Loading...
CCR2013018-TID 10 Development Agreement Northrn Gear_Agreement DEVELOPMENT AGREEMENT Document Number Document Title Recording Area Name and Return Address Brian Lanser Quarles & Brady LLP 411 E. Wisconsin Avenue Suite 2040 Milwaukee, WI 53202 2169.993.010 Parcel Identification Number (PIN) QB\19465568.3 THIS DEVELOPMENT AGREEMENT is made and entered into as of the _____ day of _____, 2013, by and between Northern Gear, LLC, a [Wisconsin] limited liability company (the “Developer”) and the City of Muskego, a Wisconsin municipal corporation (the “City”). RECITALS: WHEREAS, the Developer has an accepted offer on a parcel of property legally described on Exhibit A attached hereto (the “Property”) and plans to develop the Property by undertaking a development project (the “Development Project”) consisting of construction of the site improvements described on Exhibit B attached hereto (the “Developer Improvements”) and the construction of an office/warehouse building initially containing approximately 96,000 total square feet (the “Building”); 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 November 27, 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. 219-2007 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, the Property is located within the District and the Development Project described herein is in accordance with the TIF Project Plan; QB\19465568.3 2 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 will reimburse the Developer for the construction of certain of the Developer Improvements to the Property and various other incentives 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. The Developer’s business is a CNC machining company with many CNC machines that require moving to the City . This cost will be quite high due to the weight of the machines and intricacies surrounding them. Without the moving expense the company could not move to the City. The Property requires extensive land disturbance and grading to maximize the full potential and tax increment. Without the site development expense the Developer could not move to the City and could not maximize the potential for tax revenue on the Property; WHEREAS, this agreement defines an incentive as a grant of money for performing development actions that benefit the City’s TIF 10 and overall tax base; 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 limited liability company in current status under the laws of the State of Wisconsin. QB\19465568.3 3 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 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 obtained 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 information, 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; (ii) obtain all approvals necessary therefor within the earliest commercially reasonable time thereafter; and (iii) 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 QB\19465568.3 4 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 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 compliance 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 accordance 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 maintenance and erosion control ordinances 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 July 31, 2013, and substantially complete construction of the Building with a minimum cost (inclusive of land and soft costs but excluding the cost of the Developer Improvements) of not less than Six Million Dollars ($6,000,000.00) as soon as practicable but in no event later than September 30, 2014. For purposes of this Development Agreement, the term “substantial completion” shall mean the issuance by QB\19465568.3 5 the City of an occupancy permit for the Building and the Developer and the City have entered into any agreements required 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 B (the “Developer Improvements”). The Developer shall complete construction of the Developer Improvements as soon as practicable but in no event later than September 30, 2014. All work performed by the Developer on the Developer 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. SECTION III. UNDERTAKINGS OF THE CITY A. Incentive to the Developer. The incentive to the Developer is anticipated to be a total of $825,000 to reimburse the Developer for the cost of moving CNC machines to the Property (“Moving Expenses”), Developer Improvements, and QB\19465568.3 6 stormwater improvements that are part of the Development Project. The stormwater incentive requirements of this project shall not exceed $75,000. The stormwater incentive is required for reimbursal to the Developer for either the construction of a regional stormwater pond that services the Developer’s site and a few other parcels in TID 10 OR in the event that doesn’t work out, for inline water storage on the Developer parcel. It is important to note that the $75,000 for stormwater costs are not considered direct developer’s incentives if the regional pond option is utilized as the stormwater pond is a cost for three parcels in TID 10 to enable those parcels the ability to be pad- ready and in order to maximize the tax base and building area of those parcels. 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 Moving Expenses or necessary and appropriate costs of the construction of the Developer Improvements, and have been paid in full by 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 for all work performed and materials supplied in connection with the Moving Expenses and Developer Improvements, and all other such information requested by the City. When the Developer has obtained title to the Property and building permits [for the Building and the Developer Improvements] are approved and issued the City will disburse Eight Hundred Twenty-Five Thousand Dollars ($825,000.00) to the Chicago Title Company (the “Title Company”). These funds are to be held by the Title Company pursuant to the terms of an escrow agreement to be entered into between the City and the Title Company and used to pay the Developer an incentive (the “Incentive”) in an amount not to exceed Eight Hundred Twenty-Five Thousand Dollars ($825,000.00), of which the amount of up to Five Hundred Fifty Thousand Dollars ($550,000.00) is to partially reimburse the Developer for the costs and expenses for site development through construction of the Developer Improvements, the amount of up to Two Hundred Thousand Dollars ($200,000.00) is to partially reimburse the Developer for Moving Expenses, and the amount of up to Seventy-Five Thousand Dollars ($75,000.00) is to partially reimburse the Developer for regional or onsite stormwater pond expenses. The Incentive is to be paid to the Developer by the Title Company as actual costs are incurred by the Developer and after paid invoices, lien waivers for all work performed and materials supplied in connection with the Developer Improvements, and all other such information requested by the City are received and approved by the City in accordance with the usual procedures and standards of the City. The City shall approve the invoices (or notify the Developer of any objections to the invoices) within thirty (30) days after receipt of the invoices by the City. If there is a balance of monies from the original $825,000 that goes unused at the conclusion of the Development Project the Title Company shall return the balance to the City. B. City Financing and Security. (i) City Financing. The City may use existing sources or possibly new bond anticipation notes and/or other notes and bonds (“City Financing”) which the City determines to be necessary or appropriate to finance and/or refinance the costs of QB\19465568.3 7 the obligations of the City under this Development Agreement. It is intended that any monies used, whether from existing City sources or City Financing, shall be paid from tax increments (“TIF Revenues”) generated from the Building and other improvements to be constructed on the Property by the Developer. (ii) Developer Payments. In each year after substantial completion of the Building, if the TIF Revenue generated by the Property is less than $70,000, the Developer shall pay to the City the difference between $70,000 and the amount of TIF Revenue generated by the Property. Each such payment (a “Developer Payment”) shall be made by the Developer within thirty (30) days after notice is given to the Developer by the City that a Developer Payment is due. (iii) Special Assessments. In the event the Developer has not timely paid such Developer Payment in full, then the City may collect the amount of the Developer Payment by special assessment levied on the Property, 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 Property or any portion thereof acknowledge and agree that special benefits are conferred on the Property by the City, and 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. (iv) Termination of Developer Payment Obligations. The obligation of the Developer to make Developer Payments and the right to the City to levy special assessments for unpaid Developer Payments shall terminate when the aggregate amount of TIF Revenue generated by the Property exceeds the amount of the Incentive paid to the Developer plus interest paid by the City on any City Financing. SECTION IV. MISCELLANEOUS REQUIREMENTS The Developer shall do each and all of the following at its cost and expense: A. Manner of Performance: 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 QB\19465568.3 8 Project. No occupancy permits shall be issued for the occupancy of the Building or 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 are 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 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. 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; (iii) No event of default has occurred, or with the giving of notice or lapse of time would occur; QB\19465568.3 9 (iv) The City has obtained the City Financing as required to fully fund the obligations of the City under this Development Agreement; and (v) 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. SECTION VI. 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 indemnification 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 control) 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. SECTION VII. DEFAULT/REMEDIES A. Events of Default. An event of default (“Event of Default”) is any of the following: 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. The Developer becomes insolvent or is the subject of bankruptcy, receivership or insolvency proceedings of any kind; or QB\19465568.3 10 3. 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 any one 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-breaching 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 have 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 incentive to be provided to the Developer under Section III.B. above to cure such default and in such event, the Developer shall no longer be deemed to be in default of this Development Agreement but the City’s obligation to provide such incentive 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 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. Agreement 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 other QB\19465568.3 11 herein contained, the prevailing party shall be reimbursed the actual attorneys fees, court costs and other such expenses incurred by such prevailing party. SECTION VIII. 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 IX. ASSIGNMENT The Developer shall not transfer, sell or assign the Property 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 this Development Agreement. Any such consent requested of the City prior thereto may be withheld, conditioned or delayed for any commercially reasonable reason. SECTION X. 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 XI. 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 XII. 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 QB\19465568.3 12 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 of 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. 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: Brian G. Lanser Quarles & Brady LLP 411 East Wisconsin Avenue #2040 Milwaukee, WI 53202 To the Developer: Northern Gear Attention: Dan Roskopf 5801 West Franklin Drive Franklin, WI 53132 QB\19465568.3 13 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. G. 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. All prior development agreements between the Developer and the City with respect to the Property are superseded by this Development Agreement, and neither the Developer nor the Property will be subject to such prior agreements. H. Governing Law. This Development Agreement shall be construed in accordance with the internal laws of the State of Wisconsin. I. 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 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. J. Counterparts. This Development Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original. K. Recording. 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. L. Covenant Running 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. M. Exhibit Lists. The Exhibits referred to herein, consist of the following: Exhibit A – Legal Description of the Property and Map Exhibit B – Developer Improvements [SIGNATURES CONTINUED ON NEXT PAGE] QB\19465568.3 14 DATED as of the day, month and year first above written. The Developer: Northern Gear, LLC By: Title: STATE OF WISCONSIN ) ) ss. COUNTY OF __________ ) Personally came before me this ____ day of _____________, 2013 the above- named ______________________________________________________________ to me known to be the person(s) who executed the foregoing instrument and acknowledged the same. Notary Public, ______________ County, Commission: QB\19465568.3 15 City: City of Muskego a Wisconsin municipal corporation By: Kathy Chiaverotti Mayor By: Sharon Mueller City Clerk STATE OF WISCONSIN ) ) ss. COUNTY OF __________ ) Personally came before me this ____ day of _____________, 2013 the above- named Kathy Chiaverotti and Sharon Mueller 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: QB\19465568.3 EXHIBIT A – LEGAL DESCRIPTION OF PROPERTY All of Lot 2 of Certified Survey Map 10668 V102/333 and redivision of Lot 3, Lot 4 & part of Lot 2 of Certified Survey Map 10531 and vacated right-of-way of Bridgeway Court and Commerce Drive and ALL OF LOT 4 of Certified Survey Map 10605 all of which are located in part of the Southwest Quarter (SW 1/4) and Southeast Quarter (SE 1/4) of the Northeast Quarter (NE 1/4) of Section 3, Township 5 North, Range 20 East, in the City of Muskego, Waukesha County Wisconsin, containing approximately 8.7 Acres, QB\19465568.3 EXHIBIT B – DEVELOPER IMPROVEMENTS