HomeMy WebLinkAbout30. 18-143 MARCH 13, 2018 18-143 RESOLUTION
(CARRIED 6-1P LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE DEVELOPMENT AGREEMENT WITH OSHKOSH
CORPORATION FOR THE DEVELOPMENT OF A GLOBAL
HEADQUARTERS ON A PORTION OF LAKESHORE MUNICIPAL
GOLF COURSE
INITIATED BY: CITY ADMINISTRATION
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 an appropriate Developer's
Agreement with Oshkosh Corporation for the development of a Global Headquarters in
substantially the same form as attached hereto, any changes in the execution copy being
deemed approved by their signatures.
TO: Mayor and Members of the Common Council
FROM: Lynn A. Lorenson, City Attorney
DATE: March 8, 2018
RE: Approve Development Agreement with Oshkosh Corporation for the
Development of a Global Headquarters on a Portion of Lakeshore Municipal Golf
Course
BACKGROUND
By Resolution 17-534 adopted on November 8, 2017 the Council approved proposed terms and
conditions for the sale of a portion of Lakeshore Municipal Golf Course to Oshkosh Corporation
for the construction of a new global headquarters. A proposal was submitted with the assistance
of GO -EDC and Oshkosh Corporation accepted the City's proposal on November 22, 2017. A
Purchase and Sale Agreement was approved by Resolution 18-24 on January 9, 2018 and a TIF
District and Project Plan were adopted by Resolution 18-59 on January 23, 2018.
ANALYSIS
State statute requires municipalities to enter into a development agreement for the purpose of
making cash grants to owners, lessees or developers of land located within a TIF district. The
TIF Project Plan provides for two types of cash grants to be given to Oshkosh Corporation in
connection with the development of a Global Headquarters Facility on the Property, a grant of
six million dollars ($6,000,000.00) referred to in the Plan and Agreement as the City Contribution
and an Incentive Payment in an amount equal to the amount of Tax Increment actually
generated from the real Property and Headquarters Project annually in excess of five hundred
thousand dollars ($500,000.00). Both of the grants are in the form of paygo grants payable from
tax increment generated each year of the TIF.
The draft agreement is attached. The Agreement follows the general format used with other
City TIF projects and is consistent with the direction of Council. Some of the provisions specific
to this agreement include:
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
• Oshkosh Corporation will construct a Global Headquarters Facility on a portion of the
Lakeshore Golf Course property
• The construction of the Headquarters Facility will be substantially complete on or before
December 31, 2019. There are provisions for a day -for -day extension of this completion
date in the event that the project is held up by a delay in closing on the property or by
delay in the completion of the City projects associated with the development
• Oshkosh Corporation will cooperate with the City in the application and reporting
requirements for grants that the City may apply for in connection with the City projects
• Oshkosh Corporation will reimburse the City for the costs of preservation or removal of
the public memorials and commemorative plantings on the portion of the golf course site
to be purchased by Oshkosh Corporation in an amount up to $10,000. The Parks
Department estimates the cost of removal to be approximately $5,000 and believes that it
is in both parties' best interest for the City to perform this work with reimbursement by
Oshkosh Corporation.
• Oshkosh Corporation will maintain landscaping in the area between their new property
line and the City's new Riverwalk Trail to be installed to the north/northwest of the
property
• Oshkosh Corporation will incorporate sustainable designs into the facility
• Oshkosh Corporation will receive a cash grant of $6,000,000.00 payable from the first
$500,000.00 of tax increment generated from the property for 12 to 13 years (the first and
last year of payments may be partial payments based upon the property valuation)
• Beginning in year 4 of the TIF (2021) Oshkosh Corporation guarantees a minimum
increment from the property of $500,000.00
• Oshkosh Corporation will receive an incentive payment for additional value created by
the initial project for any tax increment in excess of $500,000 per year for years 3-20 of the
TIF (2020-2037)
• There will be no paygo payments for additions, new or further construction or
improvements to the property after the December 31, 2019 completion date shall remain
with the City of Oshkosh
• The City will construct public improvements as provided in the TIF 34 Project Plan
FISCAL IMPACT
The Development Agreement provides for payment of a City Contribution in the amount of six
million dollars ($6,000,000.00) over an approximately 12 year period of the TIF together with an
Incentive Payment for tax increment generated by the initial project in excess of five hundred
thousand dollars ($500,000.00) per year for years 3-20 of the TIF (2020-2037). Both the City
Contribution and the Incentive Payment are payable solely from tax increment and are not
general obligations of the City.
The development of the property will have fiscal impacts that have been identified and included
in previous information that has been provided to the Council with Resolution 17-535 approving
a funding plan for the Oshkosh Development Proposal; as well as in the TIF plan for this
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
development which Council approved at the January 23, 2018 meeting. The 2018 CIP included
the City Projects related to this TIF and required under the terms of the Development Agreement
in the amount of $7,225,700.00, these projects are referenced in Resolution 17-588 previously
adopted by the Council.
RECOMMENDATION
Staff recommends approval of the Development Agreement.
Respectfully Submitted,
Ann. Lorenson
City Attorney
Approved:
k A. Rohloff
City Manager
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
DEVELOPMENT AGREEMENT
This Development Agreement (this "Agreement") is made as of the day of March
2018, (the "Effective Date") by and between the CITY OF OSHKOSH, WISCONSIN, a
Wisconsin municipal corporation (the "City"), and OSHKOSH CORPORATION, a
Wisconsin corporation (the "Developer" or "Corporation").
RECITALS
A. The Corporation currently has facilities located at various locations and in various
buildings throughout the City of Oshkosh and surrounding municipalities in northeast
Wisconsin and wishes to construct a new consolidated global headquarters facility
("Global Headquarters Facility").
B. The Corporation wishes to locate its Global Headquarters Facility in the City of
Oshkosh, Wisconsin, on a parcel of land being a portion of Lakeshore Golf Course
located at 2175 Punhoqua Street and legally described on the attached Exhibit A (the
"Property").
C. City and the Corporation have previously entered into an Agreement for Purchase and
Sale of Property dated January 10, 2018 ("Purchase Agreement"), which is attached
hereto as Exhibit B and the parties agree to carry forward all terms from that Purchase
Agreement.
D. The Corporation will construct a Global Headquarters Facility which will include at
least 150,000 square feet of Class A office space and related support spaces on the
Property in accordance with applicable zoning laws (the "Headquarters Project").
E. In connection with the construction of the Headquarters Project, the Corporation
expects to retain up to four hundred fifty (450) jobs and to add up to an additional forty-
five (45) jobs, and local suppliers and other businesses that contract with the
Corporation will indirectly benefit from the Corporation's construction of the
headquarters facility.
F. Pursuant to Wis. Stats. §66.1105 (the "Tax Increment Law"), the City has (i) created
Tax Increment District No. 34 (Oshkosh Corporation Global Headquarters) (the "Tax
Incremental District" or "TID"), and (ii) approved a project plan for the redevelopment
of the Tax Incremental District (the "District Project Plan").
G. The Property is located within the Tax Incremental District.
H. The Corporation desires to construct and operate the Headquarters Project in
accordance with the provisions of this Agreement and the TIF District Project Plan.
I. The Corporation's ability to develop the Headquarters Project is contingent upon the
City providing financial and other assistance to the Corporation on the terms set forth
in this Agreement. The City shall provide assistance through site improvements and
the construction of public infrastructure to support the location and construction of the
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Headquarters Project as provided in the District Project Plan; provision of a grant to
the Corporation totaling $6,000,000 in the form of "paygo" assistance from the TID;
and payment of an incentive payment equal to the amount of tax increment generated
by the Headquarters Project in excess of $500,000.00 per year for the Incentive
Payment Period (collectively, the "Project Incentives").
J. The City finds it to be in the public interest to utilize tax incremental financing to assist
the Corporation in undertaking the Headquarters Project, consistent with the terms
and conditions of this Agreement.
K. Funds used to provide the Corporation with the Project Incentives for the
Headquarters Project Costs shall be raised solely from property tax income generated
from the Headquarters Project in the Tax Incremental District (the "TIF Funds").
L. The City finds that construction of the Headquarters Project and the fulfillment of the
terms and conditions of this Development Agreement are in the vital and best interests
of the City and its residents and serve a public purpose by enabling and assisting the
promotion of industrial development, enhancing the City's tax base, promoting
employment opportunities, and encouraging the development of nearby parcels.
M. The City and the Corporation enter into this Agreement to set forth their respective
duties and obligations with respect to the TIF District, the Project Incentives, and the
construction, installation, furnishing, and equipping of the Headquarters Project on the
Property.
N. The City and the Corporation acknowledge that the City Project and the Headquarters
Project would not be undertaken by the City and the Corporation, and would not be
economically feasible without the tax incremental financing assistance and benefits
provided for in this Agreement.
NOW, THEREFORE, in consideration of the recitals and mutual agreements herein set
forth, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Corporation and the City agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the following
meanings:
(a) "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 an entity
by ownership of voting securities, contractual arrangements, or otherwise. An
Affiliate includes, but is not limited to, an entity with which Corporation merges or
into which Corporation consolidates, or which acquires all or substantially all of the
common stock or assets of the Corporation.
(b) "Agreement" means this document and all of its component parts and exhibits.
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(c) "Base Value Taxes" means the real property taxes payable with respect to the
Property for calendar year 2018.
(d) "City" means the City of Oshkosh, Wisconsin, a Wisconsin municipal corporation,
its successors and assigns.
(e) "City Contribution" means payments to be provided by the City to the Corporation
from future Tax Increments in an amount not to exceed six million dollars
($6,000,000.00).
(f) "City MRO" means the Municipal Revenue Obligations issued by the City to the
Developer as evidence of the City's limited obligations to pay the City Contribution
and Incentive Payment as described in Section IV. B. and 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 solely from
Tax Increment and the Minimum Required Increment, if applicable, subject to
contingencies and to the extent provided in this Agreement and the City MRO.
(g) "City Project" means site improvements and public infrastructure constructed
pursuant to the term sheet and funding plan approved by Council on November 8,
2017 by Resolutions 17-534 and 17-535, and constructed under the District Project
Plan as approved by the City's Common Council on January 23, 2018 and by the
Joint Review Board on January 30, 2018 and pursuant to the City's Capital
Improvements Budget adopted by Resolution 17-588 and Section IV. A. below.
(h) "City Project Costs" means project costs incurred by the City under the District
Project Plan, including any administrative, implementation or other expenses
permitted by law and the District Project Plan, to construct the public improvements
described in Section IV. A., below, and otherwise implement the TIF District Project
Plan.
(i) "Completion Date" means December 31, 2019 if closing on the purchase of the
Property occurs on or before May 15, 2018, and the City Project progresses in
accordance with the applicable Project Milestone (as defined in Section IV and
Exhibit F to this Agreement) and is substantially completed as such term is defined
in the city's standard terms and project specifications on or before October 31,
2019. If any of these events shall not occur by the date specified, the completion
date shall be automatically extended on a day -for -day basis from December 31,
2019.
Q) "Corporation" or "Developer" means Oshkosh Corporation, a Wisconsin
corporation, its successors and assigns.
(k) "Default" means the occurrence of any one or more of the events described in
Section V.. below.
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(1) "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.
(m)" Headquarters Project" means the construction, installation, furnishing and
equipping of a global headquarters facility including at least 150,000 square feet
of Class A office and related support spaces; the improvement of parking lots on
the Property; the acquisition and installation of equipment for use therein; the
construction of private roads and trail connections; and the construction and
installation of all other private improvements for the development of the
Headquarters Project in accordance with the Headquarters Project Plans or as
may be required by any applicable zoning law, rule, regulation, or ordinance and
actually constructed on or before the Completion Date. "Headquarters Project"
shall not include any new or further construction, additions or other improvements
to or on the Property constructed on or after the Completion Date.
(n) "Headquarters Project Costs" means project costs incurred by the Corporation
under the Headquarters Project Plans to construct the Headquarters Project and
otherwise implement the Headquarters Project Plan.
(o) "Headquarters Project Plans" means plans and specifications for the Headquarters
Project as approved by the City as part of the City's usual development plan and
site plan approval process including, without limitation, all improvements located
or to be located on the Property, the footprint of the building(s) and the square
footage thereof, all easements, pathways, exterior boundary lines, walkways,
parking and circulation areas, adjoining public streets and alleys, utilities, exits and
entrances, signage, curbs, gutters, sidewalks, landscaping, all materials to be used
in construction, all interior and exterior finishes, building sections and elevations,
and a narrative description of all structural systems, mechanical systems, electrical
systems and any specialty systems.
(p) "Incentive Payment" means payments to be provided by the City to the Corporation
from future Tax Increments in an amount equal to the amount of Tax Increment
actually generated from the real Property and Headquarters Project annually in
excess of five hundred thousand dollars ($500,000.00) for the Incentive Payment
Period as set forth in Section IV. C. of this Agreement.
(q) "Incentive Payment Period" means years 3-20 (payments to be made in years
2020-2037) of the Tax Incremental Finance District.
(r) "Minimum Project Value" means the minimum assessed value required to
generate the Minimum Required Increment; as estimated in the TIF District Project
Plan this amount would be nineteen million eight thousand one hundred thirty-two
dollars ($19,008,132).
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(s) "Minimum Required Increment" means five hundred thousand dollars
($500,000.00) per year.
(t) "Payment Date" means each November 1st.
(u) "Property" means the parcel of land upon which the headquarters facility is located,
as legally described on Exhibit A.
(v)"Tax Increment" shall have the meaning set forth in Wis. Stat. § 66.1105 (2) (i).
(w)"Term" means the period of time commencing on the Closing Date and terminating
on the Termination Date.
(x) "Termination Date" shall mean the earlier of (i) the date on which the TID is
terminated under Wis. Stat. §66.1105, or (ii) the date of termination of the District
under the provisions of Article V of this Agreement.
(y)"TIF District" or "District" means Oshkosh Tax Incremental District No. 34 (Oshkosh
Corporation Global Headquarters).
(z) "TIF District Project Costs" or "District Project Costs" means the total costs of
construction, installation, furnishing, and equipping of the Headquarters Project
and City Project as identified in the TIF District Project Plan, 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 or indirect costs of development of the
Headquarters Project and the City Project.
(aa)"TIF District Project Plan", "District Project Plan" or "TIF Project Plan" means the
Project Plan for Tax Increment District No. 34 (Oshkosh Corporation Global
Headquarters) as approved by the City's Common Council on January 23, 2018
and by the Joint Review Board on January 30, 2018, as the same may be amended
from time to time.
II. PROJECT OVERVIEW. The Corporation will construct the Headquarters Project on
the Property in accordance with the Headquarters Project Plans. To assist the
Corporation with the Headquarters Project, the City will provide assistance through site
improvements and the construction of public infrastructure to support,the location and
construction of the Headquarters Project and will provide to the Corporation the Project
Incentives as provided in Article IV of this Agreement.
III. DEVELOPER'S OBLIGATIONS.
A. Development of the Project. Corporation shall construct the Headquarters Project,
its Global Headquarters Facility including at least 150,000 square feet of Class A
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office space and related support spaces, on the Property in accordance with all
applicable zoning laws.
B. Headquarters Project Construction. Corporation shall commence construction of
the Headquarters Project within thirty (30) days following Closing on the Property.
Once commenced, Corporation shall diligently pursue completion of construction
of the Headquarters Project in accordance with applicable City ordinances and
City -approved Headquarters Project Plans so that in any case construction shall
be substantially completed by the Completion Date.
C. Costs and Expenses. Corporation shall be responsible for all Headquarters
Project Costs related to the construction of the Headquarters Project on the
Property and any other work to be performed by the Corporation under this
Agreement, including all engineering, inspections, materials and labor.
Corporation shall be responsible for payment of all City fees including building
permit fees, zoning and sign permit fees, electrical and plumbing fees for the
Headquarters Project.
D. Assistance with City Grant Requirements. The Parties anticipate that the City will
apply for certain.grants in connection with TIF Projects within and adjacent to the
District. Corporation shall cooperate with the City, providing such information as
is reasonably necessary for the City to apply for and maintain such grants,
including without limitation the provision of employment information in such form
and detail as may be required by the respective granting authority.
E. Preservation of Memorials and Commemorative Plantings. The City shall move or
replace any memorials or other commemorative plantings upon the Property to
adjacent public lands prior to Closing. Upon completion, the City shall invoice
Corporation and Corporation shall reimburse the City for the actual, reasonable
costs of movement or replacement of the trees and plantings, up to a maximum
reimbursement amount of Ten Thousand Dollars ($10,000.00).
F. Maintenance of Adjacent Public Lands. Corporation shall maintain all trails,
landscaping and maintenance on the Property and landscaping on adjacent City
property between the Property and up to, but not including, the public trail located
along the shoreline, generally N/NW of the Property and as shown on attached
Exhibit E, for the life of the TID. Parties agree to enter into a separate maintenance
agreement to accomplish such purpose.
G. Real Estate Taxes and Assessments/ Minimum Increment Guaranty. The
Corporation 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 Corporation agrees to pay timely to the City all special
assessments that may be assessed or levied in connection with the Property under
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the applicable special assessment laws, rules, regulations, ordinances and rates
in effect at the time said special assessments may be invoiced.
Corporation shall not be charged any special assessments for City Projects
completed as part of the TIF District Project Plan for improvements constructed in
2018-19.
Minimum Increment Guaranty. For property tax years commencing in 2021 (year
4 of the TID) and continuing through the Termination Date, Corporation and its
successors and assigns shall pay property taxes in an amount of not less than the
Minimum Required Increment. For any tax year during such period in which the
property taxes paid by the Corporation are less than the Minimum Required
Increment, the Corporation covenants and agrees to make a payment in lieu of
taxes to the City in an amount equal to the shortfall between the Minimum Required
Increment and the amount of property taxes actually paid by the Corporation. Said
payment shall be due with the Corporation's final installment payment of property
taxes each year. Exhibit C attached to this Agreement is an estimate of the Tax
Increment for the TIF District and the projected expenditures from the TIF Funds
in accordance with the terms of the TIF District Project Plan. Exhibit C is an
estimate only based upon the parties' best information at the date of this
Agreement; City shall review and update Exhibit C upon completion of the
Headquarters Project and periodically thereafter and provide updated copies of
Exhibit C to Corporation at the address provided in Section VIII. I. of this
Agreement.
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 consent may be withheld in the
City's sole and absolute discretion. The Corporation further agrees that during the
life of the TO it 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. This Restrictive
covenant shall automatically terminate upon the Termination of the District.
The Corporation's obligations under this Section shall be secured by the City's
right of special assessment or by any other remedy available to the City by statute.
If the Corporation fails to pay timely any payment due under this Section, 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 Corporation: (i) acknowledges
that the City has incurred costs in connection with TIF District Project Plans and
City Project Costs thereunder; (ii) agrees that the amount of the special
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assessment, if levied is consistent with this Agreement and 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 Project 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 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. Stat. §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 Corporation 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.
H. 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 Headquarters Project.
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 Headquarters Project and Property and to act reasonably and
expeditiously and in cooperation with the Developer in connection therewith; it
being understood and agreed that this provision is not intended to limit the rights
of the City as more particularly set forth above or in Article IV, below.
I. Liability/Damage/Insurance/Indemnification.
Insurance. The Corporation 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 Headquarters Project with coverage
limits equal to the full replacement cost of the building and contents; (ii) commercial
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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.
The event of fire, damage, or any other casualty to any part of the Headquarters
Project shall not operate to release the Corporation from its liabilities and
obligations under this Agreement.
Indemnification. The Corporation hereby indemnifies, defends and holds the City
harmless from any and all liability, including claims, demands, losses, costs,
damages, and expenses of every kind and description (including death), or
damages to person or property, including reasonable attorneys' fees, suffered or
incurred by the City to the extent caused by the following: (a) the acts or omission
of the Corporation (or its officers, employees, agents, suppliers, or subcontractors
while acting within the scope of their employment or service to Corporation) in
connection with this Agreement; (b) the failure of the Corporation or its contractors,
subcontractors, agents, employees, or invitees to comply with any law, rule,
regulation or ordinance, or any order of any regulatory or administrative authority
in connection with this Agreement (including without limitation, any claims arising
with respect to the Property and/or the Headquarters Project under the Americans
with Disabilities Act or as a result of any release of any of petroleum products or
hazardous materials or hazardous substances on, upon or into the Property
including any and all damages to natural resources or real property or harm or
injury to persons resulting or alleged to have resulted therefrom); and (c) failure of
the Corporation to maintain, repair or replace as needed any portion of the
Headquarters Project. This indemnity shall not apply against any claims to the
extent arising from the City's willful misconduct, negligence or other willful acts or
bad faith.
J. Representations, Warranties and Covenants. The Corporation represents and
warrants to the City as follows:
1. The Corporation is a corporation duly formed and validly existing under the
laws of the State of Wisconsin and has the power and all necessary licenses,
permits, and franchises to own its assets and properties and to carry on its
business.
2. The Corporation is duly licensed or qualified to do business and in good
standing 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.
3. The execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate action of the Corporation and constitute
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the valid and binding obligations of the Corporation 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.
4. The execution, delivery, and performance of the Corporation's obligations
pursuant to this Agreement will not violate or conflict with the Corporation's
Articles of Incorporation or Bylaws or any indenture, instrument or agreement
by which the Corporation is bound, nor will the execution, delivery or
performance of the Corporation's obligations pursuant to this Agreement
violate or conflict with any law applicable to the Corporation or to the
Headquarters Project.
5. There is, as of the Effective Date of this Agreement, no litigation or proceeding
pending or against the Corporation or the Headquarters Project, or, to the
best of the Corporation's knowledge, threatening the Corporation or the
Headquarters Project, that is reasonably likely to have a material adverse
effect on the Headquarters Project or the Corporation or the enforceability of
this Agreement, the ability of the Corporation to complete the Headquarters
Project or the ability of the Corporation to perform its obligations under this
Agreement.
6. To the best of the Corporation's knowledge as of the Effective Date of this
Agreement, 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
Corporation 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
Corporation is party or obligor which is material to Corporation's performance
of its obligations under this Agreement.
7. The Corporation shall pay for all work performed and materials furnished for
the Headquarters Project as and when due.
8. On or before the Completion Date, the Headquarters Project shall be
substantially completed (subject to matters of force majeure), with a
certificate of occupancy issued, and in all other respects be ready for
occupancy and use by the Corporation.
9. Sustainable Design Principles. The Corporation shall cause the Headquarters
Project Planslo incorporate sustainable design principles, which may include
the use of low VOC materials (paints, adhesives), daylight harvesting, water
conserving (low -flow) plumbing fixtures, enhanced HVAC system controls, on
site bike storage and other elements which are intended to increase energy
efficiency and indoor workspace quality and/or decrease environmental
impacts.
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10. The Corporation shall conform and comply with, and will cause the
Headquarters 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, all environmental laws, rules, regulations, and ordinances.
11. The Corporation shall cause the Headquarters Project to be constructed in a
good and workmanlike manner and substantially in accordance with the
Headquarters Project Plans and will promptly correct any defects, structural
or otherwise, in any construction or deviations from the Headquarters Project
Plans. Construction of the Headquarters Project shall be completed free of
all liens and encumbrances except for those liens and encumbrances
permitted by this Agreement.
12. Except as permitted below, the Corporation shall not, without the prior written
consent of the City: (i) approve any change or modification in the
Headquarters Project by change order or otherwise that would cause the
taxable value of the Headquarters Project to be less than the Minimum Project
Value, or (ii) modify or amend any agreement affecting the Headquarters
Project in a manner which would cause the agreement to be materially
inconsistent with this Agreement.
13. The Corporation shall permit the City and the City's construction consultant
or inspector, at all reasonable times, to inspect the Headquarters Project and
all matters relating to the development thereof. The City assumes no
obligation to the Corporation for the sufficiency or adequacy of such
inspections, it being acknowledged that such inspections are made for the
sole and separate benefit of the City. The fact that the City may make
inspections shall in no way relieve the Corporation from its duty to
independently ascertain that the construction of the Headquarters Project is
being completed substantially in accordance with the Headquarters Project
Plans.
14. The Corporation shall pay or cause to be paid prior to delinquency all federal,
state and local taxes in connection with the Headquarters Project.
15. The Corporation 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 Tax Incremental District and with all laws,
rules, regulations and ordinances generally applicable to tax increment
districts that are applicable to the Project.
16. The Corporation shall have in effect at all times, all permits, approvals and
licenses that may be required by any governmental authority or
Page 11 of 23
nongovernmental entity in connection with the development, construction,
management and operation of the Headquarters Project.
17. The Corporation, at its cost and expense, shall operate, maintain, repair and
replace (including without limitation, replacements and repairs of a capital
nature) all elements of the Headquarters Project. The Corporation'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 any elements or systems of
the Headquarters Project as are necessary in order to maintain the
Headquarters Project in a manner to maintain the TIF value.
18. The Corporation will not, without the City's consent, initiate any change in the
zoning classification of all or any portion of the Property.
19. Nondiscrimination. The Corporation shall not use the Headquarters Project
or Property 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 Corporation shall construct and
operate the Headquarters Project in compliance with all laws, rules,
regulations and ordinances relating to discrimination or any of the foregoing.
20. The Corporation shall maintain its global headquarters facility on the Property
for the duration of the TID.
IV. CITY OBLIGATIONS.
A. City Improvements. The City shall construct the City Project in accordance with
the TIF District Project Plan and the applicable deadlines set forth in Exhibit F
attached hereto (each such deadline, a "Project Milestone"), which City Project
generally consists of: a traffic impact analysis, site preparation work including
archeological assessment and remediation, street improvements, water and
sanitary sewer system improvements, storm water management improvements,
demolition of the existing Lakeshore clubhouse, natural gas and electric installation
within new right-of-way necessary to serve the Property, and construction of a
riverwalk trail.
B. City Contribution. Subject to all the terms and conditions of this Agreement and
applicable law, the City will provide payments to the Corporation solely from future
Tax Increments to assist with the Corporation's Headquarters Project Costs in the
total aggregate principal amount of six million dollars ($6,000,000.00). The City's
Contribution payments to the Corporation shall not exceed six million dollars
($6,000,000.00). City's anticipated contributions are identified in Exhibit C to this
Agreement. Exhibit C attached to this Agreement is an estimate of the Tax
Increment for the TIF District and the projected expenditures from the TIF Funds
in accordance with the terms of the TIF District Project Plan. Exhibit C is an
Page 12 of 23
estimate only based upon the parties' best information at the date of this
Agreement; City shall review and update Exhibit C upon completion of the
Headquarters Project and periodically thereafter and provide updated copies of
Exhibit C to Corporation at the address provided in Section VIII. I. of this
Agreement.
As the sole source of payment for the City Contribution, the City agrees to pay the
Corporation the first five hundred thousand dollars ($500,000.00) of the Tax
Increment attributable to the Headquarters Project and land value based upon
taxes actually levied and collected (and upon the Minimum Required Increment if
applicable) until the City Contribution is paid in full or through the Termination Date,
whichever occurs first. Payments under this Agreement shall be made on
Payment Dates solely from the Tax Increments (and Minimum Required
Increment, if applicable) attributable to the Headquarters Project and land value
actually received by the City by each Payment Date. In no event shall the City's
payment to the Corporation exceed the total amount received by the City for the
payment year attributable to the Tax Increment actually generated by the
Headquarters Property and land value and/or Minimum Required Increment.
Payments under this Agreement shall be due in annual installments beginning on
the Payment Date of the calendar year following the first tax year in which positive
Tax Increment is allocated to the City and continuing each Payment Date
thereafter until the City Contribution is paid in full or the Termination Date,
whichever is earlier.
The City Contribution, as evidenced by this Agreement, shall be a special and
limited obligation of the City and not a general obligation.
The Corporation acknowledges that as a result of the special and limited nature of
the City's obligation to pay the City Contribution, the Corporation's recovery of the
City Contribution depends on various factors, including, but not limited to, future
mill rates, changes in assessed value of the Property, the failure of the Property to
generate Tax Increments at the rate expected by the Corporation, changes in the
Tax Increment Law, and other factors beyond the City's and/or the Corporation's
control.
The City covenants to the Corporation that, (i) City shall not use the Tax Increment
from the Property for any purpose other than to pay the City Contribution, the
Incentive Payment, and/or City Project Costs as defined within the TIF District
Project Plan.
C. Incentive Payments. Subject to all the terms and conditions of this Agreement and
applicable law, the City will provide Incentive Payments to the Corporation solely
from future Tax Increments in an amount equal to the amount of Tax Increment
actually generated from the land value and the Headquarters Project annually in
excess of five hundred thousand dollars ($500,000.00) during the Incentive
Payment Period. City shall review and update Exhibit C upon completion of the
Headquarters Project and periodically thereafter to identify anticipated Incentive
Page 13 of 23
Payments and provide updated copies of Exhibit C to Corporation at the address
provided in Section VIII. I. of this Agreement.
As the sole source of payment for the Incentive Payment, the City agrees to pay
the Corporation one hundred percent (100 %) of the Tax Increment in excess of
five hundred thousand dollars ($500,000.00) attributable to the land value and the
Headquarters Project during the Incentive Payment Period. Payments under this
Agreement shall be made on Payment Dates solely from the Tax Increments
attributable to the land value and Headquarters Project actually received by the
City by each Payment Date. In no event shall the City's payment to the Corporation
exceed the total amount received by the City for the payment year attributable to
the Tax Increment actually generated by the land value and Headquarters Project.
Incentive Payments under this Agreement shall be due in annual installments
beginning on the Payment Date 2020 and continuing each Payment Date
thereafter during the Incentive Payment Period.
The Incentive Payment, as evidenced by this Agreement, shall be a special and
limited obligation of the City and not a general obligation.
The Corporation acknowledges that as a result of the special and limited nature of
the City's obligation to pay the Incentive Payment, payment to the Corporation of
the Incentive Payment depends on various factors, including, but not limited to,
future mill rates, changes in assessed value of the Property, the failure of the
Property to generate Tax Increments at the rate expected by the Corporation,
changes in the Tax Increment Law, and other factors beyond the City's and/or the
Corporation's control.
D. 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
and Incentive Payments) are conditioned upon the satisfaction of each and every
of the following conditions:
On or before the date of this Agreement, the Corporation 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 Corporation
are authorized to do so, that the Corporation has duly authorized entry into this
Agreement, and other matters as are reasonably requested by the City.
2. On or before the date of this Agreement, the Corporation shall have provided
the City with (i) certified copies of its Articles of Incorporation and Bylaws and
(ii) a current Certificate of Status issued by the Wisconsin Department of
Financial Institutions.
3. On or before the date of this Agreement, the Corporation, at its sole cost, shall
provide the City with the Headquarters Project Plans, which Headquarters
Project Plans must be reasonably acceptable in all respects to the City.
Page 14 of 23
4. On the date of this Agreement, 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.
5. As required by Wis. Stat. § 66.1105 (2) (f) 2. d., the City shall send a copy of
this Agreement to the appropriate Joint Review Board or, if that Joint Review
Board has been dissolved, shall retain a copy of this Agreement in the official
records for the TIF District.
Unless all conditions contained in this Section 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 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 party.
V. TERMINATION: EVENT OF DEFAULT.
A. Event of Default. An "Event of Default" is any of the following:
1. Subject to the terms of this Agreement, the Developer fails to construct or fails
to substantially complete the Headquarters Project consistent with Article III.,
above by the Completion Date; or
2. Any representation or warranty made by the Corporation or any successor in
this Agreement or any document delivered by the Corporation 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
3. The Corporation or any successor shall materially breach or fail to substantially
perform or observe its covenant under Section III.J. 20, above.
4. The Corporation or any successor shall materially breach or fail to substantially
perform timely or observe timely any of its material covenants or obligations
under this Agreement (other than its covenant under Section III. J. 20, above),
and such failure shall continue for thirty (30) days following notice thereof from
the City to the Corporation (or such longer period of time as is necessary to
cure the default as long as the Corporation has commenced the cure of the
default within the thirty (30) day period and is diligently pursuing to cure the
default and as long as the default is cured not later than one hundred eighty
(180) days following notice thereof from the City); or
5. The Corporation 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 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
Page 15 of 23
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 Corporation 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. Or
6. All or any portion of the Property becomes tax exempt.
B. City Options upon Event of Default. Whenever an Event of Default occurs under
Section A., above, the City may take one or more of the following actions, in the
City's sole and absolute discretion:
1. Remedies. Upon the occurrence of any default (beyond any applicable notice
and cure period), 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 and/or Incentive
Payment, and/or
b. Pursue any or all of the rights and remedies available to the City at
law and/or in equity against the Corporation and/or the Property.
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.
2. Delay or Failure to Pursue Remedy. 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.
Page 16 of 23
No disbursement of any portion of the City Contribution or Incentive Payment
shall preclude the City from declaring a default hereunder and pursuing its
remedies hereunder in the event the Corporation fails to fulfill its obligations
hereunder or cure any such default.
3. 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.
4. Compensation for Costs of Breach. Whenever there is an Event of Default by
Corporation. 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 Corporation contained in this Agreement, Corporation shall, on
demand thereof, pay to the City the reasonable fees of such attorneys and such
other reasonable expenses incurred by the City.
VI. 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
Corporation under this Agreement, and the City and the Corporation 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 Corporation, if:
A. The Wisconsin Department of Revenue fails to certify all or any portion of the
creation of the District or the TIF District Project Plan ("Non -Certification");
provided, however, the City shall first make all reasonable efforts in good faith to
cure such Non -Certification; or
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.
VII. ASSIGNMENTS.
Corporation 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 Corporation's obligations under this
Page 17 of 23
Agreement and the Corporation provides the City with timely written notice and a copy of
such fully executed assumption. Otherwise, any assignment or transfer of Corporation'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 Corporation'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 Corporation 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.
VIII. 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. City Authorization. The execution of this Agreement by the City is authorized by
Resolution No. 18- of the City's Common Council dated March 13, 2018.
C. 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.
D. 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.
E. 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.
F. 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:
Page 18 of 23
City of Oshkosh
City Manager
215 Church Avenue
Post Office Box 1130
Oshkosh, WI 54903-1130
With a Copy to:
City Attorney
City of Oshkosh
215 Church Avenue
Post Office Box 1130
Oshkosh, WI 54903-1130
To Corporation:
Oshkosh Corporation
Attn: Jason Havlik
2307 Oregon Street
Oshkosh, WI 54952
Email: jhavlik@oshkoshcorp.com
With a Copy to:
Oshkosh Corporation
Heather Kelly
2307 Oregon Street
Oshkosh, WI 54952
Email: hkelly@oshkoshcorp.com
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).
G. 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.
H. Law Applicable. This Agreement shall be construed in accordance with the laws
of the State of Wisconsin.
Page 19 of 23
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.
I. Public Records. Corporation acknowledges that documents in the custody of the
City are public records that may be required to be made available under the open
records laws, and the City acknowledges that the Corporation may have business
reasons to keep certain of its documents from becoming public records. As an
alternative to sending a document to the City, the Corporation may ask, and the
City may agree, to review a document that remains in the custody of the
Corporation, its agent, or another nongovernmental entity. The City and the
Corporation pledge to try to resolve any requests made under this section, giving
due weight to the policy of the access to public records and the policy of preserving
the confidentiality of business information.
J. Originals and Counterparts. 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 or
portable document format (pdf) signatures shall be deemed original signatures for
all purposes of this Agreement.
K. 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.
L. 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.
M. Recordinq of Agreement. The parties hereto agree that at the City's option this
Agreement or 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.
N. Corporation's Obligations Run with the Land. During the Term of the District. the
Corporation'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 VII. A., above.
Page 20 of 23
O. No Deed Restrictions relatinq to Future Use of the PropertV. The Corporation
agrees and consents to the placement of a restriction on the City's deed to
Corporation and agrees that it will not attempt to place in any subsequent deed
conveying all or any portion of the Property any provision prohibiting any general
or specific commercial future use of the property without the consent of the City of
Oshkosh.
P. 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.
Q. Third Parties. This Agreement is made for the exclusive benefit of the parties
hereto, and their permitted assignees, 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.
R. 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 be construed more strictly for or against either party because that
party's attorney drafted this Agreement or any portion thereof or attachment
hereto.
[SIGNATURE PAGES FOLLOW]
Page 21 of 23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
CITY OF OSHKOSH, WISCONSIN
At
Mark A. Rohloff, City Manager
Pamela R. Ubrig, City Clerk
Trena Larson, Finance Director
Lynn A. Lorenson, City Attorney
OSHKOSH CORPORATION
By:
Its:
By:
Its:
Page 22 of 23
EXHIBIT A
Property Legal Description
EXHIBIT B
Purchase and Sale Agreement
EXHIBIT C
Tax Increment District #34 — Tax Increment Projection Worksheet
EXHIBIT D
MRO — Municipal Revenue Obligations
EXHIBIT E
Map — Public Lands Maintenance Area
EXHIBIT F
City Project — Project Milestones
Page 23 of 23
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CERTIFIED SURVEY MAP NO. -1330
BEING ALL OF LOT i AND OUTLOT 1 OF CERTIFIED SURVEY MAP NO. 7312 AS RECORDED IN
VOLUME I OF CERTIFIED SURVEY MAPS ON PAGE 7312 AS DOCUMENT NO. 1757108,
LOCATED IN PART OF THE FRACTIONAL NORTHWEST V. OF SECTION 15, PART OF THE EAST
'/I OF THE NORTHEAST'/. OF SECTION 16 AND PART OF FRACTIONAL SECTION 10, ALL IN
TOWNSHIP 18 NORTH, RANGE 16 EAST, SIXTEENTH WARD, CITY OF OSHKOSH, WINNEBAGO
COUNTY, WISCONSIN.
SURVEY'OR'S CERTIFICATE:
4 ROBERT F. REIDER, PROFESSIONAL WISCONSIN LAND SURVEYOR, CERTIFY THAT I
HAVE SURVEYED, DIVIDED AND MAPPED ALL OF LOT 1 AND OUTLOT l OF CERTIFIED
SURVEY MAP NO. 7312 AS RECORDED IN VOLUME 1 OF CERTIFIED SURVEY MAPS ON PAGE
7312 AS DOCUMENT NO. 1757108, LOCATED IN PART OF THE FRACTIONAL NORTHWEST'/, OF
SECTION 15, PART OF THE EAST''/, OF THE NORTHEAST''/, OF SECTION 16 AND PART OF
FRACTIONAL SECTION 10, ALL IN TOWNSHIP 18 NORTH, RANGE 16 EAST, SIXTEENTH WARD,
CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN. SUBJECT TO ALL EASEMENTS AND
RESTRICTIONS OF RECORD.
THAT I HAVE MADE SUCH SURVEY UNDER THE DIRECTION OF THE CITY OF OSHKOSH,
ATTENTION ALLEN DAVIS, P.O. BOX 1130, OSHKOSH, WISCONSIN 54901-4817.
THAT THIS MAP IS A CORRECT REPRESENTATION OF THE EXTERIOR BOUNDARY LINES
OF THE LAND SURVEYED.
THAT I HAVE FULLY COMPLIED WITH THE PROVISIONS OF CHAPTER 236.34 OF THE
WISCONSIN STATUTES AND THE SUBDIVISION ORDINANCE OF THE CITY OF OSHKOSH.
PLAN COMMISSION CERTIFICATE:
THIS CERTIFIED SURVEY MAP WAS APPROVED BY THE PLAN COMMISSION OF THE CITY
OF OSHrOSH ON THIS DAY OFAi 20/6.
MM11'1
CITY OF OSHKOSH APPROVAL:
THIS CERTIFIED SURVEY MAP WAS APPROVED AND ACCEPTED BY THE CITY OF
OSHKOSH ON THIS _J� DAY OF8' ,o 201$
CITY'MANAGER DATED CITY CLERK ATED
SHEET 3 OF 4 SHEETS
ROBERT F. REIDER, PLS -1251 DATED
INC.
,.
CAROW LAND SURVEYING CO.,
Ao�x1gpER
615 N. LYNNDALE DRIVE, P.Q. BOX 1297
APPLETON, WISCONSIN 54912-1297
pgpLET� 2 ;
PHONE: (920)731-4168
<� .. . 1�
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SUS
A1711.19-1 (RFR) 1-11-2018
fill ........
PLAN COMMISSION CERTIFICATE:
THIS CERTIFIED SURVEY MAP WAS APPROVED BY THE PLAN COMMISSION OF THE CITY
OF OSHrOSH ON THIS DAY OFAi 20/6.
MM11'1
CITY OF OSHKOSH APPROVAL:
THIS CERTIFIED SURVEY MAP WAS APPROVED AND ACCEPTED BY THE CITY OF
OSHKOSH ON THIS _J� DAY OF8' ,o 201$
CITY'MANAGER DATED CITY CLERK ATED
SHEET 3 OF 4 SHEETS
%w� 1,411110
v
CERTIFIED SURVEY M" NO. *1330
BEING ALL OF LOT 1 AND OUTLOT 1 OF CERTIFIED SURVEY MAP NO. 7312 AS RECORDED IN
VOLUME I OF CERTIFIED SURVEY MAPS ON PAGE 7312 AS DOCUMENT NO. 1757108,
LOCATED IN PART OF THE FRACTIONAL NORTHWEST % SECTION 15, PART OF THE EAST
'/2 OF THE NORTHEAST'/h OF SECTION 16 AND PART OF FRACTIONAL SECTION 10, ALL IN
TOWNSHIP I8 NORTH, RANGE 16 EAST, SIXTEENTH WARD, CITY OF OSHKOSH, WINNEBAGO
COUNTY, WISCONSIN.
CORPORATE OWNER'S CERTIFICATE:
CITY OF OSHKOSH, DULY ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE
LAWS OF THE STATE OF WISCONSIN, AS OWNER, DOES HEREBY CERTIFY THAT SAID
ENTITY CAUSED THE LAND DESCRIBED ON THIS CERTIFIED SURVEY MAP TO BE
SURVEYED, DIVIDED, MAPPED AND DEDICATED AS REPRESENTED ON THIS CERTIFIED
SURVEY MAP.
CITY OF OSHKOSH, DOES FURTHER CERTIFY THAT THIS CERTIFIED SURVEY MAP IS
REQUIRED BY S.236.10 OR S. 236.12 TO BE SUBMITTED TO THE FOLLOWING FOR APPROVAL:
CITY OF OSHKOSH.
IN WITNESS WHEREOF, THE SAID CITY OF OSHKOSH HAS CAUSED THESE PRESENTS TO
BE SIGNED BY MARK ROHLOFF, IT'S CITY MANAGER AT OSHKOSH, WISCONSIN, ON THIS
I r DAY OF �ut�u sem= 20.
IN THE PRESENCE OF:
THE CITY OF OSHKOSH
BY:
_
MARK ROHLOFF, CITY MANAGER
STATE OF WISCONSIN)
)Ss
WINNEBAGO COUNTY)
PERSONALLY CAME BEFORE ME THIS y�DAY OF
MARK ROHLOFF, CITY MANAGER OF THE ABOVE NAMED CITY OF OSHKOSH, TO ME
KNOWN TO BE THE PERSON WHO EXECUTED THE FOREGOING INSTRUMENT, AND TO ME
KNOWN TO BE SUCH CITY MANAGER OF THE CITY OF OSHKOSH AND ACKNOWLEDGED
THAT HE EXECUTED THE FOREGOING INSTRUMENT AS SUCH OFFICER
L {gi:- l- 1
NOTARY PUBLIC
WINNEBAGO COUNTY, WISCONSIN
MY COMMISSION EXPIRES _--%Zk121
N 5�,�,1,,���
4SGp
,,
ROBERT F. REI PLS -1251 DATED
CAROW LAND SURVEYING CO., INC.
ROaEs F RDt
1 "5l
615 N. LYNNDALE DRIVE, P.O. BOX 1297
APFIEtoK ;`tt-
APPLETON, WISCONSIN 54912-1297
O
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PHONE: (920)731-4168
1-11-2018
""""sulFc
A1711.19-1 (I2FR)
SHEET 4 OF 4 SHEETS
EXHIBIT B
Purchase and Sale Agreement
AGREEMENT FOR PURCHASE
AND SALE OF PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY (the
"Agreement") is made and entered into on January 10, 2018 (the "Effective Date"), by
and between City of Oshkosh, a Wisconsin municipal corporation with offices at 215
Church Avenue, Oshkosh, Wisconsin ("Seller"), and Oshkosh Corporation, a Wisconsin
Corporation, with offices at 2307 Oregon Street, Oshkosh, WI 54902 ('Purchaser").
RECITALS
Purchaser desires to purchase real property described in Section I below, and in
connection therewith Seller and Purchaser desire to enter into this Agreement to set
forth the terms and conditions of such purchase and sale.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Sale Agreement. Seller agrees to sell to Purchaser and Purchaser agrees to
purchase from Seller, subject to all of the terms and conditions of this Agreement, Lot 2
of Certified Survey Map No. -1511a8 ("CSM"), being a portion of Lakeshore Golf
Course located at 2175 Punhoqua Street, City of Oshkosh (part of tax parcel number
) and consisting of 32.81 acres, and all privileges, rights, easements and
appurtenances thereunto belonging (the "Real Property"). A copy of the certified
survey map is attached to and incorporated in this Agreement'as Exhibit A. At Closing,
Seller shall convey merchantable title to the Real Property to Purchaser by general
warranty deed free and clear of all liens and encumbrances, except only for those title
exceptions reasonably acceptable to Purchaser pursuant to Section 3.1, below (the
"Permitted Exceptions").
2. Purchase Price / Earnest Money. The purchase price of the Real Property
('Purchase Price") shall be $100,000 per acre; the total purchase price shall be three
million two hundred eighty one thousand dollars ($3,281,000.00). Earnest money of
$175,000.00 (the "Earnest Money") will be paid to the Title Insurer within 10 business
days of acceptance of this Agreement by the City of Oshkosh Common Council. Earnest
Money shall be held by the Title Insurer pursuant to its standard form of joint order
escrow agreement until applied against the Purchase Price at Closing or otherwise
disbursed in accordance with this Agreement. Purchaser shall pay to Seller the
remainder of the Purchase Price, subject to customary proration and adjustments as
provided in this Agreement, at the Closing, in cash by wire transfer.
3. Conditions Precedent to Purchaser's Obligations. Purchaser's obligations to
consummate the transactions under this Agreement shall be subject to the following
conditions precedent being satisfied to the satisfaction of the Purchaser (or waived by
Purchaser in writing or as otherwise provided in this Section 3):
3.1 Title Commitment and Policy. On or before January 15, 2018, Seller, at
Seller's sole cost and expense, shall provide Purchaser with a title commitment
("Title Commitment"), on a current ALTA form with a "gap" endorsement, to
issue an Owner's Title Insurance Policy ("Title Policy"), issued by Chicago Title
Insurance Company ("Title Insurer"), covering the Real Property in the amount
of the Purchase Price showing merchantable record title to the Real Property to
be in Seller, with all General Exceptions to be deleted or endorsed over
(including without limitation possession, mechanics' liens and taxes or special
assessments not shown as existing by the public records exceptions), subject only
to the Permitted Exceptions and other matters approved or waived in writing by
the Purchaser. At Closing, Seller shall cause the Title Insurer to issue the Title
Policy to Purchaser (in accordance with the Title Commitment and as provided
for in this Section 3.1).
(a) Certified Survey Map and ALTA Survey. Pursuant to the terms of
the Development Agreement, Seller shall prepare an update to the CSM
that reflects mutually agreed site access points, rights of way, easements,
and stormwater detention ponds in, on or about the Real Property
("Updated CSM"). Purchaser shall have a period of forty-five (45) days
after receipt of the Updated CSM to obtain an ALTA Survey of the Real
Property ("Survey Period").
(b) Objections to Title of Record. Within fifteen (15) business days
after the expiration of the Survey Period, Purchaser shall furnish to Seller
written notification of any comments or objections to or defects in (a) title
of record as set forth in the Title Commitment and (b) Purchaser's review
of the ALTA Survey(s). If Purchaser fails to give this required notice,
Purchaser shall be deemed to have accepted all matters then affecting title
to the Real Property set forth in the Title Commitment and the ALTA
Survey(s). If Purchaser does give said required notice, Purchaser shall be
01)
deemed to have accepted all matters then affecting title to the real
property or the ALTA survey(s) as set forth in the Title Commitment and
ALTA Survey(s) that are not set forth in the required notice.
Notwithstanding anything herein to the contrary, any mortgages, liens or
judgments shown on the Title Commitment will be paid, satisfied or
insured over by Seller on or prior to the Closing Date. After receipt of said
notice, Seller shall have the right, at its election, to endeavor to cure such
objections to or defects in title or survey set forth therein and shall notify
Purchaser of such election within five (5) business days. If Seller does
elect to endeavor to cure such objections to or defects in title or survey, it
shall promptly commence and diligently pursue efforts to cure such
objections within ten (10) business days following its election to cure and
diligently continue pursuit to cure (the "Cure Period").
(c) Failure to Cure Objections. In the event Seller fails to cure
Purchaser's objections to or defects in title of record or survey prior to the
expiration of the Cure Period, including any extensions thereof granted by
Purchaser (in its sole discretion), or if Seller shall determine that its efforts
to cure will not be successful, Purchaser may either (i) waive such
objections to or defects in title or survey and proceed with Closing or (ii)
terminate this Agreement, by written notice to Seller. In the event of
termination, Seller shall direct the Title Insurer to return the Earnest
Money to Purchaser and the parties shall have no further rights or
liabilities under this Agreement except as otherwise described in this
Agreement.
3.2 Inspection. Purchaser shall have until the expiration of the Due Diligence
Period (as defined below) to investigate and inspect the Real Property to
determine, in Purchaser's sole discretion, whether the Real Property is suitable
for Purchaser's intended use and development. With prior notice to Seller,
Purchaser, and Purchaser's employees, agents, and representatives shall have the
right to enter upon the Real Property at any reasonable time and make whatever
tests or inspections of the Real Property that they desire to make at Purchaser's
sole cost and expense pursuant to the terms and conditions of the Temporary
Access Agreement between Purchaser and Seller dated September 11, 2017 (the
"Access Agreement"). Notwithstanding the terms of the Access Agreement, the
parties acknowledge and agree that Purchaser shall have the period commencing
on the Effective Date and continuing until April 1, 2018 (the "Due Diligence
Period"), in which to conduct and complete its inspection and review of the Real
Property. If Purchaser determines that such Real Property (including ingress
3
and egress) is not acceptable to Purchaser in Purchaser's sole discretion,
Purchaser shall have the right to terminate this Agreement by written notice to
Seller prior to the expiration of the Due Diligence Period (as may be extended).
In the event of such termination, Seller shall direct the Title Insurer to return the
Earnest Money to Purchaser and the parties shall have no further rights or
liabilities under this Agreement.
3.3 Archeological Approval and Remediation. A portion of the Real Property
has been identified as an archeological site requiring remediation prior to
development. Seller has begun evaluation and remediation of the site, however,
remediation will require site work that is weather dependent. Prior to Closing,
Seller shall complete the evaluation and remediation of the site sufficient to
obtain approval from the State of Wisconsin Historical Society and approval and
issuance of appropriate permits from the Wisconsin Department of Natural
Resources (and any other applicable regulatory agencies or authorities) as are
necessary for Purchaser's construction activities to take place on the Real
Property. Such permits, when issued, shall not create or establish any new or
additional restrictions upon Purchaser's future use and development of the Real
Property as a result of (i) the identification of the Real Property as an
archeological site and/or (ii) the completion of the remediation activities. Seller
shall diligently pursue such work to completion, however, because the work, is
weather dependent, Purchaser acknowledges that remediation may not be
complete on or before April 15, 2018, and should remediation not be complete by
such date, the parties agree that the date for closing shall be adjusted as provided
in section 5 below.
3.4 Operation of Property. From the Effective Date to the Closing Date, Seller
shall keep and preserve the Real Property in the condition existing as of the
Effective Date and not deposit or permit to be deposited thereon any garbage, fill
or other refuse material without Purchaser's prior written consent. Further,
Seller shall not, without first obtaining the written approval of Purchaser, enter
into any lease or other agreement with respect to the Real Property which will
extend in force beyond the Closing Date and purport to bind Purchaser or the
Real Property or will not be fully performed or terminated by Seller prior to the
Closing Date.
3.5 Rezoning, Approval of TIF District and Development Agreement.
Purchaser's obligation to purchase the Real Property shall also be contingent
upon the completion of the following conditions prior to Closing:
LI
a) Seller obtaining all the zoning, land use and site plan approvals for the
Property in form and substance acceptable to Purchaser.
b) The Creation of a Tax Incremental Financing District (Industrial Use)
consistent with the proposed terms and conditions specified in
Resolution 17-534 adopted by the Common Council on November 8,
2017.
c) Purchaser and Seller reaching mutual agreement upon the terms and
restrictions of, and approval by the City of Oshkosh Common Council of,
a Development Agreement consistent with the proposed terms and
conditions specified in Resolutions 17-534 and 17-535 adopted by the
Common Council on November 8, 2017, in form and substance acceptable
to Purchaser (the "Development Agreement").
Should any of the contingencies listed within this Section 3 not be satisfied, Purchaser
shall be entitled to terminate this Agreement and shall be entitled to return of its
Earnest Money, but shall have no other or further recourse against Seller.
4. Conditions Precedent to Seller's Obligations. Seller's obligations under this
Agreement shall be subject to the following conditions precedent being satisfied to the
satisfaction of the Seller (or waived by Seller in writing or as otherwise provided in this
Section 4):
4.1 Conveyance by City of Oshkosh. Purchaser and Seller recognize that
Seller is the City of Oshkosh and that such conveyance must be approved by the
Common Council for the City of Oshkosh.
4.2 Approval of TIF District and Development Agreement. Seller's obligation
to sell shall be contingent upon completion of the rezoning, TIF District creation
and Development Agreement approvals outlined in Section 3.5, above.
5. Closing. The purchase of the Real Property shall be consummated as follows:
5.1 Closing Date. The closing of the transaction contemplated in this
Agreement shall be on the later to occur of: (i) ten (10) days following the
expiration of the Due Diligence Period, (ii) ten (10) days following the
satisfaction (or waiver) of the conditions outlined in Sections 3 and 4, above,
including without limitation, completion of Seller's remediation activities and
receipt of all approvals as are necessary for issuance of applicable construction
I
permits to Purchaser following completion of the archaeological work identified
in paragraph 3.3 above, or (iii) April 15, 2018 (the "Closing" or "Closing Date"),
or such other date as may be agreed upon by Purchaser and Seller in advance.
The Closing shall be held at the offices of Seller or Title Insurer, or such other
location as the parties may mutually agree.
5.2 Seller's Deliveries and Responsibilities. At Closing, Seller shall deliver to
Purchaser the following:
(a) Deed. An executed general warranty deed to the Real Property
prepared by Seller and in a form reasonably acceptable to Purchaser.
(b) Title Policy. The Title Policy provided for in Section 3.1.
(c) Alta Statement. An executed owner's affidavit and Alta Statement in
the form required by the Title Insurer.
(d) Other Documents. Such other documents, instruments, agreements,
certifications, confirmations and affidavits as may be reasonably required
by Purchaser or the Title Insurer to fully effect and consummate the
transactions contemplated hereby, the recording of documents, the
issuance of the Title Policy, or otherwise.
(e) Possession. Sole and exclusive possession of the Real Property.
5.3 Purchaser's Deliveries and Responsibilities. At Closing, Purchaser shall
deliver to Seller the following:
(a) Purchase Price. Purchaser shall pay to Seller in lawful money of the
United States, the Purchase Price set forth in Section 2, via wire transfer.
(b) Alta Statement. An Alta Statement in the form required by the Title
Insurer.
(c) Other Documents. Such other documents, instruments, certifications
and confirmations as may reasonably be required by Seller or Title Insurer
to fully effect and consummate the transactions contemplated hereby.
ON
5.4 Joint Deliveries. At Closing, Seller and Purchaser shall jointly deliver to
each other the following:
(a) Closing Statement. An agreed upon closing statement.
(b) Transfer Tax Filings. Executed documents complying with the
provisions of all federal, state, county and local law applicable to the
determination of transfer taxes.
(c) Closing_ Costs. Each party shall be responsible for their own costs for
preparation and review of closing documents. The Seller shall pay: (i) the
Seller's settlement fee to the Title Company, (ii) any transfer fee
applicable, (iii) the premium for the Title Policy and gap endorsement,
and (iv) one-half of the Closing and escrow fees charged by the Title
Insurer. Purchaser shall pay: (i) Purchaser's Settlement Fee, (ii) the cost of
any endorsements (other than gap) to the Title Policy, (iii) one-half of the
Closing and escrow fees charged by the Title Insurer, and (iv) Recording
Costs for the deed.
5.5 Demolition of Clubhouse. Seller shall complete the demolition of the
clubhouse structure located on the Real Property and remove all related materials and
debris from the Real Property following the satisfaction (or waiver) of the conditions
outlined in Sections 3 and 4, above, but in any event prior to the Closing Date. All such
demolition and removal activities shall be completed at Seller's sole cost and expense
and in accordance with all applicable laws and regulations.
6. Seller's Representations, Warranties and Covenants. In addition to all other
representations, covenants and warranties by Seller herein, Seller hereby represents,
covenants and warrants, as of the date hereof and as of the Closing, which
representations and warranties shall survive for a period of one (1) year following
Closing, as follows:
6.1 Ownership. Seller is the sole owner of and has good and merchantable fee
simple title to the Real Property, free and clear of all liens, encumbrances,
easements, covenants and other restrictions except the Permitted Exceptions.
6.2 Liens and Liabilities. Except for the Permitted Exceptions, the Real
Property is not subject to any liens, encumbrances, security interests, liabilities,
covenants, restrictions, dedications, rights-of-way, leases or judgments of any
kind whatsoever.
7
6.3 Leases. No other persons are in possession of the Real Property under any
oral or written lease.
6.4 Encroachments. No improvements upon the Real Property encroach upon
adjoining real estate, nor do any improvements upon adjoining real estate
encroach upon the Real Property.
6.5 Special Assessments. There are no pending or planned special
assessments against the Real Property and there are no proceedings for special
assessments against the Real Property.
6.6 Due Incorporation and Corporate Authority. Seller is a municipal
corporation under the laws of the State of Wisconsin. Seller has full power,
authority and legal right to execute, deliver and perform its obligations under
this Agreement.
6.7 Violation of Laws. Seller has not received any written notice from any
governmental agency of violations of any laws or ordinances, rules, regulations
or orders (including, but not limited to, those relating to zoning, condemnation,
building, fire, environmental, health and safety) in respect to the Real Property or
the operation thereof that have not been resolved to the satisfaction of the issuer
of the notice.
6.8 Proceedings. There is no action, proceeding, arbitration, litigation,
governmental investigation or adjudicatory proceeding that is pending which
affects the Real Property or the use thereof or Seller's ability to enter into and
perform its obligations under this Agreement. There are no pending or
threatened condemnation or eminent domain proceedings relating to the Real
Property.
6.9 Environmental Matters. Seller has not violated, and Seller has not
received any written notice that Seller has violated, any Environmental Laws in
connection with the use, ownership, maintenance or operation of the Real
Property. For purposes of this Agreement: (i) "Environmental Laws" shall mean
any federal, state or local statute, law, ordinance, code, rule, regulation, order or
decree regulating, relating to or imposing liability or standards of conduct
concerning any Hazardous Substance, as now or at any time hereafter in effect;
and (ii) "Hazardous Substances" shall have the meaning ascribed in any
Environmental Law to any hazardous, toxic or dangerous waste, substance,
pollutant or material.
8
7. Default.
7.1 Default by Purchaser. If Purchaser fails to perform any of its obligations
under this Agreement for any reason other than Seller's default or the permitted
termination of this Agreement by either Seller or Purchaser as herein expressly
provided, Seller shall so notify the Purchaser in writing and Purchaser shall have
a ten (10) -day opportunity to cure such default. If Purchaser shall fail to cure
such default within such ten (10) -day period, Seller shall be entitled, as its sole
and exclusive remedy, to terminate this Agreement and receive the Earnest
Money as liquidated damages for the breach of this Agreement, it being agreed
between the parties hereto that the actual damages to Seller in the event of such
breach are impractical to ascertain and the amount of the Earnest Money is a
reasonable estimate thereof.
7.2 Default by Seller. In the event that Seller fails to perform any of its
obligations under this Agreement for any reason other than Purchaser's default
or the permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall so notify the Seller in writing and Seller shall
have a ten (10) day opportunity to cure such default. If Seller shall fail to cure
such default within such ten (10) day period, Purchaser shall be entitled, as
Purchaser's sole and exclusive rights and remedies, to either: (a) receive the
return of the Earnest Money, which return shall operate to terminate this
Agreement and release Seller from any and all liability hereunder, or (b) only if
all conditions set forth in Sections 3 and 4 of this Agreement have been satisfied,
to commence an action to enforce specific performance of Seller's obligations
hereunder.
7.3 Enforcement. In any action brought to enforce this Agreement or any
term of provision hereof, including, without limitation, Seller seeking to enforce
Seller's rights to the Earnest Money upon a default by Purchaser, the prevailing
party in such action shall be entitled to recover from the nonprevailing party, all
of the prevailing party's costs of enforcement, including reasonable attorneys'
fees. Such recovery shall be in addition to any other award made to the
prevailing party. This Section 7.3 shall survive Closing or any termination of this
Agreement.
E
8. Miscellaneous. It is further understood and agreed as follows:
8.1 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and such counterparts together
shall constitute one and the same instrument.
8.2 Survival. The representations and warranties contained in this Agreement
shall survive the Closing and the delivery of the Warranty Deed without
limitation.
8.3 Sever. If any provision of this Agreement shall be held to be void or
enforceable for any reason, the remaining terms and provisions hereof shall not
be affected thereby.
8.4 Binding Effect. The provisions of this Agreement shall insure to the
benefit of and bind the successors and assigns of the parties thereto.
8.5 Amendment and Waiver. This Agreement may be amended at any time
in any respect only by an instrument in writing executed by Seller and Purchaser.
Either party may waive any requirement to be performed by the other
hereunder, provided that said waiver shall be in writing and executed by the
party waiving the requirement.
8.6 Integrated Agreement. This Agreement constitutes the entire agreement
between the parties solely with respect to the sale and transfer of the Real
Property. No promises or understandings, either expressed or implied, exist
between the parties with respect to the sale and transfer of the Real Property
under this Agreement except as contained herein.
8.7 Choice of Law. It is the intention of Seller and Purchaser that the laws of
Wisconsin shall govern the validity of this Agreement, the construction of its
terms and interpretation of the rights and duties of Purchaser and Seller.
8.8 Notices. Any notices or demands to be given by or on behalf of either
party to the other as required by this Agreement, or otherwise, shall be delivered
by personal service, by mail, postage prepaid, registered or certified, with return
receipt requested or by facsimile to the parties at the addresses listed below,
unless in the event of any change of address, the other party shall have been
notified promptly in writing and said notice of change of address shall have been
actually received by the other party prior to the time of giving notice. Notice
10
shall be deemed when received for personal service, three days from the date of
the postmark if by mail or the date received if for facsimile unless received after
five p.m. on a business day or received on a weekend day, in which receipt shall
be the next business day.
To Seller: City of Oshkosh
Allen Davis
Community Development Director
215 Church Avenue
Oshkosh, WI 54901
PH: 920.236.5055
Email: adavis@ci.oshkosh.wi.us
To Purchaser: Oshkosh Corporation
Jason Havlik
2307 Oregon Street
Oshkosh, WI 54952
PH: U o , U6 - 593
Email: jhavlik@oshl<oshcorp.com
With a Required Copy to: Oshkosh Corporation
Heather Kelly
2307 Oregon Street
Oshkosh, WI 54952
PH: (920) 236-6861
Email: hl<elly@oshkoshcorp.com
8.9 Accuracy of Representations. Purchaser's obligation to close on the
purchase of the Real Property is expressly conditioned upon the truth and
accuracy, in all respects, of Seller's representations and warranties made under
this Agreement as of the Closing Date.
[Signature Page Follows]
11
IN WITNESS WHEREOF, the parties have caused this Agreement for Purchase
and Sale of Real Property to be executed, as of the day and year first above written.
SELLER:
CITY OF OSHKOSH
By:
iv r . r�`w —
Mark A. Rohloff, City Manager
Pamela R. Ubrig, City derk
L. A. Lorenson� ity Attorney
PURCHASER:
OSHKOSH CORPORATION
By: , ".
�T.-i Sod U. 941MA
V A -0-F FqC- J. nee M*s.
12
EXHIBIT A
TO AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY BETWEEN
CITY OF OSHKOSH AND OSHKOSH CORPORATION
IDENTIFICATION OF REAL PROPERTY
(on pages following)
13
EXHIBIT C
Tax Increment District #34 — Tax Increment Projection Worksheet
District Creation Date-7a�tttaN2 2q2.$' Appreciation Factor
Valuation Date.;z7at1Y Base Tax Rate 2fir80`
Expenditure Period/Termination1,111151-1-41W23121!38
Extension Eligibility/Years ,r -YgS.„ -,-:f, Tax Exempt Discount Rate
Construction
Year Value Added
1 2018
4,752,033
2 2019
14,256,099
3 2020
0
4 2021
0
5 2022
0
6 2023
0
7 2024
0
8 2025
0
9 2026
0
10 2027
0
11 2028
0
12 2029
0
13 2030
0
14 2031
0
15 2032
0
16 2033
0
17 2034
0
18 2035
0
19 2036
0
20 2037
0
Notes:
'Tax rate shown is actual TID Interim Rate for the 2017/18 levy per DOR Form PC -202 (Tax Increment Collection Worksheet).
Table 2 — Tax Increment Projection Worksheet
Financing and Implementation
Development incentives to be paid to the Developer consist of two elements under the proposed
development agreement:
• City Contribution. First, a total of $6 million would be paid from the annual tax increments
collected on a "pay as you go" basis with annual payments not to exceed $500,000. Once the $6
million in incentives is fully paid, the first $500,000 collected annually would flow to the District
to reimburse prior City advances or to pay for additional Project Costs.
• Incentive Payments. The second portion is an incentive payment consisting of payment of 100%
of any amount of annual increment collected more than $500,000 through the year 2037 on a
"pay as you go" basis. The City's obligation to make Incentive Payments is strictly limited to the
amount of any incremental taxes collected within the District.
The City will also incur an estimated $6.16 million in public infrastructure and related costs needed to
allow for the Project to proceed including: street improvements; water and sanitary sewer system
improvements; storm water management improvements; demolition of the existing Lakeshore clubhouse;
natural gas and electric installation; construction of Riverwalk trail; and a traffic impact analysis.
Administrative expenses estimated at $77,000 are also included and will be incurred over the life of the
District after the full City Contribution payment has been made.
Project Plan TID No. 34 Creation City of Oshkosh
Prepared by Ehlers Page 25 January 23, 2018
Tax Exempt
Inflation
Total
NPV
Taxable NPV
Valuation Year
Increment
Increment Revenue
Year
Tax Rate'
Tax increment
Calculation
Calculation
2019
0
4,752,033
2020
$26.30
111,125 111,125
106,452
2020
0
19,008,132
2021
$26.30
''SOO,i1dq'
538,527
510,060
2021
0
19,008,132
2022
$26.30
949,490
892,627
2022
0
19,008,132
2023
$26.30
`^SOq UQq
1,344,647
1,255,250
2023
0
19,008,132
2024
$26.30
5q0 Uqq
1,724,606
1,598,969
2024
0
19,008,132
2025
$26.30
500 if1i(f
2,089,951
1,924,768
2025
0
19,008,132
2026
$26.30
:500 AOQ
2,441,245
2,233,583
2026
0
19,008,132
2027
$26.30
2,779,027
2,526,298
2027
0
19,008,132
2028
$26.30
X00{90Q
3,103,817
2,803,753
2028
0
19,008,132
2029
$26.30ti500
aqQ
3,416,116
3,066,744
2029
0
19,008,132
2030
$26.30
--50Q B-00,
3,716,403
3,316,024
2030
0
19,008,132
2031
$26.30
�-% `600 qqQ
4,005,140
3,552,309
2031
0
19,008,132
2032
$26.30
zr 500 ilg0
4,282,773
3,776,275
2032
0
19,008,132
2033
$26.30
,;�SIX1 qUq'
4,549,727
3,988,566
2033
0
19,008,132
2034$26.30
OO,gOA:.
4,806,413
4,189,789
2034
0
19,008,132
2035
$26.30
sjQQxQq¢
5,053,227
41380,522
2035
0
19,008,132
2036
$26.30s�Offb
5,290,549
4,561,312
2036
0
19,008,132
2037
$26.30
Sqq Opp;
5,518,742
4,732,676
2037
0
19,008,132
2038
$26.30
SOq,4g0
5,738,159
4,895,107
2038
0
19.008.132
2039
526.30
5.949.137
5.049.070
Notes:
'Tax rate shown is actual TID Interim Rate for the 2017/18 levy per DOR Form PC -202 (Tax Increment Collection Worksheet).
Table 2 — Tax Increment Projection Worksheet
Financing and Implementation
Development incentives to be paid to the Developer consist of two elements under the proposed
development agreement:
• City Contribution. First, a total of $6 million would be paid from the annual tax increments
collected on a "pay as you go" basis with annual payments not to exceed $500,000. Once the $6
million in incentives is fully paid, the first $500,000 collected annually would flow to the District
to reimburse prior City advances or to pay for additional Project Costs.
• Incentive Payments. The second portion is an incentive payment consisting of payment of 100%
of any amount of annual increment collected more than $500,000 through the year 2037 on a
"pay as you go" basis. The City's obligation to make Incentive Payments is strictly limited to the
amount of any incremental taxes collected within the District.
The City will also incur an estimated $6.16 million in public infrastructure and related costs needed to
allow for the Project to proceed including: street improvements; water and sanitary sewer system
improvements; storm water management improvements; demolition of the existing Lakeshore clubhouse;
natural gas and electric installation; construction of Riverwalk trail; and a traffic impact analysis.
Administrative expenses estimated at $77,000 are also included and will be incurred over the life of the
District after the full City Contribution payment has been made.
Project Plan TID No. 34 Creation City of Oshkosh
Prepared by Ehlers Page 25 January 23, 2018
EXHIBIT D
MRO — Municipal Revenue Obligations
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
Oshkosh TIF 34 - 1 March , 2018 $6,000,000.00
FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin (the
"City"), promises to pay to Oshkosh Corporation (the "Developer"), or 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 six million dollars ($6,000,000).
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 first five hundred
thousand dollars ($500,000.00) of Tax Increments and Minimum Increment Guaranty, if
applicable, attributable to the land value and Headquarters Project as provided in the Development
Agreement entered into between the two parties for the prior year provided such payments are due
under the Development Agreement. Payments on this MRO shall be made only to the extent that
the City has received Tax Increments or Minimum Increment Guaranty, if applicable. It is
anticipated that there will be a partial payment in the first year and last year of the payment due to
a partial assessment of the Headquarters Project in calendar year 2019. The installments for the
first and last year are estimates based upon the value estimated in the TIF District Project Plan.
This MRO has been issued to finance projects within the City's Tax Incremental District
No. 34 ("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 as provided for under
the Resolution 18-59 adopted on January 23, 2018 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. 34 Development Agreement dated March ,
2018 between 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 Tax Increments or
Minimum Increment Guaranty, if applicable, attributable to the land value and Headquarters
Project as provided in the Development Agreement entered into between the two parties 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 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 Termination of the TIF District.
The City makes no representation or covenant, express or implied, that the 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 Tax Increments to make payments due on this MRO. In addition, as provided in
Section IV. of the Development Agreement, the total principal amount to be paid shall in no event
exceed six million dollars ($6,000,000). 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 V 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.
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 in connection with an
Assignment of the Development Agreement. 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.
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
Mark A. Rohloff
City Manager
Pamela R. Ubrig
City Clerk
Trena Larson
Finance Director
Lynn Lorenson
City Attorney
Schedule 1
Payment Schedule
Subject to the City's annual receipt of Tax Increment and the terms and conditions of the
Development Agreement, the City shall pay to Developer the first $500,000 of total Tax
Increment, or Minimum Increment Guaranty, as applicable, received by the City for the prior
year:
Payment Date
Payment Amount
November 1, 2020.
Available Tax Increment for 2019 (partial
payment)
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(partial
payment of remainder due)
In any event, the total payment to Developer on this MRO shall not exceed six million dollars
($6,000,000).
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
CTTY MR 0
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
Oshkosh TIF 34 - 2 March , 2018 Variable based upon
Yearly Calculation
FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin (the
"City"), promises to pay to Oshkosh Corporation (the "Developer"), or assigns, but only in the
manner, at the times, from the source of revenue and to the extent hereinafter provided an Incentive
Payment as provided in the Tax Incremental District No. 34 Development Agreement dated March
2018 between the City of Oshkosh, Wisconsin, and the Developer ("Development
Agreement").
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 amount of Tax
Increment annually in excess of five hundred thousand dollars ($500,000.00), attributable to the
land value and Headquarters Project as provided in the Development Agreement for the prior year
provided such payments are due under the Development Agreement. Payments on this MRO shall
be made only to the extent that the City has received Tax Increments or Minimum Increment
Guaranty, if applicable.
This MRO has been issued to finance projects within the City's Tax Incremental District
No. 34 ("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 as provided for under
Resolution 18-59 adopted on January 23, 2018 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 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 Tax Increments or Minimum Increment Guaranty, if applicable,
attributable to the land value and Headquarters Project as provided in the Development Agreement
entered into between the two parties 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 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 November 1, 2037 or the Termination of the TIF District, whichever is earlier.
The City makes no representation or covenant, express or implied, that the 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 Tax Increments to make payments due on this MRO. Upon payment of any Incentive
Payment due in 2037 or upon a determination and notice to the Developer that no payment is due
in 2037, 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 V 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.
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 in connection with an
Assignment of the Development Agreement. 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.
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
Lb -A
Mark A. Rohloff
City Manager
Pamela R. Ubrig
City Clerk
Trena Larson
Finance Director
Lynn Lorenson
City Attorney
Schedule 1
Payment Schedule
Subject to the City's annual receipt of Tax Increment and the terms and conditions of the
Development Agreement, the City shall pay to Developer an Incentive Payment, as defined by
the Development Agreement and this MRO, received by the City for the prior year:
Payment Date
Payment Amount
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
November 1, 2037
Available Tax Increment for 2036
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
EXHIBIT E
Map — Public Lands Maintenance Area
EXHIBIT F
City Project — Project Milestones
147:11_ -
City Project — Project Milestones
• Access Agreement Draft: March 16, 2018 — agreement will provide for construction
traffic access via the ROW for Koeller St, available by May 15, 2018
• Public utility connections (sanitary sewer, water) available to site: 12/1/2018
• right-of-way and/or easements made available to allow for delivery of electric and gas
utilities to site by: 12/1/2018
• Koeller St. concrete pavement complete: 10/31/2019
• City stormwater management facilities to accept stormwater by: 9/1/2019 (contingent
upon approval of outfall pipe by WDNR or provisions to allow stormwater to be
managed by existing City -owned stormwater facilities on and off-site)