HomeMy WebLinkAbout240 Algoma Blvd. LLC. & Oshkosh 8341888
Development Agreement Tx;4248382
Document Number Document Title 7
838
REGISTER'SOFFICE
WINNE AGO COUNTY, W1
Development Agreement between City of Oshkosh and 240 Algoma Boulevard, RECORDED O9
LLC for TIF District No. 28 04/21/2017 12:37 P
NATAL1E "�61OH EYE
REGISTER OF DEEDS
Recording 1 IN EEE 30.00
N) 7 M-1 Name and Return A Z5
City Attorney's Office
TORNETX � ° Oshkosh,WI 54902-1130
cv-o �
907-0142-1200
Parcel Identification No.
Z3
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is made as of the 15—day of[March],
2017(the"Effective Date")by and between the CITY OF OSHKOSH,WISCONSIN,a Wisconsin
municipal corporation(the"City"), and 240 ALGOMA BLVD LLC, a Wisconsin limited liability
company(the "Developer").
RECITALS
A. The Developer has purchased certain property known as the Orville Beach
Memorial Manual Training School, located at 240 Algoma Boulevard in the City of Oshkosh,
Wisconsin, which property is more particularly described on Exhibit A attached hereto (the
"Propert ").
B. The Developer plans to redevelop the Property into a mixed-use commercial and
residential building with surface parking as approved by the Common Council on June 14, 2016
through Resolution 16-306 (the"Project").
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C. Pursuant to Wis. Stats. §66.1105 (the "Tax Increment Law"), the City has (i)
created Tax Increment District No.28 (Beach Building Redevelopment Project)(as amended from
k time to time,the"TIF District"), and (ii) approved a project plan for the redevelopment of the TIF
District(as amended from time to time the "TIF District Project Plan").
D. The Property is located within the TIF District.
E. The Developer desires to redevelop and operate the Property in accordance with
the provisions of this Agreement and the TIF District Project Plan.
F. The Developer's ability to develop the Project is contingent upon the City providing
financial and other assistance to Developer on the terms set forth in this Agreement.
G. The City finds it to be in the public interest to utilize tax incremental financing to
assist the Developer to undertake the Project, consistent with the terms and conditions of this
Agreement.
H. Funds used to provide the Developer with the tax incremental financing for the
Project Costs (the "TIF Funds") shall be raised solely from tax income generated from the Project
in the TIF District.
I. The City finds that construction of the Project, and fulfillment of the terms and
conditions of this Development Agreement are in the vital and best interest of the City and its
residents and fulfill a public purpose in accordance with state law.
NOW THEREFORE,in consideration of the foregoing recitals that are incorporated hereto
and made a part of this Agreement, the promises, covenants and agreements contained in this
15615909.6
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Agreement and other good and valuable consideration, the receipt and sufficiency of which are
acknowledged,the Developer and the City promise, covenant and agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate"means any entity that, directly or indirectly, controls, is controlled by or
is under common control with a 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
majority of the voting securities of the entity.
"City"means the City of Oshkosh, Wisconsin, a Wisconsin municipal corporation,
its successors and assigns.
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"City Contribution" means payments provided by the City to the Developer from
future Tax increments as set forth in Section 2, below.
"Completion Date"means December 31, 2016.
"Default" means the occurrence of one or more of the events described in Section
F
17,below.
"Equity Contribution" means an investment by Developer of not less than One
Million Four Hundred Ninety Four Thousand Seven Hundred Fourteen and No/100 Dollars
($1,494,714.00)in the Project.
"Expiration Date"means the date of termination of the TIF District under Wis. Stat.
§66.1105(7).
"Loan"means one or more loans to fund Project Costs in the maximum amount of
One Million Eight Hundred Thousand and No/100 Dollars ($1,800,000.00).
"Project Costs" means the total costs of acquiring and constructing the Project,
including all capital expenditures (or expenditures that could be treated as capital
expenditures) and preliminary expenditures (such as architectural, engineering, surveying,
soil testing and similar costs that are incurred in connection with the construction of the
Project) and all other direct and indirect costs of development of the Project in accordance
with the Project Plans.
"Project Plans"means final detailed plans and specifications for the Project, and all
other improvements to be located on the Property.
"Propert " means the parcel of land upon which the Project is located, as legally
described on Exhibit A.
"Term" means the period of time from the Effective Date of this Agreement to the
Expiration Date.
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"TIF District" means Oshkosh Tax Incremental District No. 28 (Beach Building
Redevelopment).
"Tax Increment" shall have the meaning given under Wis. Stat. §66.1105(2)(i)but
shall be limited to the Tax Increment attributable to the Property and the improvements on
the Property.
2. City Contribution. Subject to all the terms and conditions of this Agreement and
applicable law,the City will provide payments to the Developer solely from future Tax Increments
to assist with Project Costs. The City Contribution shall be payable beginning in 2018. The City
Contribution will be equal to ninety percent (90%) of the Tax Increment attributable to the
Property, which shall be calculated by subtracting the TIF District base value from the assessed
value of the Property as of January 1, 2017 and each year thereafter, and multiplying the result, if
positive, by the mill rate for all taxing jurisdictions established for each year. The City
Contribution shall be due and payable to the Developer on or about [October 30,20181 and each
[October 30]thereafter. The City's obligation to make the City Contribution shall end and expire
as of the earlier of (i) the Expiration Date, or (ii) the receipt by Developer of the Approved
Contribution in the event that the City Contribution is limited by operation of Section 3,below. A
pro forma City Contribution calculation is attached hereto as Exhibit B.
Payments under this Agreement shall be solely from Tax Increment attributable to
the Property actually received by the City. In no event shall the City's payment to the Developer
exceed the total Tax Increment generated by the Property. The City Contribution shall be a special
and limited obligation of the City and not a general obligation. The City covenants and agrees,
however, not to utilize any Tax Increment received with respect to the Property during any year
for any purpose other than payment of the City Contribution unless and until the City has paid the
City Contribution in full for such year.
The Developer acknowledges that, as a result of the special and limited nature of
the City's obligation to pay the City Contribution, the Developer's recovery of the City
Contribution depends on various factors including,but not limited to, future mill rates, changes in
the assessed value of the Property, failure of the Property to generate Tax Increments at the rate
expected by the Developer,changes in the Tax Increment Law,and other failures beyond the City's
and/or the Developer's control. Additionally, the City shall have no obligation to make the City
Contribution unless and until the Developer has made all payments owed to the City by Developer
for real estate taxes, personal property taxes, special assessments, and special charges.
3. City Contribution Adjustment. The City Contribution amount is based upon the
proforma ten(10) year Internal Rate of Return("IRR") submitted by the Developer to the City, a
copy of which is attached hereto as Exhibit C. Developer and the City agree that to the extent that
the project's performance varies materially from the proforma IRR,the City Contribution may be
adjusted pursuant to this Section 3.
On or before the thirtieth(30th)day following the tenth(10th)anniversary of the Completion
Date (the "Test Date"), Developer shall provide the City with copies of all internally prepared
financial statements (kept in accordance with generally accepted accounting principles) and a
complete annual cash flow update based on actual income and expenses (in a format consistent
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with the example in Exhibit C) for the Project for the period from the Completion Date to the Test
Date. Within ten (10) business days thereafter, Developer and the City shall, using information
from the financial statements and cash flow update, and the methodology utilized to calculate the
original Project proforma IRR(as set forth on Exhibit C ,and applying the Approved Assumptions
(as defined below) to supply any information that is not known as of the Test Date, calculate the
actual IRR as of the Test Date.
If the actual IRR calculated on the Test Date as proposed based upon the updated analysis
exceeds 15 percent (15%), the City shall reduce the City Contribution to the amount necessary to
4 allow Developer to achieve a fifteen percent (15%) annual IRR over the Term (the ' pry oved
Contribution"). In the event that the City has already paid Developer more than the Approved
Contribution as of the Test Date,Developer shall refund such excess City Contribution to the City
within ninety(90) days of the recalculation date.
E As used herein, the "Approved Assumptions" shall be the present value of historic tax
credits,terminal capitalization rate,lease rates and all other assumptions agreed upon by Developer
€' and the City as of the date the proforma IRR is updated, and absent such agreement, as determined
by an independent MAI appraiser with not less than ten (10) years' experience appraising
commercial and multi-family properties in the Appleton-Oshkosh-Neenah metropolitan statistical
area. All costs for the independent appraiser shall be shared equally by the City and the Developer.
4. Conditions Precedent to City's Obligations. In addition to all other conditions and
requirements set forth in this Agreement,the obligations of the City hereunder(including,without
limitation, the obligation of the City to pay the City Contribution) are conditioned upon the
satisfaction of each and every of the following conditions:
(a) On or before the date of this Agreement, the Developer shall provide the
City an opinion of its counsel reasonably acceptable to the City stating,among other things,
that the persons executing this Agreement on behalf of the Developer are authorized to do
so, that the Developer has duly authorized entry into this Agreement, and other matters as
are reasonably requested by the City.
(b) On or before the date of this Agreement,the Developer shall have provided
the City with(i) certified copies of its Articles of Organization and Operating Agreement,
and (ii) a current Certificate of Status issued by the Wisconsin Department of Financial
Institutions.
(c) On the date of each payment made to Developer pursuant to Section 2,
above,no uncured default,or event which with the giving of notice or lapse of time or both
would be a default, shall exist under this Agreement.
(d) The Developer shall have made the Equity Contribution to the Project and
provided proof of such Equity Contribution to the City in the same manner as required by
the provider of the Loan.
Unless all conditions contained in this Section 4 are satisfied within the time periods
for satisfaction of such conditions as set forth above or such conditions are waived in writing by
the City within the time periods for satisfaction of such conditions as set forth above, the City, at
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its option, exercised in its sole discretion, may terminate this Agreement, in which event none of
parties to this Agreement shall have any further liability or other obligation to the other parties.
5. Representations Warranties of Developer. The Developer represents and warrants
to the City as follows:
(a) The Developer is a limited liability company duly organized and validly
existing and has the power and all necessary licenses, permits, and franchises to own its
assets and properties and to carry on its business.
(b) The Developer is duly licensed or qualified to do business in the State of
Wisconsin and all other jurisdictions in which failure to do so would have a material
adverse effect on its business or financial condition.
(c) The execution, delivery and performance of this Agreement have been duly
authorized by all necessary limited liability company action of the Developer and constitute
the valid and binding obligations of the Developer enforceable in accordance with their
terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium,
general principles of equity, and other similar laws of general application affecting the
enforceability of creditors' rights generally.
(d) The execution, delivery, and performance of the Developer's obligations
pursuant to this Agreement will not violate or conflict with the Developer's Articles of
Organization or Operating Agreement or any indenture, instrument or agreement by which
the Developer is bound,nor will the execution, delivery or performance of the Developer's
obligations pursuant to this Agreement violate or conflict with any law applicable to the
Developer or to the Project.
(e) There is no litigation or proceeding pending or affecting the Developer or
the Project, or,to the best of the Developer's knowledge, threatening the Developer or the
Project, that would adversely affect the Project or the Developer or the enforceability of
this Agreement, the ability of the Developer to complete the Project or the ability of the
Developer to perform its obligations under this Agreement.
(f) To the best of the Developer's knowledge, no default, or event which with
the giving of notice or lapse of time or both would be a default,exists under this Agreement,
and the Developer is not in default (beyond any applicable notice and cure period) of any
of its obligations under any other agreement or instrument to which the Developer is party
or obligor.
6. Covenants of Developer. During the Term of this Agreement, the Developer
covenants to the City as follows:
(a) The Developer shall pay for all work performed and materials furnished for
the Project as and when due.
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(b) On or before the Completion Date, the Project shall be completed (subject
to matters of force majeure), and in all other respects be ready for occupancy and use by
the Developer.
(c) The Developer shall conform and comply with, and will cause the Project
to be in conformance and compliance with, all applicable federal, state, local and other
laws, rules, regulations and ordinances, including without limitation, all zoning and land
division laws, rules, regulations, and ordinances, all building codes and ordinances of the
City, and all environmental laws, rules,regulations, and ordinances.
(d) The Developer shall cause the Project to be constructed in a good and
workmanlike manner and substantially in accordance with the Project Plans and will
promptly correct any defects, structural or otherwise, in any construction or deviations
from the Project Plans. Construction of the Project shall be completed free of all liens and
encumbrances except for those liens and encumbrances permitted by this Agreement.
(e) The Developer shall pay or cause to be paid prior to delinquency all federal,
state and local taxes in connection with the Project. The Developer shall pay when due all
operating expenses in connection with the Project.
(f) The Developer shall comply with the requirement to provide notification of
position openings under Wis. Stat. § 66.1105(6c), and, to the extent notified by the City
prior to the date of this Agreement,with any other applicable material restriction affecting
the TIF District and with all laws,rules,regulations and ordinances generally applicable to
tax increment districts that are applicable to the Project.
(g) The Developer shall have in effect at all times, all permits, approvals and
licenses that may be required by any governmental authority or nongovernmental entity in
connection with the development, construction,management and operation of the Project.
(h) Except for a mortgage, any related assignment(s) of leases and rents and/or
other collateral documentation in favor of Lender securing the Loan, the Developer will
not mortgage or otherwise place a lien or encumbrance on the Property without first
obtaining the City's consent.
(i) The Developer, at its cost and expense, shall operate, maintain, repair and
replace (including without limitation, repairs and replacements of a capital nature) all
elements of the Project. The Developer's maintenance and repair obligations shall include
both day to day maintenance and repair and extraordinary maintenance and repair and shall
include maintenance, repair and replacement of all elements or systems of the Project as
are necessary in order to maintain the Project. The Developer will not defer any required
maintenance, repair or replacement (including, without limitation, repairs and
replacements of a capital nature)of any element of the Project and shall establish adequate
reserves therefore.
0) The Developer will not, without the City's consent, initiate any change in
the zoning classification of all or any portion of the Property.
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7. Damage; Destruction. In the event of fire, damage, or any other casualty to any
part of the Project,the Developer agrees, at its cost and expense,to rebuild, repair and replace the
Project in the condition it was in immediately prior to the casualty. The fair market value of the
Project following reconstruction and/or repair by the Developer must be greater than or equal to
the fair market value of the Project immediately prior to the casualty.
If the Project is required to be rebuilt or repaired or replaced, then the Project shall be
rebuilt,repaired or replaced in accordance with plans and specifications prepared by the Developer
and approved by the City. The Developer agrees to apply any necessary portion of the insurance
proceeds to rebuild, repair and replace the Project. The proceeds of insurance shall be disbursed
for the replacement, rebuilding or repair of the Project pursuant to the terms and conditions of a
disbursing agreement among the City, the Developer and an escrow agent mutually agreed upon
by the City and the Developer. Any amount required in excess of insurance proceeds for
rebuilding, repair and/or replacement of the Project shall be paid by the Developer.
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8. Costs. The Developer shall each year during the Term of this Agreement pay all
E reasonable and itemized fees, costs and expenses actually incurred by the City, including
Eadministrative costs and attorneys' and consultants' fees, in connection with any modification to
the TIF District Project Plan required as a result of the Project, the negotiation, preparation and
administration of this Agreement and all documents and agreements executed in connection
therewith. Following the first year of the Term of this Agreement, and so long as Developer is not
in default under the terms of this Agreement,Developer's obligation under this Section 8 shall be
limited to reimbursement of third party fees paid by the City in an amount not exceed Two
Thousand Five Hundred and No/100 Dollars ($2,500.00) per year. Developer shall also pay all
reasonable and itemized fees,costs and expenses actually incurred by the City,including attorneys'
and consultants' fees, in connection with the enforcement of its rights against the Developer under
the TIF District Project Plan or this Agreement, including without limitation, the enforcement of
such rights in any bankruptcy, reorganization or insolvency proceeding involving the Developer.
Developer will be billed for such costs and payment is due within 30 days of the date of invoice.
Developer's obligation to pay these costs is secured by the City's right of special assessment
pursuant to Section 11,below.
9. City's Right to Cure Default. In case of a failure by the Developer to procure or
maintain insurance, or to pay any fees, assessments, charges or taxes arising with respect to the
Project or to comply with the terms and conditions of this Agreement or any other document,
contract or agreement effecting the Project,the City shall have the right,but shall not be obligated,
to effect such insurance or pay such fees, assessments, charges or taxes or take such action as is
necessary to remedy the failure of the Corporation to comply with the documents, contracts or
agreements effecting the Project, and, in that event, the cost thereof shall be payable by the
Developer to the City.
10. Real Estate Taxes and Assessments. The Developer shall pay timely to the City
generally applicable property taxes assessed and levied by the City on the Property under
applicable property tax laws, rules, rates, regulations and ordinances in effect from time to time.
Nothing in this Agreement shall impair any statutory rights of the City with respect to the
assessment,levy,priority,collection,and/or enforcement of real estate property taxes. In addition,
the Developer agrees to pay timely to the City all special assessments that may be assessed or
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levied in connection with the Property under the applicable special assessment laws, rules,
regulations, ordinances and rates in effect at the time said special assessments are assessed or
levied.
11. Security for Developer's Obligations. The Developer's obligations under Section
8 shall be secured by the City's right of special assessment or by any other remedy available to the
City by statute. If the Developer fails to pay timely any City costs due under Section 8, the City
may,in addition to all other remedies available to it in law or equity,levy the amount of the overdue
obligation against the Property as a special assessment pursuant to Wis. Stat. §66.0701. In
connection therewith, the Developer: (i) acknowledges that the City has incurred costs for the
payment or reimbursement of the Project Costs; (ii) agrees that the amount of the special
assessment, if levied consistent with this Agreement, constitutes a proper exercise of the City's
authority to levy special assessments in accordance with Wis. Stat. §66.0701; (iii) agrees that the
allocation of the City's costs to the Property is reasonable and commensurate with the special
benefits provided to the Property; (iv) agrees that the amount being assessed in accordance with
this Agreement does not exceed the value of the benefits accruing to the Property from the City's
E' expenditures identified herein; (v)consents to the imposition and levy of such special assessments;
(vi)agrees that the approval of this Agreement by the Oshkosh Common Council shall be sufficient
to authorize the levy of special assessments in accordance herewith, and that no further procedural
steps need be taken by the City; (vii) waives all special assessment notices, hearings and appeals
provided by Wis. Stats. §66.0701 or §66.0703; and(viii) acknowledges that the City is relying on
the terms of this Agreement, and specifically the terms of this subsection, that such reliance is
reasonable, and that the City's payment of its obligations to the Developer under this Agreement
will be detrimental to the City if the provisions relating to special assessments are not enforced
and that a failure to enforce such agreements would be inequitable.
12. Reserved].
13. Indemnifications. The Developer hereby indemnifies, defends and holds the City
harmless from and against all loss, liability, damage and expense, including reasonable attorneys'
fees, suffered or incurred by the City to the extent caused by the following: (a) the failure of the
Developer or its contractors, subcontractors, agents, employees, or invitees to comply with any
environmental law,rule, regulation or ordinance, or any order of any regulatory or administrative
authority with respect thereto; (b) any release by the Developer or its contractors, subcontractors,
agents, employees or invitees of petroleum products or hazardous materials or hazardous
substances on,upon or into the Project;(c)any and all damages to natural resources or real property
or harm or injury to persons resulting or alleged to have resulted from any failure by the Developer
and/or its contractors, subcontractors and/or agents to comply with any law, rule, regulation or
ordinance or any release of petroleum products or hazardous materials or hazardous substances as
described in clauses(a)and(b)above; (d)claims arising on the Property under the Americans with
Disabilities Act, and any other laws, rules, regulations or ordinances; (e) claims for third parties
for injury to or death of any person on the Property;and(f)the failure of the Developer to maintain,
repair or replace as needed any portion of the Project.
The term"hazardous substances" means any flammable explosives, radioactive materials,
hazardous wastes, toxic substances, or related materials, including, without limitation, any
substances defined as or included in the definition of"hazardous substances," "hazardous waste,"
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"hazardous materials," or"toxic substances"under any applicable federal or state or local laws or
regulations.
14. Insurance. The Developer shall maintain the following insurance policies issued
by insurers with a rating of at least "A-" and in a financial size category of at 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) statutory worker's compensation insurance; and
(iv) automobile liability insurance with a combined single limit of$1,000,000.
Each insurance policy shall require the insurer to provide at least thirty (30) days prior
written notice to the City of any material change or cancellation of such policy.
15. Nondiscrimination. The Developer shall not use the Project in any manner to
permit discrimination or restriction on the basis of race, creed, ethnic origin or identity, color,
gender,religion,marital status, age,handicap or national origin, and the Developer shall construct
and operate the Project in compliance with all laws, rules, regulations and ordinances relating to
discrimination or any of the foregoing.
16. Property Tax Challenges and Exemptions. The Developer shall not cause or permit
the Property or any portion thereof to become tax exempt unless condemned by a governmental
entity. The Developer will place a restriction in any deed conveying all or any portion of the
Property prohibiting any use or ownership of the Property which would cause the Property or any
portion thereof to become tax exempt. If the Property nevertheless becomes tax exempt,
Developer,for its successors and assigns,hereby agrees that an annual payment in lieu of tax shall
be made by the then-owner of the Property. Such payment in lieu of tax shall be determined for
any given year that the Property is exempt from taxation by multiplying the Property's last assessed
value prior to becoming exempt by the mill rate for all taxing jurisdictions established for that tax
year for the TIF District,with such payment due and payable on or before December 31 of the year
in question.
17. Default. The occurrence of any one or more of the following events shall constitute
a default hereunder:
(a) The Developer or any successor shall fail to pay when due any Guaranty
Payment or other amount due from it under this Agreement; or
(b) Any representation or warranty made by the Developer or any successor in
this Agreement or any document delivered by the Developer or its successor pursuant to
this Agreement shall prove to have been false in a material way as of the time made or
given; or
(c) The Developer or any successor shall breach or fail to substantially perform
timely or observe timely any of its covenants or obligations under this Agreement, and
such failure shall continue for thirty(3 0)days following notice thereof from the City to the
Developer (or such longer period of time as is necessary to cure the default as long as the
Developer has commenced the cure of the default within the thirty (30) day period and is
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diligently pursuing to cure the default and as long as the default is cured not later than one
hundred eighty(180) days following notice thereof from the City); or
(d) The Project is not substantially completed on or before the Completion Date
(subject to matters of force majeure); or
(e) The Developer shall: (i)become insolvent or generally not pay,or be unable
to pay,or admit in writing its inability to pay,its debts as they mature;or(ii)make a general
assignment for the benefit of creditors or to an agent authorized to liquidate any substantial
amount of its assets; or(iii)become the subject of an order for relief within the meaning of
the United States Bankruptcy Code, or file a petition in bankruptcy, for reorganization or
to effect a plan or other arrangement with creditors; or (iv) have a petition or application
filed against it in bankruptcy or any similar proceeding, and such petition, application or
proceeding shall remain undismissed for a period of ninety (90) days or more, or the
Developer shall file an answer to such a petition or application, admitting material
allegations thereof; or (v) apply to a court for the appointment of a receiver or custodian
for any of its assets or properties or have a receiver or custodian appointed for any of its
assets or properties, with or without consent, and such receiver shall not be discharged
within ninety (90) days after its appointment; or (vi) adopt a plan of complete liquidation
of its assets.
18. Remedies. Upon the occurrence of any default, without further notice, demand or
action by any kind by the City,the City may,at its option,pursue any one or more of the following
remedies concurrently or successively:
(a) Cease all future payments of the City Contribution; or
(b) Pursue any or all of the rights and remedies available to the City at law
and/or in equity against the Developer and/or the Project.
Except as may be otherwise specifically set forth herein, no remedy herein conferred upon
the City is intended to be exclusive of any other remedy and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Agreement, and/or
available to the City under the TIF District Project Plan and any other covenants, restrictions,
documents or instruments governing the TIF District, and/or now or hereafter existing at law or in
equity. No failure or delay on the part of the City in exercising any right or remedy shall operate
as a waiver thereof nor shall any single or partial exercise of any right preclude other or further
exercise thereof or the exercise of any other right or remedy. Notwithstanding any of the foregoing
authorizations, the City shall have no duty or obligation whatsoever with respect to any of the
matters so authorized.
19. No Personal Liability. Under no circumstances shall any council member, official,
director, attorney, employee, or agent of a party have any personal liability arising out of this
Agreement, and no party shall seek or claim any such personal liability.
20. City Authorization. The execution of this Agreement by the City is authorized by
Common Council Resolution No. 16-398 dated July 26, 2016.
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21. Miscellaneous.
(a) Except as otherwise specifically set forth herein, the respective rights and
liabilities of the City and the Developer in this Agreement are not assignable or delegable,
in whole or in part, without the prior written consent of the other party. Provisions of this
Agreement shall inure to the benefit of and be binding upon the successors and assigns of
the parties.
(b) No waiver, amendment, or variation of the terms of this Agreement shall be
valid unless in writing and signed by the City and the Developer,and then only to the extent
specifically set forth in writing.
(c) All material applicable agreements, representations, warranties, covenants,
liabilities and obligations made in this Agreement and in any document delivered pursuant
to this Agreement shall remain effective during the Term of this Agreement.
(d) All communications or notices required or permitted by this Agreement
shall be in writing and shall be deemed to have been given: (i) upon delivery to an officer
or the person entitled to such notice, if hand delivered, or(ii)two business days following
deposit in the United States Mail, postage prepaid, or with a nationally recognized
overnight commercial carrier that will certify as to the date and time of delivery, air bill
prepaid, or(iii)upon transmission if by facsimile, any such communication or notice shall
be addressed as follows, unless and until any such party notifies the other in accordance
i
with this section of any change of address:
If to the City: City of Oshkosh
j City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI, 54903-1130
Attn: City Attorney
Facsimile No. (920) 236-5106
With a copy to: Godfrey &Kahn, S.C.
100 West Lawrence Street
Appleton, WI 54911
Attn: Michael J. Lokensgard
Facsimile No. (920) 830-3530
If to the Developer: 240 Algoma Blvd LLC
PO Box 1099
Oshkosh, WI 54903-1099
Attn: Eric Hoopman
eric@hoopman.co
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With a copy to: Chet Wesenberg
146 Algoma Blvd., Suite H
Oshkosh, WI 54901
Chet.Wesenberg@CWArchitect.net
(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.
(f) This Agreement is intended solely for the benefit of the Developer and the
City, and no third party(other than successors and permitted assigns) shall have any rights
E or interest in any provision of this Agreement, or as a result of any action or inaction of the
City in connection therewith. Without limiting the foregoing,no approvals given pursuant
to this Agreement by the Developer or the City, or any person acting on behalf of either of
them, shall be available for use by any contractor or other person in any dispute with the
construction of the Project.
(g) This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Wisconsin applicable to contracts made and
wholly performed within the State.
(h) This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but such counterparts shall together constitute but one in the
same Agreement. Facsimile signatures shall be deemed original signatures for all purposes
of this Agreement.
(i) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be in effect to the extent of such prohibition
or enforceability without invalidating the remaining provisions of this Agreement in such
jurisdiction or affecting the validity or enforcement of any provision in any other
jurisdiction.
0) Nothing contained in this Agreement or any other documents executed
pursuant to this Agreement shall be deemed or construed as creating a partnership or joint
venture between the City and the Developer or between the City and any other person, or
cause the City to be responsible in any way for the debts or obligations of the Developer
or any other person or cause the Developer to be responsible in any way for the debts or
obligations of the City or any other person. Each party represents,warrants and agrees,for
itself and its successors and assigns, not to make any assertion inconsistent with its
acknowledgement or with the acknowledgement and agreement contained in the preceding
sentence in the event of any action, suit or proceeding, at law or in equity, with respect to
the transactions which are the subject of this Agreement and this paragraph may be pleaded
and construed as a complete bar and estoppel against any assertion by or for a party and its
12
15615909.6
successors and permitted assigns, that is inconsistent with its acknowledgement and
agreement contained in the preceding sentence.
(k) Time is of the essence as to each and every obligation or agreement
contained in this Agreement.
(1) If any party is delayed or prevented from timely performing any act required
under this Agreement other than the payment of money,by reason of fire, earthquake,war,
terrorist act, flood, riot, strikes, labor disputes or shortages, government restrictions,
judicial order,public emergency,or other causes beyond the reasonable control of the party
obligated to perform, the performance of such act shall be excused for the period of such
delay and the time for the performance of any such act shall be extended for a period
equivalent to such delay.
(m) A memorandum of this Agreement may be recorded in the office of the
Register of Deeds of Winnebago County,Wisconsin, in lieu of the full Agreement,it being
understood by the parties that until Expiration Date,this Agreement will run with the land
and will be binding upon the Property. In the event that a separate storm water maintenance
agreement is not entered into by the parties and recorded with the Register of Deeds,then
Developer shall fully comply with the grading and drainage plan for the Property on file
with the City Department of Public Works and all applicable storm water codes. The City
shall have the authority to enter the property and resolve all grading and drainage issues at
Developer's expense including, without limitation, special charges for such work being
placed against the Property. This Agreement inures to the benefit of the City and its
successors and assigns.
(n) The headings to this Agreement are for reference only and are not intended
to modify any of the terms and conditions of this Agreement.
(o) Nothing contained in this Agreement is intended to or has the effect of
releasing the Developer from compliance with all applicable laws, rules, regulations and
ordinances in addition to compliance with all the terms,conditions and covenants contained
in this Agreement.
(p) This Agreement is the product of negotiation between the parties hereto and
no term,covenant or provision herein or the failure to include a term,covenant or provision
shall be construed against any party hereto solely on the basis that one party or the other
drafted this Agreement or any term, covenant or condition contained herein.
(q) Upon mutual consent of the parties to this Agreement, which consent any
party can withhold in its sole discretion, the parties can agree to submit disputes arising
under this Agreement to alternative dispute resolution.
(r) EACH PARTY TO THIS AGREEMENT HEREBY WAIVES TRIAL BY
JURY IN ANY ACTION,PROCEEDING,CLAIM, OR COUNTERCLAIM,WHETHER
CONTRACT OR TORT,AT LAW OR EQUITY, ARISING OUT OF OR IN ANY WAY
RELATED TO THIS AGREEMENT.
13
15615909.6
(s) All amounts not paid when due hereunder shall bear interest at the rate of
twelve percent (12%).
22. Other Approvals. In addition to any approvals required under this Agreement, the
Developer shall be required to obtain all approvals, consents, and licenses as may be required by
any governmental or non-governmental authority in connection with the Project, including,
without limitation, all building permits,Project Plan approvals, storm water approvals,and zoning
approvals. The Developer's compliance with the terms of this Agreement shall not relieve the
Developer from complying with all applicable federal, state and local laws, rules, regulations and
ordinances in connection with the Project and to the extent any governmental or non-governmental
entity imposes different or more restrictive conditions on the Developer or the Project,compliance
by the Developer with the terms of this Agreement shall not relieve the Developer from complying
with such different or more restrictive conditions. Likewise, any less restrictive conditions
imposed on the Developer or the Project by any governmental or non-governmental authority shall
not relieve the Developer or the Project from complying with all of the terms and conditions of
this Agreement.
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[SIGNATURE PAGES FOLLOW]
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15615909.6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
CITY OF OSHKOSH, WISCONSIN
By: �---
Mark A. Rohloff
Its: City Manager
By: (° �
Pamela R. Ubrig
Its: City Clerk
Approved as to form:
lwva�By.
ynn A. L son
Its: City Attorney
I hereby certify that the necessary provisions have been made to pay the liability which
will accrue under this Agreement.
'+' W.. ft X 8)nn
Trena Larson, Finance Director
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE]
15
15615909.6
STATE OF WISCONSIN )
SS
COUNTY OF WINNEBAGO )
Personally came before me this i�5,a. day oftV6A , 2017, the above-named Mark A.
Rohloff and Pamela R. Ubrig, to me known to be the City Manager and City Clerk of the City of
Oshkosh, Wisconsin and the person who executed the foregoing document and acknowledged the
same.
Notary Public, State of K)) Sc k—)
My commission: Ste`e w,,"
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15615909.6
240 ALGOMA BLVD LLC
By:
Name: CHE A. WESENBERG
Its: Member
By:
Nam :
j4gPMAN-�
Its: anagimber
STATE OF WISCONSIN )
SS
COUNTY OF WINNEBAGO )
On this day of , 2017 personally came before mew1� °
me known to be theV",(-1Wvv4tm (of 240 Algoma Blvd LLC, a Wisconsin limited liability
company, and the persons who ex cuted the foregoing instrument and acknowledged the same.
.'"' C-;2) L r��U,a k((A, K"s
otary Public, State of Wisconsin
My commission `
17
15615909.6
Exhibit A
Property Legal Description
ALL OF BEACH BUILDING CONDOMINIUM, A PART OF LOTS 13, 15, 17 AND 23 OF BLOCK
G OF LEACH'S MAP OF 1894, LOCATED IN THE SOUTHWEST Y4 OF THE NORTHWEST Y4
OF SECTION 24, TOWNSHIP 18 NORTH, RANGE 16 EAST, SEVENTH WARD, CITY OF
OSHKOSH, WINNEBAGO COUNTY, WISCONSIN BOUNDED AND DESCRIBED AS
FOLLOWS:
COMMENCING FROM THE WEST % CORNER OF SAID SECTION 24; THENCE
E N01°17'08"W, 1,010.65 FEET ALONG THE WEST LINE OF THE NORTHWEST %OF SAID
SECTION, THENCE N88°42'32"E, 34.00 FEET TO THE INTERSECTION OF THE EAST
RIGHT-OF-WAY LINE OF JACKSON STREET AND NORTH RIGHT-OF-WAY LINE OF
ALGOMA BOULEVARD; THENCE S54°36'37"E, 417.74 FEET ALONG THE NORTH RIGHT-
OF-WAY LINE OF ALGOMA BOULEVARD TO THE SOUTHWESTERLY CORNERS OF
BEACH BUILDING CONDOMINIUM AND LOT 15 OF BLOCK G OF LEACH'S MAP OF 1894
AND POINT OF BEGINNING; THENCE N27°08'56"E, 222.48 FEET; THENCE S61°48'46"E,
77.56 FEET; THENCE N28°41'02"E, 28.29 FEET; THENCE S61°44'56"E, 8.00 FEET; THENCE
N28015'04"E, 64.30 FEET TO THE SOUTHWESTERLY CORNER OF LOT 19 OF SAID
BLOCK G; THENCE S59°36'37"E, 98.50 FEET ALONG THE SOUTHERLY LINE OF SAID LOT
19 TO THE SOUTHEASTERLY CORNER OF SAID LOT 19; THENCE S34°24'38"W, 15.83
FEET ALONG THE WESTERLY LINE OF LOT 13 OF SAID BLOCK G; THENCE S58°07'30"E,
55.59 FEET; THENCE S47°12'10"E, 9.91 FEET TO A POINT ON THE NORTHERLY LINE OF
LOT 17 OF SAID BLOCK G; THENCE S59°34'46"E, 5.62 FEET ALONG THE NORTHERLY
LINE OF SAID LOT 17; THENCE S31°18'33"W, 88.20 FEET; THENCE N58041'27"W, 4.98
FEET; THENCE S31°18'33"W, 10.30 FEET; THENCE S58°41'27"E, 4.99 FEET; THENCE
31°18'33"W, 38.85 FEET; THENCE S58°36'28"E, 14.99 FEET; THENCE S32012'15"W, 182.49
FEET TO THE SOUTHEASTERLY CORNER OF SAID LOT 17, ALSO BEING THE
NORTHERLY RIGHT-OF-WAY LINE OF ALGOMA BOULEVARD; THENCE N54°36'37"W,
245.88 FEET ALONG SAID NORTHERLY RIGHT-OF-WAY LINE OF ALGOMA BOULEVARD
TO THE POINT OF BEGINNING. SAID AREA CONTAINS 73,455 SQUARE FEET OR 1.686
ACRES, MORE OR LESS.
15615909.6
Exhibit B
Proforma City Contribution Calculation
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15615909.6
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Exhibit C
Proforma IRR Calculation
15615909.6
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With TIF Without TIF
Initial Cash Outlay 1,295,450 1,295,450
Historic Tax Credits 998,015 998,015
HTC Present Value 763,482 763,482
Net Effective Cash 531,968 531,968
Net Cash Flow Reversion Total Net Cash Flow Reversion Total
Year 0 -531,968 -531,968 -531,968 -531,968
Year 1 -29,698 -29,698 -29,698 -29,698
Year 2 -21,487 -21,487 36,282 -36,282
Year 3 -17,736 -17,736 -32,806 -32,806
Year 4 -13,905 -13,905 -29,252 -29,252
Year 5 -9,992 -9,992 -25,620 -25,620
Year 6 -5,996 -5,996 -21,907 -21,907
Year 7 -1,915 .1,915 -18,112 -18,112 l
Year 8 2,253 2,253 -14,233 -14,233
Year 9 6,510 6,510 -10,268 .10,268
Year 10 10,856 849,760 860,617 -6,216 646,517 640,301
Yr 11 NOI 186,285 168,914
Terminal Cap Rate 8.55% 8.55%.
Gross Reversion 2,179,659 1,976,416
Mortgage Payoff 1,329,899 1,329,899
Net Reversion 849,760 646,517
10yr IRR=> 3.38% 10yr IRR=> -1.80%
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