingencies, solely from the limited sources and to the extent provided in this Agreement
and the City MRO.
R District. The "District" means all of that property, including the Property,
included in Tax Incremental Finance District No. 31 as described in the Project Plan.
T. Environmental Reports. "Environmental Reports" means (i) Stormwater
Management and Erosion/Sediment Control Plan for Buckstaff Foundation Removal prepared by
John Ferris, Oshkosh Public Works Department dated November 30, 2016; (ii) Wetland
Determination and Delineation Report — former Buckstaff Furniture Company Property,
prepared by Brian Bates, , dated December 12, 2016; (iii) Phase I
Environmental Site Assessment, City of Oshkosh, 1212 South Main Street, prepared by
AECOM, dated January 12, 2017, and (iv) any Phase II Environmental Site Assessment(s)
required based upon the findings in any of (i) — (iii), above.
T. Existing Environmental Conditions. "Existing Environmental Conditions"
means any Hazardous Substances, known or unknown, present in concentrations greater than
applicable standards on, in, at, or under the Property or migrating in concentrations greater than
applicable standards to or from the Property at any time on or before the Effective Date.
K. Ground Lease. "Ground Lease" means that certain Ground Lease dated as
of , 2017 by and among the City, the RDA and Developer pursuant to which
Developer will lease the Property from the City and the RDA until the conditions set forth in
Article V, below, are met.
X11. Hazardous Substances. "Hazardous Substances" means toxic, hazardous,
and/or regulated substances, pollutants, or contaminants, whether present in the soil or
groundwater at, under, or migrating from or to the Property.
A Payment Dates. "Payment Dates" means November 1 of each year,
commencing on the third November 1 after the Effective Date of this Agreement, up to and
including November 1, 2045.
N. Payment Term. "Payment Term" means the term commencing on the first
day of the third November after the Effective Date of this Agreement and continuing on the same
day of each year thereafter until the first to occur of the following: (i) payment to Developer of
the entire amount of the City Grant, or (ii) November 1, 2045. For example, for illustrative
purposes only, if the Effective Date is March 1, 2017, the Payment Term would run from
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November 1, 2019, through the first to occur of the following: (1) payment to Developer of the
entire amount of the City Grant; or (ii) November 1, 2045.
O. Prot. "Project" means the Developer's acquisition, development and
use of the Property as a 3,500 seat sports arena consisting of an approximately 80,000 square
foot building, a parking lot, and related infrastructure and site improvements, all of which shall
comply with applicable City ordinances and City -approved plans for the Property.
P. Project Plan. "Project Plan" means the "Project Plan for the Creation of
Tax Incremental Finance District No. 31 in the City of Oshkosh" prepared by Ehlers, Inc. dated
February 22, 2017, which is described on Exhibit B attached hereto and incorporated herein.
Q. Project Costs. "Project Costs" means the costs relating to the Property
described and estimated as set forth on Exhibit C attached hereto and incorporated herein. The
Project Costs shall include (i) costs of improvements to East 11th Avenue, South Park Avenue,
and South Main Street to be made by the City, (ii) remediation expenses relating to the Property,
(iii) costs for geo pier and grid installation on the Property, (iv) costs for storm water
management facilities located on or serving the Property, (v) interest expenses payable to
Developer pursuant to the City MRO, (vi) Acquisitions Costs, and (vii) Administrative Costs.
The City and Developer agree that the Project Costs listed in Exhibit C are estimates only, and
that upon completion of the work described on Exhibit C, the parties shall prepare and attach to
this Agreement a revised Exhibit C setting forth actual Project Costs. Notwithstanding the
foregoing, the cumulative total of Project Costs making up the "Developer Incentive Principal"
as set forth on Exhibit C shall in no event exceed $4,349,450.
R, Property. "Property" means the real property described in Exhibit A
attached hereto and incorporated herein, together with all improvements and personal property
thereon.
S. Property Tax Increment Base. "Property Tax Increment Base" means the
aggregate value, as equalized by the Wisconsin Department of Revenue, of the Property as of
January 1, 2017.
T. Tax Increment. "Tax Increment" has the same meaning as defined in
Section 66.1105(2)(i) of the Wisconsin Statutes.
U. Tax Increment Law. "Tax Increment Law" means Section 66.1105 of the
Wisconsin Statutes.
II. PROPERTY ACQUISITION AND GROUND LEASE. The effectiveness of
this Agreement is contingent upon the RDA, on or before the Effective Date, acquiring the
Property and executing the Ground Lease with Developer. In the event that the RDA is unable to
timely satisfy this contingency on or before July 1, 2018, Developer shall provide written notice
thereof to the City, in which case, this Agreement shall be null and void and the parties shall
have no further rights or obligations hereunder. If Developer fails to provide a timely
termination notice to the City, then this contingency shall be deemed to be waived.
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The Ground Lease will contain terms reasonably satisfactory to the City and
Developer but in all event shall contain the following terms and conditions:
1. A term of fifty (50) years, but terminable upon the conveyance of
the Property by the RDA to the Developer pursuant to Article V, below.
2. Base rent of $1 per year.
3. Developer will be responsible for all general property taxes on the
Property (or, if such land is exempt from general property taxes, additional rent in an amount
equal to what such taxes would be if the Property were not exempt).
4. RDA will retain a right of access to the Property to the extent
necessary to perform the City's obligations with respect to the remediation of the Property
pursuant to Article V, below.
III. DEVELOPER'S OBLIGATIONS.
A. Development of the Prot. Developer intends to invest not less than
$20,320,000 to develop, construct, and use the Project.
B. Project Construction. Developer shall commence construction of the
Project within 30 days following the Effective Date of this Agreement. Once commenced,
Developer shall diligently pursue completion of construction of the Project in accordance with
applicable City ordinances and City -approved plans for the Property so that in any case
construction shall be completed by December 31, 2017.
C. Costs and Expenses. The Developer shall be responsible for all costs
related to the Project (including costs of work performed by the City in rights of way adjoining
the Property) and any other work to be performed by the Developer under this Agreement,
including all engineering, inspections, materials and labor. Furthermore, Developer shall be
responsible for payment of all City fees including impact fees, building permit fees, zoning and
sign permit fees, electrical and plumbing fees.
D. Deposit to Fund Public Improvements. On or before May 1, 2017,
Developer shall deposit the sum of $2,520,000 with the City in order to fund the performance of
the improvements being made by the City to East 11th Avenue, South Park Avenue, and South
Street described on Exhibit C. Developer acknowledges and agrees that Developer remains
responsible for all costs related to the Project pursuant to Section III.C., above, and that the
amount of the deposit made pursuant to this Section IILD. is not intended to limit Developer's
obligations hereunder. The amount of the deposit required pursuant to this Section IILD. will be
reduced by the amount of any WEDC grant actually received by the City prior to May 1, 2017.
IV. CITY'S OBLIGATIONS.
A. City Construction Work. The City will remove existing foundations
located on the Property, and will backfill any resulting holes to grade. The City will complete
this work on or before July 1, 2017. The City will also, at Developer's cost, perform those
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portions of the Project involving the public improvements to City rights of way described in
Section IILD., above.
B. WEDC Grant. The City has submitted a Community Development
Investment Grant application to the Wisconsin Economic Development Corporation ("WEDC")
to offset up to $250,000 of the Project Costs set forth as Exhibit C. Should the City receive a
grant from WEDC, the funds received will be contributed to the Project. The amount of any
such grant shall reduce the amount of the City Grant.
C. City Grant. In each year beginning in 2019 and ending in 2045 (or, if
earlier, when the total amount of the "Developer Incentive Principal" as set forth on Exhibit C
plus interest has been reimbursed to Developer under this Agreement), in consideration of the
Developer undertaking its obligations under this Agreement, the amount of the Available Tax
Increment shall, subject to annual appropriations by the City Common Council, be applied to
make payments under this Agreement to pay the City Grant to Developer. The City Grant
constitutes eligible Projects Costs within the meaning of Section 66.1105(2) of the Wisconsin
Statutes. The first payment shall not be made until the first day of the second November after
the date of this Agreement provided that there is Available Tax Increment. Such payments shall
be made in accordance with the terms of this Agreement, as further described in this
Section N.C. and the City MRO. The amount of the City Grant shall be equal to the final
amount of Project Costs, less Acquisition Costs, Administrative Costs, and any WEDC grant
funds received pursuant to Section N.B., above. The City Grant shall be paid by the City only
out of Available Tax Increment, subject to the provisions of this Agreement and the City MRO.
The City covenants and agrees as follows: (a) the City Manager or his designated representative
shall include the payment of the entire Available Tax Increment for each year included during
the Payment Term in the applicable budget request recommendation for the following year's
budget, (b) if the City's annual budget does not in any year provide for appropriation of
Available Tax Increment sufficient to make the payment due to Developer in that year, the City
will use its diligent, good faith efforts to notify the Developer of that fact at least thirty (30) days
prior to the date the budget is presented to the City Common Council for final approval, and
(c) funds in the special fund of the Property attributable to the Available Tax Increment
generated from the Property (and all improvements and personal property thereon) shall not be
used to pay any other project costs of the District until the City has applied to the payment due
hereunder, in any year, the Available Tax Increments generated by the Property (and all
improvements and personal property thereon) that this Agreement provides will be applied to
payment due hereunder.
Developer acknowledges that, subject to the provisions of this Agreement:
(i) all payments of Available Tax Increment are subject to the future annual appropriation of said
amounts by the City Common Council to payment due hereunder; (ii) only the Available Tax
Increments generated by the Property (and all improvements and personal property thereon) shall
be used to make payments to the Developer; and (iii) if, on November 1, 2045, the amount of the
Available Tax Increments to be paid under this Agreement proved insufficient to pay the entire
City Grant, the City shall have no obligation or liability therefor.
The payment of the City Grant shall be subject to the following conditions
and limitations:
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1. On each Payment Date during the Payment Term and subject to the
provisions of this Agreement, the City shall pay a portion of the City Grant equal to the amount
of Available Tax Increment appropriated by the City Common Council for the payment due that
Payment Term year.
2. The City shall take no action to terminate or dissolve the District
early prior to November 1, 2045, unless the City first pays the outstanding balance due under the
City Grant, subject to the provisions of this Agreement, including, but not limited to, the annual
appropriation of the City Common Council of such outstanding balance due.
Attached hereto as Exhibit E is the City's projection of revenues and
expenditures for the District over its term, with the City Grant labeled as "Developer Incentive
Payments" thereon. Exhibit E is provided for illustrative purposes only, and Developer
acknowledges that the amounts set forth thereon are estimates only.
D. City Grant not to be Considered Indebtedness. In no circumstances shall
amount of the City Grant due Developer hereunder be considered an indebtedness of the City,
and the obligation of the City hereunder is limited to the Available Tax Increment which is
appropriated by the City Common Council for payment of such amounts and only to the extent
as provided in this Agreement. Amounts due hereunder shall not count against the City's
constitutional debt limitation, and no taxes will be levied for its payment or pledged to its
payment other than Tax Increment which has been appropriated for that purpose.
V. ENVIRONMENTAL MATTERS.
A. Lease Letter. The City will use its best efforts to obtain a lease liability
clarification letter from the Remediation and Redevelopment Program of the Wisconsin
Department of Natural Resources ("WDNR") indicating that Developer, as Lessee, is presumed
to not be responsible for the Existing Environmental Conditions, as provided for in Wis. Stat.
Sec. 292.55.
B. City will obtain a Voluntary Party Liability Exemption ("VPLE")
Certificate of Completion from the WDNR for the Property. The parties contemplate that the
VPLE Certificate of Completion will be issued by WDNR following completion of certain
additional investigation and limited environmental response actions by the City and/or the
Developer, as a part of Developer's construction of the Project. The Parties understand that the
final case closure and VPLE Certificate of Completion may include the use of institutional
controls, provided that such institutional controls do not materially limit the use of the Project or
the Property by Developer. Such institutional controls may include, for example but without
limitation, groundwater use restrictions and cap construction and maintenance requirements.
Furthermore, the parties understand that any routine cap maintenance, repair or replacement
obligations arising from such conditions shall be the responsibility of the Developer and shall be
performed at Developer's sole cost and expense, provided, however, that active mitigation
measures such as continuous groundwater extraction or monitoring, or hazardous gas/vapor
mitigation, beyond a passive or ordinary venting system shall be the continuing responsibility of
City until such time as such measures are no longer required by WDNR. Notwithstanding the
foregoing, Developer and City will cooperate to develop plans acceptable to the WDNR that
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would avoid continuous groundwater extraction or monitoring, or hazardous gas/vapor
mitigation to the extent possible and approved by the WDNR. To the extent that the WDNR
requires hazardous gas/vapor mitigation, the Developer and City agree to cooperate to develop a
passive hazardous gas/vapor mitigation system acceptable to the WDNR.
C. From and after the effective date of the Ground Lease, the Developer will
pay the entire cost of the work necessary to obtain any required exemption to construct on a
historic fill site and to obtain the VPLE Certificate of Completion, including the cost to
investigate and restore the environment at the Property and the cost to design and install any
passive gas/vapor venting system to the extent such system is required by WDNR.
D. Promptly following WDNR's issuance of the VPLE Certificate of
Completion, the parties will terminate the Ground Lease, and the RDA will convey the Property
to Developer for a purchase price of $1.00 by general warranty deed, subject to no liens or
encumbrances other than utility easements of record, zoning restrictions, deed restrictions
imposed by the WDNR in connection with the issuance of the VPLE Certificate of Completion,
and other matters reasonably acceptable to Developer and its lender(s), provided none of such
liens or encumbrances will prohibit or interfere in any material respect with the development or
operation of the Project. The RDA shall pay all costs of an owners' title insurance policy in the
amount of the value of the Property (land value only), insuring that fee simple title to the
property is vested in Developer, subject to no liens or encumbrances other than utility easements
of record, zoning restrictions, deed restrictions imposed by the WDNR in connection with the
VPLE Certificate of Completion, and other matters reasonably acceptable to Developer and its
lender(s), provided none of such liens or encumbrances will prohibit or interfere in any material
respect with the development or operation of the Project. Concurrently therewith, the City and
Developer will enter into a limited easement agreement granting to City a limited right of access
to the Property to the extent necessary to allow the City to fulfil its continuing obligations (if
any) under the VLPE Certificate of Completion, which easement agreement shall be reasonably
satisfactory in form and substance to the City and the Developer.
E. Except as provided elsewhere in this Agreement, City shall be responsible
for, and shall indemnify, defend, and hold harmless Developer, its successors and assigns, and its
officers, directors, managers, members, employees, contractors, and agents (the "Developer
Parties") from and against, any and all actions, claims, causes of action, costs, damages, demands
by governmental entities, expenses, liabilities, losses, obligations, penalties, or suits including,
without limitation, all reasonable attorney, consultant, and engineer costs or fees related thereto,
(collectively, "Environmental Claims") in any way arising out of, connected with, or resulting
from (i) a release caused by or exacerbated by City or its contractors or agents, or (ii) any
Existing Environmental Conditions, including the continued migration of any such Existing
Environmental Conditions in concentrations greater than applicable standards without regard to
whether such migration occurs on or before the Effective Date; provided, however, that City's
obligations under this Section V.E. shall not include any claim (i) by Developer or a successive
owner of the Property for diminution of value or stigma, (ii) that the Developer violated or failed
to abide by any obligation set forth in this Agreement or in the VPLE Certificate of Completion
or (iii) arising out of the negligence or willful misconduct of Developer or agent thereof in
dealing with any Hazardous Substances.
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F. Notwithstanding anything to the contrary in Section V.E., above, the
obligation of the City to indemnify any Developer Party shall not include any Environmental
Claim related to or arising from the presence at the Property of a Hazardous Substance that is:
1. confined to locations and at concentrations that are permissible to
remain in place without further action under applicable environmental laws or approved by
WDNR to remain in place in the VPLE Certificate of Completion;
2. present as the result of any failure by Developer to abide by the
terms of the VPLE Certificate of Completion that are obligations of the Developer under the
terms of this Agreement;
3. present at the Property as a result of the introduction by Developer
of any Hazardous Substance to the environment at the Property, whether directly or by migration
from any off site location; or
4. subject to or the subject of any exemption from or release of
liability provided by the VPLE Certificate of Completion that is applicable to the Property.
G. Developer shall be responsible for, and shall indemnify, defend, and hold
harmless the City, and its successors and assigns, and its officers, directors, employees,
contractors, and agents (the "City Parties") from and against, any and all claims in any way
arising out of, connected with, or resulting from any Hazardous Substances, known or unknown,
present on, in, at, or under the Property or migrating to or from the Property at any time after
Effective Date, to the extent any such release of a Hazardous Substance is caused or materially
exacerbated by the Developer; provided, however, that Developer's obligations under this
Section 5.G shall not include any claim (i) for diminution of value or stigma, or (ii) arising out of
the negligence or willful misconduct of the City or agent thereof in dealing with any such
Hazardous Substances.
VI. APPROVALS AND DEVELOPMENT STANDARDS.
A. Approval of Public Bodies. The Developer shall obtain from the City and
all other appropriate governmental bodies (and all other councils, boards, and parties having a
right to control, permit, approve, or consent to the development and use of the Property) all
approvals and consents necessary for the City to approve the development of the Property, and
any other approvals necessary to utilize the Property for the Project.
B. Acceptance of Agreement. The acceptance of this Agreement and
granting of any and all approvals, licenses, and permits by the City shall not obligate the City to
grant any additional approvals, including, but not limited to, variances, exceptions, or conditional
use permits, or approve any building or use the City determines not to be in compliance with the
applicable municipal codes and ordinances of the City. The City agrees to work in good faith,
promptly, and diligently in connection with the issuance or grant of all such approvals, consents,
permits, certificates, and any other documents as may be necessary or desirable in connection
with the development, utilization, and operation of the Property and to act reasonably and
expeditiously and in cooperation with the Developer in connection therewith; it being understood
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and agreed that this provision is not intended to limit the rights of the City as more particularly
set forth above or in Article X, below.
C. Development Requirements. The Developer shall use the Property for the
Project and in accordance with the provisions of this Agreement, and all other applicable federal,
state, county, and City laws and regulations.
D. Tax Exemption Forebearance. Developer acknowledges that the City is
relying upon the Developer's real property taxes to generate the Available Tax Increment to fund
the City Grant. As a result, throughout the term of the District, the Developer agrees neither the
Developer nor any existing or future Affiliate or related entity of the Developer (collectively,
"Developer Affiliates") will pursue, assist, support, or be involved in any federal, state, or local,
judicial, legislative, or regulatory action or process that seeks, directly or indirectly, to prohibit,
set aside, or limit the taxability of all or any portion of the Property on any basis whatsoever, and
the Developer for itself and on behalf of the Developer Affiliates, and each of their respective
successors in interest, waives any and all rights thereto. In addition, during the period of time
that commences upon the date of this Agreement and terminates at the end of the District, neither
the Property, the Project nor any part thereof or interest therein shall be sold, transferred, leased,
assigned, gifted, owned, used, or conveyed in any way to any person, partnership, organization,
or entity that is all or partially exempt from federal or State of Wisconsin income taxes or real or
personal property taxes, without the express prior written consent of the City, which such
consent may be withheld in the City's sole and absolute discretion (collectively, the "Restrictive
Covenant"). This Restrictive Covenant shall permit the City to have enforcement rights.
Notwithstanding anything to the contrary contained herein, the Restrictive Covenant shall
automatically terminate upon the conclusion of the District.
VII. WARRANTIES AND REPRESENTATIONS.
A. The Developer hereby warrants, represents, and covenants to the City:
1. The Developer is a duly organized and existing corporation in the
State of Wisconsin and authorized to transact business in the State of Wisconsin.
2. The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly authorized and
approved by the Developer, and no other or further acts or proceedings of the Developer or its
shareholders, directors, or officers are necessary to authorize and approve the execution,
delivery, and performance of this Agreement, and the matters contemplated hereby. This
Agreement, the exhibits, documents, and instruments associated herewith and made a part
hereof, have, if applicable, been duly executed and delivered by the Developer and constitute the
legal, valid, and binding agreement and obligation of the Developer, enforceable against the
Developer in accordance with their respective terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally, and by general equitable principles.
10
16715866.7
3. There are no lawsuits filed or, to the knowledge of the Developer,
pending or threatened against the Developer that may in any material way jeopardize the ability
of the Developer to perform its obligations hereunder.
4. The Developer has sufficient funds through equity and debt
financing sources to continuously operate, maintain, and fulfill the Project.
5. The Developer shall provide, prior to execution of this Agreement,
a (i) a certificate of good standing/current status issued by the appropriate government agency of
the state of the Developer's organization, and (ii) certificate of incumbency and resolutions of the
corporation which provide for who is authorized to sign on behalf of the Developer and that the
Developer is duly authorized to enter into this Agreement and undertake all of the obligations
under this Agreement together with all other agreements, documents, and contracts required to
be executed in connection with the transactions arising out of this Agreement.
B. The City hereby warrants and represents to the Developer that:
1. Subject to the approval of City Common Council, the execution,
delivery, and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized and approved by the City, and no other or
further acts or proceedings of the City or its officials are necessary to authorize and approve the
execution, delivery, and, subject to annual appropriation by the City Common Council,
performance of this Agreement, and the matters contemplated hereby. This Agreement, the
exhibits, documents, and instruments associated herewith and made a part hereof, have, if
applicable, been duly executed and delivered by the City and constitute the legal, valid, and
binding agreement and obligation of the City, enforceable against the City in accordance with
their respective terms, except as the enforceability thereof may be limited by applicable law and
as is otherwise subject to annual appropriation by the City Common Council.
2. No special assessments or other charges of any kind shall be
assessed or levied against or accrue or come due from the Developer or the Property with respect
to the Property Project Costs.
VIII. CONDITIONS TO/LIMITATIONS ON THE OBLIGATIONS.
Notwithstanding anything to the contrary set forth in this Agreement, the
following are conditions to and limitations on each and all of the obligations of the City and the
Developer under this Agreement, and the City and the Developer shall not be obligated to
expend any amounts under this Agreement and may suspend or terminate this Agreement or the
performance of any and all of its obligations under this Agreement, without recourse against the
City or the Developer, if:
A. The Wisconsin Department of Revenue fails to certify all or any portion of
the creation of the District or the Project Plan ("Non -Certification"); provided, however, the City
shall first make all reasonable efforts in good faith to cure such Non -Certification; or
11
16715866.7
B. The District is involuntarily terminated or dissolved ("Involuntary
Termination"); provided, however, the City shall first make all reasonable efforts in good faith to
cure such Involuntary Termination.
IX. MINIMUM ASSESSMENT GUARANTY. The Developer hereby agrees that
commencing in 2018 (whether or not the Property has been conveyed to Developer pursuant to
Article V, above) and for a period of seven (7) years thereafter, the assessed value of the Project
shall be greater than or equal to $18,000,000.00. If, for 2018 or any subsequent year in which
this minimum assessment guaranty is in effect, the assessed value of the Property is less than
$18,000,000, Developer will make a payment to the City (a "Guaranty Payment"), calculated by
subtracting the assessed value of the Property from $18,000,000. That number shall be
multiplied by the mill rate for all taxing jurisdictions established for the then -current year for the
District, with the resulting Guaranty Payment being due and payable by Developer to the City on
or before November 1 of the following year.
X. DEVELOPER: EVENT OF DEFAULT.
A. Event of Default. An "Event of Default" is any of the following:
1. Failure to Construct the Prot. Subject to the terms of this
Agreement, the Developer fails to construct the Project consistent with Article IV, above; or
2. Taxes. The Developer fails to pay any real or personal property
tax or any special assessment levied or imposed by the State, County, or City against all or any
portion of the Property then owned by the Developer before they are delinquent, and in any event
within ninety (90) days after written notice from the City of such failure; provided that the
Developer shall have the right to contest the same in accordance with applicable law; or
Tax Exemption. All or any portion of the Property becomes tax
exempt; or
4. Breach of Agreement. The Developer breaches any provision of
this Agreement or its obligations under this Agreement; provided, however, that written notice of
the breach has been given to the Developer and the Developer has failed to cure such breach
within sixty (60) days or such longer period as is reasonably required under the circumstances
and the Developer has begun to cure such breach in good faith and is diligently continuing to
cure such breach.
B. City Options upon Event of Default. Whenever an Event of Default
occurs under Section X.A, the City may take one or more of the following actions, in the City's
sole and absolute discretion:
1. Suspend or terminate the performance of any and all of its
undertakings and obligations under this Agreement, including, but not limited to, making any
further payments under this Agreement during the pendency of the Event of Default.
2. Take any action, including legal or administrative action, at law or
in equity, which may appear necessary or desirable to the City to enforce performance and
12
16715866.7
observance of any obligation, agreement, or covenant of the Developer under this Agreement or
to seek remedy for its breach. Such rights and remedies shall not be exclusive of any other
remedy or remedies, and such rights and remedies shall be cumulative and shall be in addition to
every other right and remedy given under this Agreement or now or hereafter existing at law or
in equity or by statute. Notwithstanding the foregoing, if an Event of Default under
Section X.A.1 occurs, the City's exclusive remedies shall be as set forth in Section X.B.1 above:
provided, further, that, if Developer fails to construct the Project by no later than December 31,
2017, City shall have the further remedy to recover from Developer any Project Costs previously
paid by City.
C. Delay in Exercise of Rights Not Waiver. No delay or omission to exercise
any right or power accruing to the City or the Developer upon any default by the other party shall
impair any such right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed expedient as long
as the default is continuing.
D. Written Waiver Required. In the event this Agreement is breached by
either party and such breach is expressly waived in writing by the other party, such waiver shall
be limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous, or subsequent breach hereunder. A party's acquiescence in not enforcing
any portion of this Agreement shall not provide a basis for the application of estoppel or other
like defense or otherwise constitute waiver. Any waiver of any provision of this Agreement by
the City must be express and in writing.
E. Compensation for Costs of Breach. Whenever there is an Event of Default
by the Developer hereunder, and the City employs attorneys or incurs other expenses for the
collection of payment due or to become due for the enforcement or performance or observance
of any obligation or agreement on the part of the Developer contained in this Agreement, the
Developer shall, on demand thereof, pay to the City the reasonable fees of such attorneys and
such other reasonable expenses incurred by the City.
XI. MISCELLANEOUS PROVISIONS.
A. Incorporation of Attachments. All exhibits and other documents attached
hereto or referred to herein are hereby incorporated in and shall become a part of this Agreement.
B. Term. Unless terminated under Article X, above, the term of this
Agreement shall begin as of the Effective Date and shall continue until November 1, 2045,
unless terminated earlier in accordance with the termination by the City of the District in
accordance with the Tax Increment Law.
C. Review and Inspections. The City will act diligently to review all
necessary approvals, licenses, and permits and to undertake any inspections duly requested by
the Developer.
D. Restriction on Assignment of Agreement.
13
16715866.7
1. Agreement. The Developer may assign or transfer all of its rights
under this Agreement to an Affiliate without the express prior written consent of the City only if
the proposed Affiliate assignee or transferee agrees in writing to assume all of the Developer's
obligations under this Agreement and the Developer provides the City with timely written notice
and a copy of such fully executed assumption. Otherwise, upon an assignment or transfer of all
of the Developer's rights under this Agreement to (i) a non -Affiliate, or (ii) an Affiliate that does
not agree in writing to assume all of the Developer's obligations under this Agreement, this
Agreement shall terminate at the option of the City and be of no further force or effect, except if
the Developer obtains the express written consent of the City, which shall be in the sole and
absolute discretion of the City. All of the rights and obligations under this Agreement must be
assigned or transferred together, if at all, and may not be assigned separately.
2. Transfer of Property. The Developer may sell, assign, or transfer
all or any portion of the Property to an Affiliate without the express prior written consent of the
City only if the proposed Affiliate assignee or transferee agrees in writing to assume all of the
Developer's obligations under this Agreement, and the Developer provides the City with timely
written notice and a copy of such fully executed assumption. Otherwise, upon a sale,
assignment, or transfer of all or any portion of the Property to (i) a non -Affiliate, or (ii) an
Affiliate that does not agree in writing to assume all of the Developer's obligations under this
Agreement, this Agreement shall terminate at the option of the City and be of no further force or
effect, except if the Developer obtains the express written consent of the City, which shall be in
the sole and absolute discretion of the City.
E. Tax Exempt Organizations. For and in consideration of this Agreement
and the nature of the District, the Developer acknowledges and agrees that, during the term of the
District, neither the Property nor any part thereof or interest therein shall be sold, transferred,
leased, assigned, gifted, owned, used, or conveyed in any way to any person, partnership,
organization, or entity that is all or partially exempt from federal or State of Wisconsin income
taxes or real or personal property taxes, without the express prior written consent of the City,
which such consent may be withheld in the City's sole and absolute discretion.
F. Force Majeure. A party shall be excused from its obligations under this
Agreement if and to the extent and during such time as the party is unable to perform its
obligations or is delayed in doing so due to events or conditions outside of the party's reasonable
control (each a "Force Majeure Event") based solely upon acts of God, war, fire, or other
casualty, riot, civil unrest, extreme weather conditions, terrorism, strikes, and labor disputes.
Upon the occurrence of a Force Majeure Event, the party incurring such Force Majeure Event
will promptly give notice to the other party, and thereafter the parties shall meet and confer in
good faith in order to identify a cure of the condition affecting its performance as expeditiously
as possible.
G. District Information. As soon as practicable, but no later than
December 15 of each calendar year, the City shall provide to the Developer the information
pertaining to the Available Tax Increment for the calendar year of the request; provided,
however, the City is only required to submit information in its possession and is not required to
reply to any request prior to December 15 of any calendar year.
14
16715866.7
H. Time of the Essence. Time is deemed to be of the essence with regard to
all dates and time periods set forth herein and incorporated herein.
T. Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this Agreement.
T. Delivery of Notices. Any notice required hereunder shall be given in
writing, signed by the party giving notice, personally delivered, mailed by certified or registered
mail, return receipt requested, sent by overnight delivery service, or faxed to the parties
respective addresses as follows, provided any notice given by facsimile is also given by one of
the other methods:
To the City: City of Oshkosh
City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI54903-1130
Attn: City Attorney
Facsimile No. 920-236-5106
With a copy to: Godfrey & Kahn, S.C.
100 W. Lawrence Street
Appleton, WI 54911
Attn: Michael J. Lokensgard
Facsimile No. 920-830-3530
To Developer: Fox Valley Pro Basketball, Inc.
2370 State Road 44, Suite A
Oshkosh, WI 54904
Attn:
Facsimile No. 920 -
With a copy to:
and shall be deemed given upon personal delivery, the first business day after certification or
registration, the first business day after deposit with the overnight delivery service, and upon
acknowledgement of receipt by facsimile or electronic mail (provided notice is promptly sent by
one of the other methods).
K. Entire Agreement. This Agreement and all other documents and
agreements expressly referred to herein, contain the entire agreement between the Developer and
the City with respect to the matters set forth herein. This Agreement may be modified only in
writing signed by all parties.
15
16715866.7
11. Law Applicable. This Agreement shall be construed in accordance with
the internal laws of the State of Wisconsin.
M. Originals and Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original.
N. Amendments to Agreement. This Agreement shall not be amended orally
but only by the written agreement of the parties signed by the appropriate representatives of each
party and with the actual authority of each party.
O. Limitation on Liability. The parties acknowledge and agree that in
carrying out any of the provisions of this Agreement or in exercising any power or authority
granted to them thereby, there shall be no personal liability of the either parties' officers,
members, agents, employees, or representatives, it being understood and agreed that in such
matters they act as agents and representatives of the applicable party.
P. No Partnership. This Agreement specifically does not create any
partnership or joint venture between the parties, or render any party liable for any debts or
obligations of the other party.
Q. Recording of Agreement. The parties hereto agree that at the City's option
a memorandum of this Agreement, including reference to the Restrictive Covenant, may be
recorded on the record title to the Property. The Developer shall upon request of the City
execute and deliver any such memorandum or other document in connection with such
recording.
R. Developer's Obligations Run with the Land. The Developer's obligations
under this Agreement and all consents, obligations, waivers, restrictions, and other requirements
of the Developer as set forth in this Agreement, shall be deemed to be covenants running with
the land and shall be binding upon the Property and the successors, assigns, and other transferees
of the Developer. The rights and benefits conferred upon the Developer shall not be covenants
running with the land and shall not inure to the successors, assigns, or other transferees of the
Developer, except as set forth in Section XLD, above.
S. Severance. If any portion of this Agreement is deemed invalid or
unenforceable by a court of competent jurisdiction, then the remainder of this Agreement shall
remain in full force and effect and enforceable to the fullest extent permitted by law.
T. Third Parties. This Agreement is made for the exclusive benefit of the
parties hereto, and their permitted assignees (as set forth in Section XLD.), and is not for the
benefit of any other persons, as third party beneficiaries or otherwise, and this Agreement shall
not be deemed to have conferred any rights, expressed or implied, upon any other party, except
as set forth in Section XLD.
U. Neutral Construction. This Agreement is the result of a negotiated
agreement by the parties and prior to the execution of this Agreement each party had sufficient
opportunity to have review of the document by legal counsel. Nothing in this Agreement shall
16
16715866.7
be construed more strictly for or against either party because that party's attorney drafted this
Agreement or any portion thereof or attachment hereto.
V. Headings. The headings inserted in this Agreement are for convenience
only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or
any provision of this Agreement
[Signatures Begin On Next Page]
17
16715866.7
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the
date stated in the first paragraph of this Agreement.
STATE OF
COUNTY OF
}
ISS
}
FOX VALLEY PRO BASKETBALL, INC.
BY:
Its:
Personally came before me this day of , 2017, the
above-named , to me known to be the person who executed the foregoing
instrument.
Notary Public, State of
My Commission:
18
16715866.7
CITY OF OSHKOSH, WISCONSIN
Bv:
IN
Approved as to form:
itz
Lynn A. Lorenson, City Attorney
STATE OF WISCONSIN }
ISS
COUNTY OF WINNEBAGO }
Mark A. Rohloff, City Manager
Pamela R. Ubrig, City Clerk
Personally came before me this day of , 2017, the above
named Mayor and City Clerk, to me known to be the person who executed the foregoing
instrument.
Notary Public, State of Wisconsin
My Commission:
19
16715866.7
REDEVELOPMENT AUTHORITY OF
THE CITY OF OSHKOSH, WISCONSIN
By:
Chair
IM
STATE OF WISCONSIN }
ISS
COUNTY OF WINNEBAGO }
Executive Director
Personally came before me this day of , 2017, the above
named Chair and Executive Director, to me known to be the person who executed the foregoing
instrument.
Notary Public, State of Wisconsin
My Commission:
20
16715866.7
EXHIBIT A
Description of Property
All of Lots One (1) and Two (2) of Certified Survey Map No. 7081 filed in Volume 1 of
Certified Survey Maps on Page 7081 as Document No. 1712374, all in the Original Third Ward
Plat, located in the Fractional Northwest 1/4 of Section 25, Township 18 North, Range 16 East, 3 d
Ward, City of Oshkosh, per Leach's Map of 1894, Winnebago County, Wisconsin.
Parcel No. 903-0324-0100 and 903-0324-0200
16715866.7
EXHIBIT B
Description of Project Plan
The proposed project will take place on an 8.77 acre blighted area which includes the former
location of the Buckstaff Company located along South Main Street between East South Park
Avenue and East 1 Ph Avenue in the City of Oshkosh.
Buckstaff Company operated a wood furniture company on the site since 1850 and closed
permanently in 2011. Currently, the site is being prepared for redevelopment which includes
asbestos removal, building demolition and concrete foundation removal.
Fox Valley Pro Basketball, Inc. is proposing to develop a 3,500 seat multi -use arena on the
subject site which will also house a 157 seat sports bar and team store open to the public on non-
event days. The arena will host the Milwaukee Buck's Development League (D League) team
for approximately 24 games during the November through May season. Fox Valley Pro
Basketball, Inc. will hold concerts and other sporting events in the proposed arena.
Fox Valley Pro Basketball, Inc. will be responsible for onsite private development costs as well
as the cost of public infrastructure improvements required in the right of way to serve the site
and arena.
Fox Valley Pro Basketball, Inc. intends to open for the 2017-2018 D League basketball season
starting in November of 2017.
16715866.7
EXHIBIT C
Estimate of Property Project Costs
Supporting Project Ust Providing Bash for Development incentive
Project Name/Type Projected E- 11th Ave S, Park Ave 'S, Main St, Site Work Total
Prolect ID Year
1
Concrete Paving
2017
2
Water Ma'am
2017
3
Samtary Sewer Main
2017
4
Storm'Sewer
2017
5
Sidewaffik
2017
6
Ira,ffic 5ignah
2017
7
Street Lights
2017
18
Remediation Expense
2017
79,200
Geo Pier & Grid lnstaHatlon
2017
10
Stormwater Management
2017
Totall Suippo rttng Project List
825,000
3,24,0604
im,00a
504,0)f44
162,000
g6,00a
Project ID
248,000
801,000
66,0010
2019-2040
146,000
70,000
970,1rO6
2,541,995
1,040,000
57,600
32,000
30,0 1
119'em
125,000
125,000
250,000
79,200
44,000
1()0,040
223,200
825,0010
825,000
755,600
759,600
234,050
234,050
887,800
1,,503,000
130,0ip040Y 1,818,6so
4349,450
Estimated Projed Ust
Project Name/lype
Projected
Total
Project ID
Year
11 Etevelopment Incentive PHndpaG
2019-2040
{Total' from Abovej 4,349,450
12 Dev6opment Incentive Interest
2019-2040
2,541,995
13 SEA Loan
2019-2082
185,551
14 Adrn'nistrat've Costs
2017 - 20,44)
265,000
Total Projects
7,141,996
Notes:
Cost esbmales forPtojettlDNas. 1 , 10 provided LV OlVsLaff.
'Poruom of L. 11th Avanm, S. Park Avenue, and S Main Stireet that will be irnIptoved edjoinbut do mot He Lnhrelywothin the bowidarivs �ofthe DiMriet. To the LxLerA
intprovemcnts are made outside Vie DJ5trJCt,thLSe irrproVo_,�nCrjt, are digible Project Costs pursuant to WiscomIn Statutes Section
16715866.7
EXHIBIT D
CITY MRO
UNITED STATES OF AMERICA
STATE OF WISCONSIN
COUNTY OF WINNEBAGO
CITY OF OSHKOSH
TAXABLE TAX INCREMENT PROJECT MUNICIPAL REVENUE OBLIGATION ("MRO")
Number Date of Original Issuance Amount
IW
FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin (the
"City"), promises to pay to Fox Valley Pro Basketball, Inc. (the "Developer"), or registered
assigns, but only in the manner, at the times, from the source of revenue and to the extent
hereinafter provided, the principal amount not to exceed [$4,349,450], with interest thereon at
the rate of five percent (5%) per annum, adjusted on November 1, 2024 to a rate equal to the
then -current City tax-exempt general obligation cost of fundsl�us two percent (2%), not to
exceed eight percent (8%).
Interest shall begin to accrue on the date on which this MRO is issued. This MRO shall
be payable in installments on November 1 (the "Payment Dates") in each of the years set forth
in Schedule 1 attached hereto in an amount equal to the Available Tax Increments for the prior
year provided such payments are due under the Development Agreement, as hereinafter defined.
Payments shall be applied first to accrued interest and second to unpaid principal. Payments on
this MRO shall be made only to the extent that the City has received Available Tax Increments.
This MRO has been issued to finance projects within the City's Tax Incremental District
No. 31 ("District") and is payable only from the income and revenues herein described, which
income and revenues have been set aside as a special fund for that purpose and identified as the
"Special Redemption Fund" provided for under the Resolution adopted on , 2017 by
the Common Council of the City (the "Resolution"). This MRO is issued pursuant to the
Resolution and pursuant to the terms and conditions of the Tax Incremental District No. 31
Development Agreement dated as of , 2017 among the City, the Redevelopment
Authority of the City of Oshkosh, Wisconsin, and the Developer ("Development Agreement").
This MRO does not constitute an indebtedness of the City within the meaning of any
constitutional or statutory limitation or provision. This MRO shall be payable solely from
Available Tax Increments generated by the Project located within the District and appropriated
by the Common Council to the payment of this MRO (the "Revenues"). Reference is hereby
made to the Resolution and the Development Agreement for a more complete statement of the
revenues from which and conditions and limitations under which this MRO is payable and the
general covenants and provisions pursuant to which this MRO has been issued. The Resolution
and Development Agreement are incorporated herein by this reference. Capitalized terms used
16715866.7
in this MRO which are not defined in this MRO shall have the meaning attributable to such
terms as set forth in the Development Agreement.
The City shall have no obligation to pay any amount of this MRO which remains unpaid
after the Final Payment Date of November 1, 2045.
The City makes no representation or covenant, express or implied, that the Available Tax
Increments or other Revenues will be sufficient to pay, in whole or in part, the amounts which
are or may become due and payable hereunder.
The City's payment obligations hereunder are subject to appropriation, by the Common
Council, of Available Tax Increments to make payments due on this MRO. In addition, as
provided in Section N.D of the Development Agreement, the total principal amount to be paid
shall in no event exceed [$4,349,450]. When the amount of Revenue has been appropriated and
applied to payment of this MRO, the MRO shall be deemed to be paid in full and discharged, and
the City shall have no further obligation with respect hereto. Further, as provided in Section
IX.B.1 of the Development Agreement, the City shall have no obligation to make payments on
this MRO in the event of certain defaults under the Development Agreement.
This MRO is a special, limited revenue obligation and not a general obligation of the City
and is payable by the City only from the sources and subject to the qualifications stated,
incorporated or referenced herein. This MRO is not a general obligation of the City, and neither
the full faith and credit nor the taxing powers of the City are pledged to the payment of the
principal of this MRO. Further, no property or other asset of the City, except the above -
referenced Revenues, is or shall be a source of payment of the City's obligations hereunder.
Subject to the foregoing, the City may, at its option, prepay this MRO at any time after
the seventh (7th) anniversary of the date hereof.
This MRO is issued by the City pursuant to, and in full conformity with, the Constitution
and laws of the State of Wisconsin.
This MRO may be transferred or assigned, in whole or in part, only with the consent of
the City. Interests in this MRO may not be split, divided or apportioned. In order to transfer or
assign the MRO, the transferee or assignee shall surrender the same to the City either in
exchange for a new, fully -registered municipal revenue obligation or for transfer of this MRO on
the registration records for the MRO maintained by the City. Each permitted transferee or
assignee shall take this MRO subject to the foregoing conditions and subject to all provisions
stated or referenced herein.
It is hereby certified and recited that all conditions, things and acts required by law to
exist or to be done prior to and in connection with the issuance of this MRO have been done,
have existed and have been performed in due form and time.
16715866.7
IN WITNESS WHEREOF, the City Council of the City of Oshkosh has caused this MRO
to be signed on behalf of the City by its duly qualified and acting City Manager and City Clerk,
and its corporate seal to be impressed hereon, all as of the date of original issue specified above.
CITY OF OSHKOSH
By:
Name:
Title:
Attest:
Name:
Title:
16715866.7
Schedule 1
Payment Schedule
Subject to the City's annual receipt of Available Tax Increment and the terms and conditions of
the Development Agreement, the City shall pay to Developer the total Project Increment Surplus
received by the City for the prior year:
Payment Date
Payment Amount
November 1, 2019
Available Tax Increment for 2018
November 1, 2020
Available Tax Increment for 2019
November 1, 2021
Available Tax Increment for 2020
November 1, 2022
Available Tax Increment for 2021
November 1, 2023
Available Tax Increment for 2022
November 1, 2024
Available Tax Increment for 2023
November 1, 2025
Available Tax Increment for 2024
November 1, 2026
Available Tax Increment for 2025
November 1, 2027
Available Tax Increment for 2026
November 1, 2028
Available Tax Increment for 2027
November 1, 2029
Available Tax Increment for 2028
November 1, 2030
Available Tax Increment for 2029
November 1, 2031
Available Tax Increment for 2030
November 1, 2032
Available Tax Increment for 2031
November 1, 2033
Available Tax Increment for 2032
November 1, 2034
Available Tax Increment for 2033
November 1, 2035
Available Tax Increment for 2034
November 1, 2036
Available Tax Increment for 2035
In any event, the total payment to Developer on this MRO shall not exceed $4,349,450,
exclusive of interest.
16715866.7
REGISTRATION PROVISIONS
This MRO shall be registered in registration records kept by the City Clerk of the City of
Oshkosh, Winnebago County, Wisconsin, such registration to be noted in the registration blank
below and upon said registration records, and this MRO may thereafter be transferred only upon
representation of this MRO together with a written instrument of transfer approved by the City
and duly executed by the Registered Owner or his attorney, such transfer to be made on such
records and endorsed hereon.
Date of Registration Name of Registered Owner Signature of City Clerk
16715866.7
EXHIBIT E
Projected District Revenue and Expenses
See attached
16715866.7
Cash Flow
City of
Oshkosh,
Wisconsin'
Tax Increment
Cash Flow
District
Projection
# 31
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Obligation'PayAs You Go (PAYGO) Developer
illllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllomiw=���illllllllllllllllllllllllllllllllllllllllll
Interest
Developer
PAYGO
Tax
Earnings/
Total
Beginning
I oce utive Deferred
Ending
P rinc Ipa I
Increments
(C'"t)
Rexesnues
PrincIpal'
Payments Interest
Interest
PrincIpal
S BA To a P'
Admin.
Annual
Cumulative Outstanding
2017
0
4,349,450
108,736•••
oD'000)
o
4:418 1986
2019
485,696
104 �
.,782
4,681,096
415,829
213,263
4,478,530
13,254
10,000
49,700
4,478,530
• •4•
: ,.•.
44 •
462,443
0.804
,
,
0000:
.•.
•
�O�
,
•
48
,: .•.
4
462,443
4
4
0000
,: .•.
•
4
•
• •••3,613,716
•
4•
.•.
4 44159,564
3,350,83713,254
10000:
.•.
•
••
• 4
•
4 •
•
0,000
•3,032,814•
4
•
48
,: .•.
• 4
4 44
.. •
4
0000
,: .•.
•
••
•
.•
•
4
4
10,000
.•
•
0
2,574,928
••
•••
• •
• •
2,308,100
0000
•
•• ••
• •
•
•• ••
• •
0000
•
•
• •
•
•
• •••
•2,013,923•
•
•
.•
•
4
4
10,000
.•
•
80,457
• •••
0
(0)
11689,992
•
488
1,501,49
10,000
.•
•
011501,249
269'831
0
62,071
1,303, 88
10,000
0
0
11303,488
•
•
• 4
• •4•
0000
•
• •4•
•
•
• •4•
•••
••
0000
••
•
••9
219,831
30,899
648,87710,000
269,831
•
488
2038
269'83 1
0
269 K
648,877
259,832
19,452
408,497
10,000
269,832
(0)
0
408,497
2039
269'831
�O�
269::311
408,497
219,831
7,433
156,100
10,000
269,831
0
(0)
156,100
2040
269'83
•4
•
•..
04
277,344
652,981
•
•4
2043
269'83 1
3,060
282,891
282,891
935'872
0
2044
269'831
18,717
288549
288,549
1,224,420
0
2045
269,831
24,488
294:320
294,320
1,118,740
0
Total
-�
•••
Notes:
Projected TID Closure
�Percentage,
term and Interest rate shown
for purposes of
establishing economic
feasibility only. The City has not agreed
to terms or conditions
with the proposed
developer
as to any public
participation
in the project.
mifial princIpal
amount of development Incentive
is equal
to the City's estimated
cost ofthe public Improvements
and TO
eligible site Improvements
that
will be required
to support the redevelopment
project.
Reflects remaining liability for existing SBA loan associated with the property to be acquired by the City.
Project Plain TO No. 31 Creation City of Oslhkoslh
pared by Ehlers Page 22 February 22, 2017