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CCR2007220. . . AMENDED COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #220-2007 RESOLUTION AUTHORIZING DEVELOPMENT AGREEMENT WITH ACE INDUSTRIAL PROPERTIES, INC. WHEREAS, Ace Industrial Properties, Inc. (the "Developer") is the owner of the real estate in the City described on Exhibit A attached hereto (the "Property"); and WHEREAS, the Developer intends to develop the Property, including by constructing on a portion of the Property an office/warehouse building (the "Development Project"); and WHEREAS, the Property is located within the boundaries of the City's proposed Tax Incremental District No. 10 ("TID No. 10") which is being created by the City for the purpose of promoting mixed-used development in the City; and WHEREAS, the development of the Property and the construction of the Development Project will further the purposes of TI D NO.1 0 and is in the best interests of the City; and WHEREAS, in order to obtain for the City and its residents the benefits to be derived from the construction of the Development Project, the City proposes to enter into a Development Agreement with the Developer in substantially the form attached hereto as Exhibit B (the "Development Agreement"); NOW, THEREFORE, be it resolved by the Common Council of the City of Muskego, Waukesha County, Wisconsin, that the Development Agreement is amended and approved, and the Mayor and City Clerk are authorized to execute the Development Agreement, for and on behalf of the City, with such insertions therein or changes and corrections thereto as shall be approved by the Mayor and City Clerk. DATED THIS 2ih DAY OF NOVEMBER ,2007. SPONSORED BY: Ald. Noah Fiedler Deferred: 11/13/07 This is to certify that this is a true and accurate copy of Resolution #220-2007 which was adopted by the Common Council of the City of M kego. U Treasurer . . . EXHIBIT A DESCRIPTION OF PROPERTY All that part of the Northeast 1/4, and Southeast 1/4 of Section 3, Town 5 North, Range 20 East, City of Muskego, Waukesha County, Wisconsin, bounded and described as follows: Commencing at the Southwest corner of the Northeast 1/4 of said Section 3, thence N 00019'58" W along the West line of said Northeast 1/4 a distance of 302.09 feet to the point of beginning of lands to be described; thence continuing N 00019'58" W along said West line 1,433.69 feet to the Northwest corner of Outlot 1 Certified Survey Map NO.1 0174; thence N 88045'40" E along the North line of said Outlot 1 a distance of 742.44 feet, to the West line of a property identified by tax-key no. 2169-993; thence Northerly along said West line 610 feet more or less to College Avenue Southerly right-of-way line; thence along said South line 308 feet more or less to the West line of a property identified by tax-key no. 2169-986; thence Northerly along said West line 17 feet more or less to said Southerly College Avenue right-of-way line; thence Easterly along said South right-of-way line 150 feet to Moorland Road Westerly right-of- way line; thence Northerly along said West line 287 feet to said Southerly College Avenue Right-of-way line; thence Easterly 330 feet more or less to the Northerly corner of a property identified by tax-key no. 2169-994-001; thence Easterly along said College Avenue South line 295 feet more or less to the Westerly line of a property identified by tax-key no. 2169-995-001; thence Southerly along said West line 240 feet more or less to the South line of said property; thence Easterly along said South line 150 feet to the South line of a property identified by tax- key no. 2169-995; thence Northeasterly along said South line extended 220.2 feet, to the East line of a property identified by tax-key no. 2169-996; thence Northerly along said East line 190 feet more or less to the South line of said College Avenue; thence Easterly along said South line 228 feet more or less to a point on a curve; thence Southwesterly along the arc of a curve, center lying to the Southeast, a distance of 119.47 feet to the West line of a property identified by tax-key no. 2169-997; thence 100 feet to the South line of said property; thence Easterly along said South line, and also along the South line of a property identified by tax-key no. 2169- 998, a distance of 317.40, to the East line of said Northeast 1/4; thence Southerly along said East line 2165.10 feet, to the Southeast corner of said Northeast 1/4 section; thence Westerly along the South line of said Northeast 1/4 section 515 feet more or less to the Easterly Moorland Road right- of-way line; thence Southeasterly along said East line 538 feet; thence Southwesterly 211 feet more or les to the Westerly Moorland Road right-of-way; thence Northwesterly along said West line 643 feet to the South line of said Northeast 1/4 section; thence S 800 17'32" W along said South line 1173 feet more or less to the Southeast corner of Lot 23, Oakridge Glen Subdivision; thence N 00026'48" W feet along the East line of said Lot 23 a distance of 302.07 feet, to the North line of said Oakridge Glenn Subdivision; thence S 88017'32" W along said North line 745.40 feet, to the point of beginning. Containing 5,492,291 sq.ft.(126.09 acres) more or less. . . . DEVELOPMENT AGREEMENT DOC\Jlll8nt Number Document Title THIS DEVELOPMENT AGREEMENT is made and entered into as of the day of , 2007, by and between Ace Industrial Properties, Inc., a Wisconsin corporation (the "Developer") and the City of Muskego, a Wisconsin municipal corporation (the "City"). RECITALS: WHEREAS, the Developer is the owner of the real estate located within the City, legally described on Exhibit A attached hereto (the "Property"); WHEREAS, the Developer currently contemplates developing (the "Development Project") a portion of the Property legally described on Exhibit B attached hereto (the "Initial Parcel") by constructing thereon an officeiwarehouse building initially containing approximately 484,650 total square feet (the "Building"); Recordinq Area N811181 and Return Address Warren S. Blumenthal Quarles & Brady LLP 411 E. Wisconsin Avenue Suite 2040 Milwaukee, WI 53202 Parcel Identification Number (PIN) WHEREAS, Section 66.1105 of the Wisconsin Statutes (the "Tax Increment Law") provides the authority and establishes procedures by which the City may exercise powers necessary and convenient to carry out the purposes of the Tax Increment Law, cause project plans to be prepared, approve such plans, implement provisions and effectuate the purposes of such plans, and finance such development through the use of tax incremental financing; . WHEREAS, on or about ,2007, the Common Council of the City found that the properties located within the District were in need of mixed-use development requiring public improvements, and adopted Resolution No. creating Tax Incremental District No. 10 (the "District"); WHEREAS, the Common Council of the City also has approved the plan for the development of the properties located within the District (the "TIF Project Plan"); WHEREAS, on , 2007 the Common Council of the City determined that the Property is located within the District and that the Development Project is in accordance with the TIF Project Plan, and authorized representatives of the City to negotiate and execute this Development Agreement with the Developer; QBMKE\ 622 94 8 9.1 . . . WHEREAS, this Development Agreement is intended to provide for certain duties and responsibilities of the Developer and the City relating to the development of the Property as described herein; WHEREAS, the City intends to construct certain off-site improvements for the benefit of the Property and will reimburse the Developer for the construction of certain on-site improvements to the Property which the City has determined are needed for development of the Property in order to provide an incentive to the Developer which the City finds to be necessary to encourage the Developer to undertake the duties and responsibilities set forth herein; WHEREAS, the City believes that unless the City provides the incentives to the Developer described in this Development Agreement, the Developer will not undertake the development of the Property; and WHEREAS, the City has determined that the development of the Property pursuant to this Development Agreement and the fulfillment generally of the Development Agreement by the parties hereto are in the best interests of the City and its residents; will enhance the value of other properties in the City; will promote the orderly development of the Property in accordance with the master land use plan for growth and development adopted by the City; and are in accord with the public purposes and conditions of the applicable state and local laws and requirements under which the TIF Project Plan has been undertaken and is being carried out. . AGREEMENT NOW, THEREFORE, in consideration of the Recitals, the covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: SECTION I. REPRESENTATIONS AND WARRANTIES OF THE DEVELOPER The Developer makes the following representations and warranties which the City may rely upon in entering into this and all other agreements with Developer and upon which the City may rely in granting all approvals, permits and licenses for the Development Project and in executing this Development Agreement and performing its obligations hereunder: 1. Developer is a duly organized and existing corporation in current status under the laws of the State of Wisconsin. 2. The execution, delivery and performance of this Development Agreement and the consummation of the transactions contemplated hereby have been duly authorized and approved by the Developer, and no other or further acts or proceedings of the Developer are necessary to authorize and approve the execution, delivery and performance of this Development Agreement and the matters contemplated hereby. This Development Agreement, and the exhibits, documents and 2 QBMKE\6229489.1 . . . instruments associated herewith and made a part hereof, have been duly executed and delivered by the Developer and constitute the legal, valid and binding agreement and obligation of the Developer, enforceable against it in accordance with their respective terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally, and by general equitable principles. 3. There are no lawsuits filed or pending, or to the knowledge of Developer, threatened against Developer that may in any way jeopardize or materially and adversely affect the ability of the Developer to perform its obligations hereunder. 4. The Developer has at this time, and will have so long as this Development Agreement continues in effect, sufficient available funds for the completion of the Developer's obligations under this Development Agreement. 5. The Developer has obt:Jincd all necessary equity and debt financing committed to fully fund all of its obligations hereunder and has performed and complied with all conditions, covenants and agreements as required by said debt financing. SECTION II. UNDERTAKINGS OF THE DEVELOPER A. Obtain Approvals for Plans and Specifications. The Developer, at its cost and expense, shall: (i) submit all informaUon, drawings, elevations, plans, specifications and other documents and information and all other matters required by the City, for approval of all plans for any and all demolition, soil remediation, improvements, construction and development of the Property in accordance with the normal practices and procedures of the City; Oi) deliver to the City in a form required by the City. a list of all improvements described in this Development Agreement that the City must ~ at least four (4) sets of plans and cpccific:Jitonsspecifications which delineate specifically and separately the improvements described in this Development Agreement that the City must bid; and (iii) obtain all approvals necessary therefor within the earliest commercially reasonable time thereafter, and obtain all zoning and conditional use permits and other approvals for construction of and enter into any other and further additional development agreements with the City detailing the requirements for construction and development of the Property prior to the commencement of any construction activities. As part of any approval process, the City may, in accordance with its normal permitting and zoning or conditional use grant process, impose such restrictions, covenants and obligations on the Developer as the City deems appropriate for the development, construction and use of the Property. The Developer agrees to pay all development, license, permit and other fees required by the State of Wisconsin, the City and all other applicable governmental entities, and will not in any way seek reimbursement from the City for the cost thereof. No buildings or improvements shall be constructed on or in the Property until the plans and specifications for such buildings and improvements have been granted final approval by the City; all necessary zoning and conditional use permits and approvals are obtained in accordance with the requirements of the City and the City ordinances; and the City and the Developer have 3 QBMKE\6229489.1 . . . entered into such further development and other agreements as the City deems necessary to detail the requirements for any and all demolition, remediation and construction on, and development of, the Property, and the obligations of the Developer with respect to the Development Project. B. Compliance with Codes, Plans and Specifications. The construction of the Building and other improvements constructed on and in the Property, and their uses, shall be in compliance with all applicable conditional use grants and zoning and other ordinances of the City; all other applicable laws, ordinances, regulations and requirements of all other governmental and quasi-governmental entities having jurisdiction over the Property; and with the pertinent provisions of the plans and specifications which have been approved by the City. The acceptance of this Development Agreement and granting of any and all approvals, zoning, conditional uses, licenses and permits by the City, in and of itself, shall not obligate the City to grant any variances, exceptions or further conditional use grants, or approve any building, any addition to the Building, or construction the City determines not to be in complianæ with the City ordinances, or the requirements of any other applicable governmental authority. C. Erosion Control. The Developer shall comply with all grading, zoning, erosion and soil control requirements affecting the Property in accordanæ with all applicable, federal, state, county and municipal regulations, guidelines, specifications, laws, ordinances and permits affecting the Property or portion thereof. Without limiting the foregoing, the Developer shall take such action and shall utilize such techniques and mechanisms necessary to implement any erosion control plan required by the City and with the applicable provisions of any construction site maintenanæ and erosion control ordinanæs the City may now or hereafter have adopted, in order to prevent sediment from being deposited on the adjacent properties .or on any public street or into adjacent wetlands and to prevent sediment from being washed into downstream drainage facilities. D. Protected Areas. The Developer shall be responsible for undertaking all steps and precautions as are necessary to insure the preservation and protection of any shoreland areas, wetlands, Native American burial grounds, and other protected interests on or in the Property. All such protected areas disturbed in any way by construction activities on any portion of the Property or in connection with the development of the Property by or for the Developer, shall be restored by the Developer to its prior condition to the reasonable satisfaction of the City. E. Construction Timeline for the Building. The Developer shall commence construction of the Building as soon as practicable but in no event later than April 1, 2008 and substantially complete construction of the Building with a minimum assessed valuecost to complctc inclusive of land.. and soft coste at completion of not less than Twenty-Five Million Dollars ($25,000,000.00) as soon as practicable but in no event later than July 1,2009. For purposes of this Development Agreement, the term "substantial completion" shall mean the issuance by the City of an occupancy permit for the Building and the Developer and the City have entered into any agreements required 4 QBMKE\62294 8 9.1 . . . by the City concerning any uncompleted landscaping, restoration final stabilization, final lift of asphalt or other similar matters. F. Storm Water. The Developer shall construct such facilities and at all times use the Property in accordance with all surface and storm water runoff, management, filtration and other such requirements of the City and all other applicable governmental entities and authorities. The Developer shall not commence any construction or improvement on or in any part of the Property unless and until the Developer has obtained all approvals required for a storm water management plan from the City and all other applicable government authorities. G. Public Utilities. The Developer shall install the public water services to the Building such that no portion of the Property shall be served by a private water system. The Developer shall obtain all requisite permits and approvals for such public water system from all other applicable government authorities. The Developer shall install sanitary sewer service to the Building such that no portion of the Property shall be served by private septic or alternate means of treating sanitary sewer effluent. The Developer shall obtain all requisite permits and approvals for such sanitary sewer service from the City and all other applicable government authorities. H. Covenants, Easements and Restrictions. The Developer shall convey such covenants, easements and restrictions on, in or affecting the Property to or as directed by the City, in order to effect the Development Project. . I. Developer Work. The Developer at its sole cost and expense shall construct the on-site facilities and improvements on and in the Property described on Exhibit C attached hereto (the "Developer Improvements") and the facilities and improvements located on and in the Property which are described on Exhibit D attached hereto and which the Developer shall dedicate to the City as required by Section 11 below (the "Dedicated Improvements"). The Developer shall complete construction of the Developer Improvements and Dedicated Improvements as soon as practicable but in no event later than July 1, 2009. The Dedicated Improvements shall include. without limitation. a water tower designed by the City and located on the Property as agreed by the Developer and the City. and the items listed on Exhibit D. All work performed by the Developer on the Developer Improvements and the Dedicated Improvements shall be performed to such standards as are generally specified by the City for such work as if performed on behalf 'of the City, as may be specifically required by the City, and in accordance with all plans and specifications developed by or for the City or approved by the City by contractors who are licensed and qualified to do such work. Without limiting the foregoing, the Developer shall at all times take all precautions necessary or advisable and at all times perform all work on or in the Property or in connection with the Development Project, in a manner that will safeguard and protect the water and other infrastructure that may be affected by the Development Project. The Developer shall notify the City of the commencement date of all work on or in or related to the Property and keep the City informed of the Developer's construction schedule. All contracts and contractors performing any work on the Dedicated Improvements shall be 5 QBMKE\6229489.1 . . . reviewed by the City before any such work is commenced, and said contracts shall be let to the lowest responsible bidder. J. Performance Assurances. The Developer shall, at its sole cost and expense, deliver to the City upon execution of this Development Agreement, and thereafter keep in full force and effect, either a performance bond to guaranty completion org letter of credit equal to 120% of the cost of the construction of the Developer Improvements and the Dedicated Improvements as required by this Development Agreement to guaranty completion of construction and maintenance for the first year after completion of construction. Said performance bond or letter of credit shall be in form and amount reasonably required by the City to fund the construction ot the Developer Improvements and the Dedicated Improvements and to maintain the Dedicated Improvements in good condition and repair for a period of one (1) year from and after the date of completion of such work. K. Financial Information. The Developer shall, from time to time upon reasonable request of the City, provide to the City financial information and statements of the Developer as requested by the City certified by the Developer to be true and correct in all respects, and all instruments and documents relating to any and all mortgage loans secured by the Property. L. Dedication of Dedicated Improvements. In concideration of the payment referenced in Section III.B. for Dedicated Improvementz, tIhe Developer shall dedicate and convey to the City, at no other cost or expense to the City, a permanent easement or fee simple title to the Dedicated Improvements, as may be required by the City. Title to or easements granted in and to the Dedicated Improvements, as the case may be, shall be conveyed to the City as soon as practicable after completion" of construction of the Dedicated Improvements, but in no event later than June 30, 2009, by special warranty deed or Certified Survey Map, free and clear of any and all liens and encumbrances whatsoever except as listed on Exhibit E attached hereto. At least ten (10) days prior to the transfer of the Dedicated Improvements to the City, the Developer at its sole cost and expense, shall provide to the City title insurance as required by the City in an amount not less than $10,000. The Developer shall pay all transfer taxes (if any), recording fees, real estate taxes through the date of transfer, special assessments levied through the date of transfer, and such other costs and expenses relating to the transfer of the Dedicated Improvements to the City. The Dedicated Improvements will be conveyed in a condition AS IS, except that the Developer represents and warrants to the City that it has no notice or knowledge of any underground storage tanks or other environmental or hazardous condition affecting the Dedicated Improvements. The Developer shall deliver to the City prior to the date of such transfer, original Lien Waivers showing payment in full for all Dedicated Improvements. The Developer shall execute and deliver such other and further documents and instruments as the City may reasonably require to effectuate the transfer to the City of the Dedicated Improvements. Provided, Developer is in full cokpliance hermvith, at the time of transfer, the City ~hall make the payment required under Section 111.8. in the amount of One Million Dollars ($1,000,000.00). 6 QBMKE\6229489.1 . SECTION III. UNDERTAKINGS OF THE CITY City Improvements. The City agrees to expend an amount not to exceed Dollars ($ ) to construct the off-site facilities and improvements described on Exhibit F attached hereto for the Building (the "City Improvements"). All public works contracts to construct the City Improvements shall be let in accordance with the provisions of Wis. Stats. Sections 61.55 and 66.0901. The City (i) shall commence the bidding process for the construction of the City Improvements not later than thirty (30) days after the engineering plans for such work are submitted to the City by Developer and approved by the City (the "Engineering Plans"), (ii) the Developer has provided to the City a fully signed lease for the Building and the City confirms that said lease contains such terms as the City determines are necessary to support the Development Project, and (iii) funding as required by the City is in place for the City to complete such construction. The City agrees to diligently pursue such funding and complete such work. The City shall be solely responsible for obtaining any and all necessary permit, approval or authorization from any third party including the Department of Natural Resources with respect to the City Improvements. At the time the City provides the Grant described in Section III.B. below to the Developer, the Developer shall sell the Engineering Plans including Traffic Impact Analysis to the City and the City shall purchase the Engineering Plans including Traffic Impact Analysis from the Developer for a purchase price equal to the actual cost incurred by Developer not to exceed $ A. . In connection with the Moorland Road road construction, access permits shall be first sought and obtained by the Developer. Access permits as authorized by the Waukesha County Department of Transportation shall be at locations as depicted by the attached site plan. . B. - Grant to the Developer. Within forty five (45) days of the last to occur of: (i) substantial completion of the Building, Developer Improvements and Dedicated Improvements (other than final lift of asphalt and punchlist items), and (ii) the transfer and dedication of the Dedicated Lands to the City via recording of the Certified Survey Map or under the procedure outlined in Section II.A; and provided that the Developer has fully performed each and all of its obligations in this Section III.B. and otherwise under this Development Agreement to be performed by the Developer through the date -thereof, the City will remit to Developer-a grant (the "Grant") in an amount not to exceed I (based on the actual costs incurred) Two Million Two Hundred Thousand Dollars ($2,200,000.00), of which the amount of One Million Two Hundred Thousand Dollars ($1,200,000.00) is earmarked to partially reimburse the Developer for the costs and expenses of constructing the Developer Improvements and the amount of One Million Dollars ($1,000,000.00) of which is to partially reimburse the Developer for Dedicated Improvements. (This portion shall be paid as provided in Section II.L.) All such costs and expenses to be reimbursed to the Developer shall be determined by the City to be costs and expenses that are necessary and appropriate for the construction of the Dedicated Improvements and Developer Improvements, and have been paid in full by 7 QBMKE\6229489.1 . . . the Developer. The Developer shall submit to the City for review and approval by the City in accordance with the usual procedures and standards of the City, paid invoices, lien waivers for all work performed and materials supplied in connection with the Dedicated Improvements and the Developer Improvements, and all other such information requested by the City. Notwithstanding the foregoing. the City may in its discretion remit up to One Million Dollars ($1.000.000) of the Grant to the Developer in accordance with the requirements of this Section III.B. at any time after completion of the Developer Improvements and the Dedicated Improvements. but prior to completion of the Building. 8 QBMKE\ 622 94 8 9.1 . C. City Financing and Security. (i) City Financing. The City shall use commercially reasonable efforts to issue from time to time bond anticipation notes and/or other notes and bonds which the City determines to be necessary or appropriate to finance and/or refinance the costs of the obligations of the City under this Development Agreement and the issuance of such notes and bonds (collectively, the "City Financing"). It is intended that the interest and principal on the City Financing (the "City Debt Service") shall be paid from tax increments ("TIF Revenues") generated from the Building and other improvements to be constructed on the Property by the Developer other than the Dedicated Improvements. The City Debt Service shall be structured to reflect a good faith estimate of the TIF Revenue anticipated to be generated by the Building and the Initial Parcel. It is currently anticipated that the City Debt Service is estimated to be as set forth on Exhibit G attached hereto but the parties acknowledge and agree that the City Debt Service shall be the actual payment amount incurred by the City at the time the City Financing is obtained. Any such amount shall 0) adopt a good faith estimated of TIF Revenue anticipted from Developer, and (ii) approximate equal payments over the remaining life of the TIF. . (ii). Special Assessments. In the event the TIF Revenues are not sufficient to pay the City Debt Service when and as due, the City may collect such annual amounts directly from Developer as an advance against future TIF Revenue (the "Developer Payment"), and in the event the Developer has not timely paid such Developer Payment in full, then the City may collect such annual payments by special assessment levied on the Initial Parcel, in addition to any and all of the rights and remedies set forth in this Development Agreement or as otherwise "available to the City at law or in equity. The Developer and all successive owner(s) of the Initial Parcel or any portion thereof acknowledge and agree that special benefits are conferred on the Initial Parcel by the City, ~nd each and all of them do hereby consent to the levying of said special assessments and waive all notice, hearing and appeal rights relating thereto, including without limitation, all rights of notice, hearing or appeal with respect to adjustment of the amount of said special assessments. . (iii). Any Developer Payment made by the Developer to the City arising out of Section III(C) above, shall only be repaid to the Developer without interest in future years when and if the TIF Revenue collected for such future year exceeds the City Debt Service for a particular year within thirty (30) days of collecdtion as early after I collection by the City as it is able to process this. If there are Developer's Payments which have not been repaid as of December 31, 2024, the District shall not be terminated by the City so as to provide additional time to reimburse the Developer for such Developer Payments until the first to occur of the repayment in full of all Developer Payments or the applicable limitation for the District under the Tax Increment Law. This Development Agreement and the agreement to repay any Developer Payment as provided herein, shall terminate upon termination of the District. 9 QBMKE\ 622948 9.1 . . . (iv). The City acknowledges that if it adopts an amendment of the original Project Plan for the District, which includes additional Project Cost, at least part of which are to be incurred after the period specified under sec. 66.11 05(6)(am)1, the tax increment base for the District may be redetermined. If such a redetermination occurs, the ability of the Developer to generate tax increment under this Agreement may be adversely affected. In the event the City elects to amend the Project Plan at any time and the amendment results in a redetermination of the tax increment base for the District, the City shall do so subject to the understanding that the amount payable by the Developer under any TIF Revenues guarantee by the Developer is hereby extinguished to the extent of the increase of such redetermined tax base. shall be calculated as if such redetermination had not occurred. SECTION IV. MISCELLANEOUS REQUIREMENTS The Developer shall do each and all of the following at its cost and expense: A. Manner of Periormance: Cause all construction obligations of the Developer referred to in this Development Agreement to be carried out and performed in a good and workmanlike manner, consistent with construction standards in the City; B. Survey Monuments: Properly install metal stakes or pipes marking the corners of all lots that are being resurveyed and recreated pursuant to the terms of any Certified Survey Map submitted to, and approved by, the City; C. Utilities: Install all electrical, telephone, cable, and gas utilities underground in accordance with all ordinances of the City. It shall be the responsibility of the Developer to contract to have installed and pay for all costs associated with private utilities required by the City; D. Permits: Provide and submit to the City, valid copies of. any and all governmental (other than issued by the City) permits relating to the construction of the Project. No occupancy permits shall be issued for the occupancy of aRy-the Building or I portion thereof until such time as final inspections are completed and passed by the building, fire and rescue and zoning inspectors. and construction of all Developer Improvements and Dedicated Improvements is substantially completed; E. Impact Fees: Pay all required impact, connection and other similar fees; F. Noise: Make every effort to minimize noise, dust, and similar disturbances; G. Debris: Keep the Property free from litter and debris during all phases of grading and construction. The Developer shall promptly remove and lawfully dispose of all tree trunks, limbs, brush and other rubbish and debris from the Development Project. Tree trunks and other organic matters shall not be backfilled on the Property. Off-site sediment deposits occurring as a result of a storm event shall be cleaned up by the end of the next work day following the occurrence. All other off-site sediment deposits 10 QBMKE\6229489.1 . occurring as a result of construction activities shall be cleaned up at the end of the work day; H. Stop Orders. The Developer shall promptly comply with any stop orders issued pursuant to applicable provisions of any City ordinance because the design, location, materials, workmanship or other performance are not in accordance with the provisions of this Development Agreement or any ordinance of the City; and I. Inspection. The City shall have the right at any time and from time to time to enter upon the Property to perform any non-invasive testing and inspections deemed necessary or appropriate by the City. SECTION V. PAYMENT OF COSTS, INSPECTION AND ADMINISTRATIVE FEES . Upon request of the City and unless included as a Project Cost for the District, the Developer shall promptly and fully pay on behalf of the City or reimburse to the City, all legal, consulting, engineering, planning and other fees, costs, expenses and disbursements paid or incurred by the City in connection with the Property, including without limitation, costs of creating the District; the negotiation and preparation of this Development Agreement and all other documents and agreements relating to the Property; all permits, licenses, grants and other approvals for the Property requested by the Developer or required by the City; and the development of the Property by the Developer. Any such amounts which are not paid in full by the Developer when and as requested by the City, may, in addition to all other rights and remedies available to the City, be collected by the City as a special assessment on the Property to this Development Agreement. The City ::1ckno'Nledges that all of the ::1bovc are currently reflected as Project Cost for the Dictrict. SECTION VI. CONDITIONS OF ALL OBLIGATIONS OF THE PARTIES UNDER THIS DEVELOPMENT AGREEMENT A. City Conditions. As a condition to each and all of the covenants, agreements and other obligations of the City under this Development Agreement, all of the following shall occur, in addition to all other requirements and conditions set forth in this Development Agreement: (i) All representations and warranties of the Developer set forth in this Development Agreement and in all agreements expressly referred to herein shall at all times be true, complete and correct; . (ii) All covenants and obligations of the Developer under this Development Agreement are duly and substantially performed, observed, satisfied and paid, when and as required herein; (Hi) No event of default has occurred, or with the giving of notice or lapse of time would occur; 11 QBMKE\6229489.1 . . . (iv) The Joint Review Board has approved the District, and the Wisconsin Department of Revenue has certified the District. (v) The City has obtained the City Financing as required to fully fund the obligations of the City under this Development Agreement. (vi) The Developer has completed the purchase of the Property no later than December 31, 2007. (vii) The Developer and GE have signed a lease in form and content that is acceptable to the City. (vii!) There is no material adverse change in the financial condition of the Developer which might impair its ability to perform its obligations under this Development Agreement. B. Developer Condition. As a condition to each and all of the covenants, agreements and other obligations of the Developer under this Development Agreement, the Developer shall have completed the purchase of the Property no later than December 31, 2007, and the fully signed lease is approved by City, Developer and Developer's Lender. SECTION VII. INDEMNIFICATIONS The Developer will indemnify and hold harmless the City, its governing body members, officers, agents, including the independent contractors, consultants and legal counsel, servants and employees thereof (hereinafter, for purposes of this paragraph collectively referred to as the "Indemnified Parties") against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any breach of any warranty, covenant or agreement of the Developer under this Development Agreement, and the development of the Property; provided that the foregoing indemnif!cation shall not be effective for any willful acts of the Indemnified Parties. Except for any willful misrepresentation or any willful misconduct of the Indemnified Parties, the Developer will protect and defend the Indemnified Parties from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from the action or inaction of the Developer (or other persons acting on its behalf or under its direction or contrql) under this. Development Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership and operation of the Development Project and the Property. All covenants, stipulations, promises, agreements and obligations of the City contained herein shall be deemed to be covenants, stipulations, promises, agreements and obligations of the City and not of any governing body, member, officer, agent, servant or employee or the City. All covenants, stipulations, promises, agreements and obligations of the Developer contained herein shall be deemed to be covenants, stipulations, promises, agreements and obligations of the Developer and not of any of its officers, owners, agents, servants or employees. 12 QBMKE\6229489.1 SECTION VIII. DEFAUL T/REMEDIES . A. following: Events of Default. An event of default ("Event of Default") is any of the 1. A failure by the Developer to cause substantial completion of the Development Project or any part thereof to occur pursuant to the terms, conditions and limitations of this Development Agreement; a failure of either party to perform or observe any and all covenants, conditions, obligations or agreements on its part to be observed or performed when and as required under this Development Agreement within thirty (30) days of notice of said failure to the Developer; 2. A failure by the Developer to pay any amount or when and as due to the City within ten (10) days of notice of such failure to the Developer; 3. The Developer becomes insolvent or is the subject of bankruptcy, receivership or insolvency proceedings of any kind; or 4. The dissolution or liquidation of the Developer, or the commencement of any proceedings therefore. . B. Remedies on Default. Whenever an Event of Default occurs and is continuing, the non-breaching party may take anyone or more of the following actions without waiving any rights or remedies available to it: 1. Immediately suspend its performance under this Development Agreement from the time any notice of an event of default is given until it receives assurances from the breaching party deemed adequate by the non-breaçhing party, that the breaching party will cure its default and continue its due and punctual performance under this Development Agreement; or . 2. Commence legal or administrative action, in law or in equity, which may appear necessary or desirable to enforce performance and observance of any obligation, agreement or covenant of the breaching party under this Development Agreement. 3. Perform or hav~ performed all necessary work in the event the non- breaching party determines that any Event of Default may pose an imminent threat to the public health or safety, without any requirement of any notice whatsoever. In the event of a default by the Developer, the City may use and apply all or any portion of the grant to be provided to the Developer under Section 111.8. above to cure such default and in such event, the Developer shall no longer be deemed to be in default of this I Development Agreement OOt--the City's obligation to provide such grant to the Developer shall be extinguished to the extent it is used by the City. . c. No Remedy Exclusive. No remedy or right conferred upon or reserved to a party in this Development Agreement is intended to be exclusive of any other remedy 13 QBMKE\622 94 89.1 . . . or remedies, but each and every such right and remedy shall be cumulative and shall be in addition to every other right and remedy given under this Development Agreement now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default 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. D. No Implied Waiver. In the event any warranty, covenant or agreement contained in this Development Agreement should be breached by a party and thereafter waived by the other, 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. E. Aareement to Pay Attorneys' Fees and Expenses. Whenever any Event of Default occurs and a party incurs attorneys fees, court costs and other such expenses for the collection of payments due or to become due or for the enforcement or performance or observance of any obligation or agreement on the part of the Developer etRef-herein contained, the prevailing party ~shall be reimbursed the actual attorneys fees, court costs and other such expenses incurred by such prcvailing party the City. SECTION IX. PERMITTED DELAYS Whenever performance is required of any party hereunder, such party shall use all due diligence to perform and take all necessary measures in good faith to perform; provided, however that if completion of performance shall be delayed at any time by reason of acts of God, war, civil commotion, riots, work stoppages arising out of collective bargaining strikes, unavailability of materials or damage to work in progress by reason of fire or other casualty or causes beyond the reasonable control of a party (other than financial reasons). then the time for performance as herein specified shall be appropriately extended by the time of the delay actually caused and a reasonable time thereafter acceptable to the City to remobilize. However,. in order for a party to be. entitled to make a claim for any such delays. such party must give the other party written notice of the conditions or events giving rise to the delay and the number of days claimed to be due to such conditions or events within fifteen (15) days from the date of the occurrence of the condition or event giving rise to the delay. The provisions of this Section shall not operate to excuse the Developer or the City from the prompt payment of any and all monies such party is required to pay under this Development Agreement. SECTION X. ASSIGNMENT The Developer shall not transfer, sell or assign the Initial Parcel or assign this Development Agreement or its obligations hereunder without the express prior written consent of the City until the Developer has fully complied with its obligations under Section" of this Development Agreement. Any such consent requested of the City prior thereto may be withheld, conditioned or delayed for any commercially reasonable reason. 14 QBMKE\ 622 94 89.1 . . . SECTION XI. BINDING This Development Agreement shall be binding upon the parties hereto and their respective representatives, successors and assigns, and any and all future owners of the Property or any portion thereof, and their respective heirs, representatives, successors and assigns. SECTION XII. AMENDMENTS This Development Agreement may only be modified or amended by written agreement duly authorized and signed by the City and all owners of the Property. SECTION XIV. ADDITIONAL PROVISIONS A. Conflicts of Interest. No member of any governing body or other official of the City ("City Official") shall have any financial interest, direct or indirect, in this Development Agreement, the Property or the Development Project, or any contract, agreement or other transaction contemplated to occur or be undertaken thereunder or with respect thereto, unless such interest is disclosed to the City and the City Official fully complies with all conflict of interest requirements of the City. No City Official shall participate in any decision relating to this Development Agreement which affects his or her personal interest or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. No member, official or employee of the City shall be personally liable to the City for any event of default or breach by the Developer of any obligations under the terms of this Development Agreement. B. Incorporation by Reference. All exhibits and other documents attached hereto or referred to herein are hereby incorporated in and shall become a part of this Development Agreement. C. No Implied Approvals. Nothing herein shall be construed or interpreted in any way to waive any obligation or requirement of the Developer to obtain all necessary approvals. licenses and permits from the City in accordance with its usual practices and procedures, nor limit or affect in any way the right and authority of the City to approve or disapprove any and all plans and specifications, or any part thereof, or to impose any limitations, restrictions and requirements on the development, construction and/or use of the Development Project as a condition Qf any such approval, license or permit; including, without limitation, requiring any and all other development and similar agreements. D. Time of the Essence. Time is deemed to be of the essence with regard to all dates and time periods set forth herein or incorporated herein. E. Headings. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Development Agreement. 15 QBMKE\ 622 94 8 9.1 . . . F. Notices. Any notice required hereunder shall be given in writing, signed by the party giving notice, personally delivered or mailed by certified or registered mail, return receipt requested, to the parties' respective addresses as follows: To the City: City of Muskego, Wisconsin W182 S8200 Racine Avenue Muskego, WI 53150 Attn: Mayor With a copy to: With a further copy to: Brian G. Lanser and Warren S. Blumenthal Quarles & Brady LLP 411 East Wisconsin Avenue #2040 Milwaukee, WI 53202 To the Developer: Ace Industrial Properties, Inc. Attention: Jason Steiner 6055 South Pennsylvania Avenue Cudahy, WI 53110 With a copy to: George B. Erwin, III Schmidt, Darling & Erwin 2300 North Mayfair Road Suite 1175 Milwaukee, WI 53226 Notice shall be deemed delivered (a) in the case of personal delivery, on the date when personally delivered; or (b) in the case of certified or registered mail, on the third business day after the date when deposited in the United States mail with sufficient postage to effect such delivery. c. Entire Agreement. This document 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. D. Governing Law. This Development Agreement shall be construed in accordance with the internal laws of the State of Wisconsin. E. Further Assurances. The Developer will at any time, and from time to time at the written request of the City, sign and deliver such other documents and 16 QBMKE\6229489.1 . . . instruments requested by the City as may be reasonably necessary or appropriate to give full effect to the terms and conditions of this Development Agreement. F. Counterparts. This Development Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original. G. Recordina. The parties hereto agree that the City may record this Development Agreement or a Memorandum of this Development Agreement on the record title to the Property or any portion thereof. The Developer shall upon request of the City execute and deliver any such Memorandum or other document in connection with such recording. H. Covenant Runnina With the Land. The covenants and agreements contained in this Development Agreement shall be deemed to be covenants running with the land and shall be binding upon and inure to the benefit of the Developer and all successive owners of the Property, and any portion thereof, and their respective heirs, representatives, successors and assigns. I. Exhibit Lists. The Exhibits referred to herein, consist of the following: Exhibit A - Legal Description of the Property Exhibit B - Legal Description of the Initial Parcel Exhibit C - Developer Improvements Exhibit D -- Dedicated Improvements Exhibit E -- Permitted Exceptions to Title of the Dedicated Improvements Exhibit F -- City Improvements Exhibit G -- Anticipated Debt Service Schedule [SIGNATURES CONTINUED ON NEXT PAGE] 17 QBMKE\6229489.1 . . . DATED as of the day, month and year first above written. The Developer: Ace Industrial Properties, Inc. a Wisconsin corporation By: Name: Title: STATE OF WISCONSIN ) ) COUNTY OF ) ss. Personally came before me this - day of , 2007 the above- named to me known to be the person(s) who executed the foregoing instrument and acknowledged the same. Notary Public. County, Commission: 18 QBMKE\ 62294 8 9.1 . . . City: City of Muskego a Wisconsin municipal corporation By: Name: John Johnson Title: Mayor By: Name: Janice Moyer Title: City Clerk STATE OF WISCONSIN) ) COUNTY OF ) ss. Personally came before me this - day of , 2007 the above- named John Johnson and Janice Moyer to me known to be the Mayor and City Clerk of the City of Muskego, Wisconsin, respectively, who executed the foregoing instrument and acknowledged the same. Notary Public, County, Commission: 19 QBMKE\622 94 89.1 . . . EXHIBIT A - LEGAL DESCRIPTION OF PROPERTY JOB NO. 15005 October 9,2007 LEGAL DESCRIPTION PROPOSED CSM: Being all of Outlot 1 Certified Survey Map NO.1 0174 and a part of the Northeast Y4, Southwest Y4 and Southeast Y4 of the Northeast Y4 of Section 3, Township 5 North, Range 20 East, in the City of Muskego, Waukesha County, Wisconsin, more particularly described as follows: Commencing at the North Y4 corner of said Section 3; thence South 00019'58" East, along the West line of said Northeast Y4, a distance of 660.16 feet to the Northwest corner of said Outlot 1 and the POINT OF BEGINNING; thence North 88045'40" East, along the North line of said Outlot 1, a distance of 742.44 feet; thence North 00026'48" West, a distance of 610.04 feet to the South right of way line of College Avenue; thence North 88045'40" East, along said South right of way, a distance of 309.99 feet to the West line of Parcel 1 CSM No. 592; thence South 01014'20" East, along said West line, a distance of 270.00 feet; thence North 88045'40" East, along the South line of said Parcel 1, a distance of 150.02 feet to the '/IIest right of way line of Moorland Road; thence along the following three course along said West right of way line: thence South 08041'40" West, a distance of 126.58 feet to the point of non tangency of a curve concave easterly whose radius point bears South 86057' 18" East, a distance of 1790.42 feet; then.ce southeasterly along said curve to the left, through a central angle of 30037'56", an arc distance of 957.22 feet; thence South 27035'16" East, a distance of 235.81 feet; thence South 00032'09" East, a distance of 799.01 feet to the South line of said Northeast Y4; thence South 88017'31" West, along said South line, a distance of 746.40 feet to the East line of Oakridge Glen subdivision; thence North 00026'48" West, along said East, a distance of 302.08 feet to the North line of said Oakridge Glen. subdivision; thence South 88017'32" West, along said North and the South line of said Outlot 1, a distance of 745.40 feet to the West line of said Northeast Y4; thence North 00019'58" West, along said West line and the West line of said Outlot 1, a distance of 1433.69 feet to the POINT OF BEGINNING. Parcel contains 2,410,527 square feet or 55.34 acres. 20 QBMKE\ 622 94 8 9.1 . . . EXHIBIT B - lEGAL DESCRIPTION OF THE INITIAL PARCEL [TO BE ATTACHED] 21 QBMKE\ 622 94 8 9.1 . . . EXHIBIT C - DEVELOPER IMPROVEMENTS [TO BE ATTACHED] Developer Improvements, that the Developer will install once the developer receives proper approvals for construction plans, will include all sewer, water, storm, and road improvements onsite. Onsite consists of any improvements within the legal description found in Exhibit A herein. An actual map of the exact Developer improvements will be included in the final developer's agreement before the City signs this document. 22 QBMKE\ 622 94 89.1 . . 8 EXHIBIT D - DEDICATED IMPROVEMENTS [TO BE ATTACHED] Dedicated Improvements will include all those improvements constructed by the Developer onsite that require dedication to the City of Muskego for long term asset and maintenance needs and will include various sewer, water, storm, and road improvements. Onsite consists of any improvements within the legal description found in Exhibit A herein. An actual map of the exact Dedicated improvements will be included in the final developer's agreement before the City signs this document. 23 QBMKE\6229489.1 . . 8 EXHIBIT E - PERMITTED EXCEPTIONS TO TITLE OF THE DEDICATED IMPROVEMENTS [TO BE ATTACHED] 24 QBMKE\6229489.1 . . . EXHIBIT F - CITY IMPROVEMENTS [TO BE ATTACHED] City Improvements, that the City will formally bid once the developer receives proper approvals for construction plans, will include all sewer, water, storm, and road improvements offsite of the developer improvements. Offsite consists of any improvements outside of the legal description found in Exhibit A herein. An actual map of the exact City improvements will be included in the final developer's agreement before the City signs this document. 25 QBMKE\ 622 9489.1 . . . \1 1~' i y,~, ./SoY ,,' f'~" '" (",\- RESOLUTION AUTHORIZING DEVELOPMENT AGREEMENT f ",,;J' WITH ACE INDUSTRIAL PROPERTIES, INC. ,i/ (' )j\ " " ... COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #220-2007 / WHEREAS, Ace Industrial Properties, Inc, (the "Developer") is the owner ,øf the real estate in the City described on Exhibit A attached hereto (the "Property"); and /' t I WHEREAS, the Developer intends to develop the Property, includjffg by constructing on a portion of the Property an office/warehouse building (the "Developm,?f1t Project"); and WHEREAS, the Property is located within the boundaries /óf the City's proposed Tax Incremental District No. 10 ("TID No. 10") which is being creat,tJ by the City for the purpose of promoting mixed-used development in the City; and I / WHEREAS, the development of the Property and the cotitruction of the Development Project will further the purposes of TID NO.1 0 and is in the bestttiterests of the City; and " / WHEREAS, in order to obtain for the City and its residents the benefits to be derived from the construction of the Development Project, the c.itÝ proposes to enter into a Development Agreement with the Developer in substantially:the form attached hereto as Exhibit B (the "Development Agreement"); .' NOW, THEREFORE, be it resolved by the Q6mmon Council of the City of Muskego, Waukesha County, Wisconsin, that the Development}Xgreement is approved, and the Mayor and City Clerk are authorized to execute the Developm.ent Agreement, for and on behalf of the City, with such insertions therein or changes and Co~[éctions thereto as shall be approved by the Mayor and City Clerk. /,' DATED THIS " .' ,r DAY Or/"/ // {', (- / Deferred: 11/13/07 ,2007, SPONSORED BY: Ald. Noah Fiedler This is to certify that this is a true and accurate copy of Resolution #220-2007 which was adopted by the Common Council of the City of Muskego. Clerk-Treasurer