2-ATTACHMENT A-D.pdf

ATTACHMENT A – Parcel Report

Attachment B – Appraisal* (to be posted soon)

Attachment C - Model Development Agreement

DEVELOPMENT AGREEMENT

DEVELOPMENT OF

THIS AGREEMENT is made as of the day of , 20_, by and between MILWAUKEE COUNTY (the "County"), , a limited liability company (hereinafter “Developer”) and (hereinafter “ ”) who is the managing member of and the guarantor of its obligations hereunder.

RECITALS

On or about the date herewith, the Developer is acquiring certain property in the

City of Milwaukee, Milwaukee County, Wisconsin as more fully described on Exhibit A attached hereto (the "Property") from the County pursuant to a certain Option to Purchase dated , 200_ and attached hereto as Exhibit B (the "Option Agreement"). The Property consists of approximately acres of land and is located .

The parties now desire to enter into this Agreement to set forth the terms and conditions by which the Property will be developed and to establish certain additional covenants and restrictions for the benefit of the Property acquired by the Developer.

AGREEMENT

In consideration of the mutual covenants and agreements contained herein and in the Option Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Definitions. In addition to the words and terms elsewhere defined in this

Agreement, the following words and terms used herein shall have the following meanings:

(a) "Building" means the improvements to be initially constructed by the Developer on the Property in conformity with plans and specifications approved by the County and the City of Milwaukee, all as more particularly described on Exhibit C.

(b) “Community Benefits Reporting” means the records from the

Developer demonstrating its compliance and good faith efforts undertaken with respect to Section 2.4, 2.6, 2.7 and 2.8 of this Agreement. The form and substance of the records (“Community Benefits Records”) will be specified in the Developer’s Compliance Plan.

(c) "Environmental Damages" means all claims, judgments, damages, losses, penalties, fines, liabilities (including strict liability), fees and expenses of defense of any claim and of any settlement or judgment, including without limitation, attorneys' fees and consultants' fees, any of which are incurred at any time as a result of the existence of Hazardous Material upon, about, or beneath the Property or migrating or threatening to migrate to or from the Property, or the existence of a violation of Environmental Requirements pertaining to the Property, including without limitation:

(i) damages for personal injury, or injury to property or natural resources occurring upon or off the Property, foreseeable or unforeseeable, including without limitation, lost profits, consequential damages, interest and penalties, including, but not limited to, claims brought on behalf of employees of the Developer or the County; (ii) diminution in the value of the Property, and damages for the loss of or restriction on the use of or adverse impact on the marketing of rentable or usable space or of any amenity of the Property; (iii) fees incurred for the services of attorneys, consultants, contractors, experts, laboratories and all other fees incurred in connection with the investigation or remediation of such Hazardous Materials or violation of Environmental Requirements, including, but not limited to, the preparation of any feasibility studies or reports or the performance of any cleanup, remedial, removal, containment, restoration or monitoring work required by any federal, state or local governmental agency or political subdivision, or reasonably necessary to make full economic use of the Property or otherwise expended in connection with such conditions; (iv) liability to any third person or governmental agency to indemnify such person or agency for fees expended in connection with the items referenced in this subparagraph.

(d) "Environmental Requirements" means all applicable past, present and future laws, statutes, regulations, rules, ordinances, codes, licenses, permits, orders, approvals, plans, authorizations, concessions, franchises and similar items of all governmental agencies, departments, commissions, boards, bureaus or instrumentalities of the United States, the State of Wisconsin and political subdivisions thereof and all applicable judicial and administrative and regulatory decrees, judgments and orders relating to the protection of human health or the environment, including, without limitation: (i) all requirements, including, but not limited to, those pertaining to best management practices, reporting, licensing, permitting, investigation and remediation of emissions, discharges, releases or threatened releases of Hazardous Material (as defined herein) and (ii) all requirements pertaining to the protection of the health and safety of employees or the public.

(e) "Hazardous Material" means any substance: (i) the presence of which requires investigation or remediation under any federal, state or local statute, regulation, ordinance, order, action or policy; or (ii) which is or becomes defined as a "hazardous waste" or "hazardous substance" under any federal, state, or local statute, regulation or ordinance or amendments thereto, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.

section 9601 et seq.); and/or the Resource Conservation and Recovery Act (42 U.S.C.

section 6901 et seq.); or (iii) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental authority, agency, department, commission, board, agency or instrumentality of the United States, the State of Wisconsin, or any political subdivision thereof; or (iv) the presence of which is on the Property; or (v) which contains gasoline, diesel fuel or other petroleum hydrocarbons; or (vi) which contains polychlorinated bipheynols (PCBs), asbestos or urea formaldehyde foam insulation.

(f) "Project" means the Building, roads, driveways, parking areas, signs, walkways, loading areas, fences and walls, sewer, electrical, gas, water and other utility distribution systems, landscaping, drainage and other improvements to be initially constructed on the Property by or for the Developer in conformity with the approved plans and specifications, all as more particularly described on Exhibit E.

(g) "Request for Proposal" means the Official Notice No. , Request for Proposals, relating to the Property and attached hereto as Exhibit F.

(h) “Material Alteration of the Project” means (a) a 10% (ten percent) variance in the square footage of the project or any material alteration to: (ii) the exterior materials, (b) the general appearance, (c) the scope and use of the project, or (d) the stated intentions of the Project - each of the above as reflected in the most current submitted plans as reflected in Exhibits C, E and G. "Material Alteration of the Project" also means any change to the Compliance Plan, approved by the Milwaukee County Community Business Development Partners ("CBDP") and the County Economic Development and Real Estate Services Division.

2. Development of the Project.

2.1 Construction by the Developer. The Developer shall, at its own cost and expense, cause the construction of the Project on the Property in a good and workmanlike manner and in compliance with all then applicable building codes and ordinances, and Request for Proposal. The Developer represents that the total projected cost of acquiring the Property and constructing the Project thereon shall be as specified on Exhibit H. Construction of the Project on the Property shall be completed substantially in conformity with the plans, specifications, landscape plan, signage plan, drainage plan and parking plan as submitted by the Developer which is attached hereto as Exhibit I, and as approved by the City of Milwaukee (the "Approved Plans") the cover page of which is attached hereto as Exhibit G.

The Approved Plans may be modified from time to time during the course of construction and shall not require the consent of the County except the advance written consent of the County shall be required in the following instances: (a) to the extent that such modifications are a “Material Alteration of the Project” as defined herein or (b) to the extent the Developer is required to obtain approval for such modification by the City of Milwaukee. In the event that County approval is required, the Developer shall not institute such modification until receiving written approval from the County's Director of Economic Development and Real Estate Services. If approval of the County is required, the County shall respond in writing within ten (10) business days of its having been notified of the need for approval. If the County does not notify the Developer on or before said 10th business day of its approval or disapproval, approval shall be deemed to be granted. To the extent necessary to approve or disapprove a Material Alteration of the Project, the County shall be allowed – upon notice to the Developer – a reasonable amount of time beyond 10 business days (which additional time may include the time needed to seek approval by the Milwaukee County Board) to provide its approval or disapproval.

The Developer agrees (i) to commence construction, which shall mean commencement of excavation, of the Project on the Property within days after closing ("Closing") of its acquisition of the Property (the "Project Commencement Date"), (ii) within months after Closing, achieve completion of excavation of the location for the Building and commencement of construction of the foundation (the "Excavation Completion Date"), and (iii) to diligently prosecute construction to completion within months after Closing pursuant to the construction schedule as set forth on Exhibit J (the “Project Completion Date”). The Project Commencement Date and Project Completion Date (as defined on Exhibit J) shall be confirmed by the Developer's Project architect delivering certificates to the County stating that excavation on the Property has been completed and construction of the foundation has commenced or with respect to substantial completion, that the entire Project has been substantially completed. In the event the Developer ceases construction of the Project on the Property, other than due to a Force Majeure Delay, for 60 consecutive days, such event shall be deemed a "Construction Stoppage."

Prior to the execution of this Agreement and Closing, the Developer shall deliver to the County a Performance Deposit (the “Deposit”) in the amount of $50,000. The Deposit shall serve as a security on deposit for the full and complete performance of all of the obligations, agreements and covenants in this Agreement, the Developer’s proposal approved by the Milwaukee County Board of Supervisors and County Executive, the Request for Proposal, and as a guaranty for the completion of the development approved by the City of Milwaukee, which obligations shall be performed in compliance with the other terms and conditions of this Agreement. The Deposit shall be in a form approved in advance in writing by the County. The Deposit shall be returned to the Developer within 10 days after the earlier of (i) the date of substantial completion of the Project as evidenced by a certificate of substantial completion from the Developer’s architect; or (ii) the date a certificate of occupancy is issued, provided the Developer has submitted the proper Community Benefits Records to satisfy its Community Benefits Reporting obligation.

2.2 Condition of Property; Construction of Infrastructure. At Closing, as contemplated by the Option Agreement, the County shall deliver possession of the Property to the Developer in substantially the condition as existed on the date of the Option Agreement but otherwise "AS-IS" (as to physical condition) except as otherwise represented herein or in the Option Agreement. The County shall not be responsible for performing any grading or compaction work with respect to the Property. The Developer is solely responsible for and must make adequate allowance for all excavation and disposal costs necessary for the Project. The Request for Proposal provides additional information regarding the condition of the Property. The Developer shall be solely responsible for all property development costs, including, but not limited to, extension of water and sewer laterals to the Property and the replacement of sidewalks and curb cuts.

Developer hereby releases and disclaims any claim, damage, loss, injury or obligation whatsoever of the County in any way relating to or arising out of the physical condition of the Property, any matters described in this Section 2.2, and/or any material, substance, or contaminant located in, under, upon, or migrating to or from the Property, regardless of the source. Such disclaimer and release shall include any action at law or in equity, whether arising out of contract or tort law.

2.3 General Requirements. The Developer agrees that during

construction it shall use reasonable efforts to (a) cause its contractors working on the Project to remove all waste products and rubbish from the Property and the infrastructure areas related to their work in a manner and time consistent with industry standards, and if any such waste products and rubbish are left on site, it shall be responsible for removing the same, and (b) use reasonable efforts to keep the Property and areas of access thereto in a neat and presentable state.

2.4 Labor Standards. Not applicable.

2.5 Nondiscrimination and Affirmative Action. In construction of the

Project and performance of its duties and obligations hereunder, the Developer shall not discriminate against any employee or applicant for employment (and the Developer shall use reasonable efforts to eliminate any such discrimination by its contractors) based on ancestry, arrest record, conviction record, creed, genetic testing, honesty testing, marital status, membership in the national guard, state defense force or any reserve component of the military forces in the United States or the State of Wisconsin, pregnancy or child birth, sexual orientation, race, color, national origin, age, sex or disability which shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeships. The Developer will post in conspicuous places, accessible to employees, notices setting forth the provisions of the foregoing nondiscriminatory clause. The Developer will strive to implement the principles of equal employment opportunities through an effective affirmative action program, which program shall have as its objective to increase the utilization of women, minorities and handicap persons, and other protected groups in the Developer's employment at the Project for so long as it is located there, and in construction of the Project. The Developer shall cause its contractors and subcontractors and any assignee to comply with this Section 2.5 and Section 2.6 with respect to construction of the Project.

2.6 Workforce Goals – Residential Hiring. The Developer shall commit to a goal of percent of total Project hours (construction and professional services) being allocated to Milwaukee County residents. The Developer’s Compliance Plan will restate this goal, outline the minimum good faith efforts necessary to achieve the goal and specify the reporting requirements of the Developer. Monitoring of this goal by the Developer will be provided through the monthly payroll reporting of contractors and subcontractors. Failure to make good faith efforts to reach this goal could result in the Developer forfeiting all or a portion of its Deposit to the County as liquidated damages and being disqualified from obtaining future contracts with the County.

2.7 Workforce Goals – Apprenticeship and Training Opportunities.

The Developer shall commit to a goal of having percent of all worker hours (construction and professional services) participate in job training or apprenticeship programs. The Developer’s Compliance Plan will restate this goal, outline the minimum good faith efforts necessary to achieve the goal and specify the reporting requirements of the Developer. Participation will be monitored through payroll reports from all contractors and subcontractors, and with the assistance of local organizations.

Failure to make good faith efforts to reach this goal could result in the Developer forfeiting all or a portion of its Deposit to the County as liquidated damages and being disqualified from obtaining future contracts with the County.

3. Defaults and Remedies.

3.1 Events of Default by the Developer. Any one or more of the following events are hereby defined as, declared to be, and constitute an "Event of Default" by the Developer for purposes of this Agreement: (a) a Construction Stoppage (as defined in Section 2.1 hereof) by the Developer, subject to extension for Force Majeure Delays; (b) the Developer fails to commence construction of the Project by the Project Commencement Date, or achieve the Excavation Completion Date, subject to extension for Force Majeure Delays; (c) the Developer falls materially behind in the Construction Schedule subject to Force Majeure Delays; (d) the Developer fails to complete construction of the Project by the Project Completion Date, subject to extension for Force Majeure Delays or (e) the failure of the Developer to perform any other term, condition or covenant to be performed or observed by the Developer, subject to extension for Force Majeure Delays. In the event an Event of Default by the Developer shall occur, the County shall send written notice to the Developer (the

"Default Notice") specifying the nature of the default in detail, and the Developer shall have 30 days after receipt of the Default Notice to cure such Event of Default. In the event that the Developer does not cure such Event of Default within such 30-day period (or such other reasonable time as necessary if such default cannot be cured within 30 days and the Developer, upon receipt of such notice, promptly commences the process of curing such default and diligently and continuously pursues such cure to completion), the County may pursue any available remedy against the Developer, either at law or in equity, including, without limitation, the right to pursue specific performance, collect actual damages for the Developer's failure to perform (including, without limitation, the damages, if any, related to, or arising out of, the infrastructure related to the Property and the cost of financing used to construct such infrastructure, and any guaranty thereof, any costs associated with overtime or additional labor forces in order to timely construct the Project, and other outside fees, including reasonable attorneys' fees). In addition to the other remedies provided for herein, the Developer agrees to pay the County an additional per day payment of $2,000 for each day the Developer is late in achieving the required milestone dates described in Section 3.1(b),

(c) and (d) (the "Late Payments"). These Late Payments shall be made immediately upon demand by the County.

The Developer agrees that damages will not be an adequate remedy at law and that the County shall have the right to an injunction or other judgment of specific performance to enforce any provision in this Development Agreement, the Request for Proposal, the Redevelopment Plan, and the Targeted Business Enterprise sections of the Park East Redevelopment Compact, the City of Milwaukee zoning code, the County ordinances or any other State or Federal law. Venue for such action shall be Wisconsin State Court with venue in Milwaukee County. The County shall be entitled to its reasonable attorneys' fees in any action, in which it prevails, to enforce such provisions, including the actual costs of Milwaukee County Corporation Counsel's office if it is the attorney for the County or reasonable attorney fees for other attorneys that may be hired by the County.

In the case of an Event of Default under Section 3.1(b) hereof, which is not cured by the Developer within 30 days after receipt of a Default Notice, the County may exercise an option to repurchase the Property at a purchase price equal to 85% of the purchase price paid by the Developer for the Property less the option fee paid by the Developer by giving the Developer notice thereof. If the County paid brokerage fees to the Developer’s registered broker at Closing, the amount shall be credited to the County, thereby reducing the 85% repurchase price. In the event that the County exercises its option to repurchase, the Developer shall re-convey the Property to the County within 30 days of receipt of such notice by general warranty deed, free and clear of all liens and encumbrances except those liens and encumbrances described in the warranty deed delivered by the County to the Developer in the Developer's acquisition of the Property plus no monetary encumbrances which do not materially affect the value or use of the Property, utility easements granted by the Developer, and real estate taxes for the year of repurchase, if any, with a customary proration credit to the County for real estate taxes for such year. The Developer shall also execute the applicable Wisconsin Real Estate

Transfer Return, pay all transfer taxes in connection with the transfer and execute a certificate of nonforeign status and other reasonably requested documentation as is customary for similar transfers.

3.2 Events of Default by the County. If the County shall fail to perform any other term, condition or covenant to be performed or observed by the County for more than 30 days after receipt by the County of written notice from the Developer specifying in detail the nature of such failure (or such other reasonable time as is necessary if such default cannot be cured within 30 days and the County, upon receipt of such notice, promptly commences the process of curing such default and diligently and continuously pursues such cure to completion), the Developer may pursue any available remedy against the County at law or in equity including, without limitation, the right to pursue specific performance or injunctive relief and collect actual damages for the County's breach of failure to perform (including reasonable attorneys' fees).

3.3 Rights and Remedies Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times of any other rights or remedies for the same default or any other default by the other party.

3.4 Costs and Attorneys' Fees. In the event any legal or equitable action or proceeding shall be instituted to enforce any provision or agreement contained herein, the party prevailing in such action shall be entitled to recover from the losing party all of its costs including court costs and reasonable attorneys' fees. The prevailing party shall be such party that substantially obtains the relief sought with or without the commencement of litigation.

4. General Provisions.

4.1 Conveyance of the Property. Prior to substantial completion of construction of the Project, the Developer shall not, except as permitted by this Agreement, convey any interest in the Property without the prior written approval of the County, which approval shall not be unreasonably withheld or delayed. This prohibition shall not be deemed to prohibit or restrict leasing to tenants for occupancy, conveying condominium units for occupancy and/or granting any other right to occupy and use any portion or portions of a Building. Further, notwithstanding the foregoing, the Developer may assign its interest in this Agreement to an affiliate of the Developer or an entity of which the Developer or some or all of the members or shareholders of the Developer are members or shareholders. As used in this Section 4.1, "affiliate" means any corporation, limited liability company, limited liability partnership or other entity, which directly or indirectly controls or is controlled or is under common control the Developer. Nothing herein shall be deemed to prohibit, restrict or otherwise limit the Developer from selling, leasing or otherwise transferring the Property or interest therein after substantial completion of construction of the Project on such Property.

Notwithstanding anything to the contrary contained in this Agreement, the Developer reserves the right, at its sole discretion at any time during the term of this Agreement, to join and associate with other individuals or entities in joint ventures, partnerships or otherwise for the purpose of developing the Project subject, however, to the following conditions:

(a) The Developer shall promptly notify the County in writing of the identity of any such additional parties;

(b) The Developer shall remain fully responsible to the County as provided in this Agreement, shall not be released from its obligations hereunder and shall remain the Developer’s managing member; and

(c) Such additional parties shall be deemed approved unless rejected in writing by the County within twenty (20) days after written notice thereof to the County by the Developer. In connection with the County's determination hereunder, the County shall only take into consideration the reputation of any such additional parties, and the County shall not withhold approval unreasonably. Any notice from the County disapproving such additional parties shall specify the reasons therefore.

Notwithstanding any other provision contained herein, nothing herein shall limit, restrict or prohibit the Developer from entering into any mortgage, deed of trust, sale and lease-back or any other form of conveyance or any form of equity or income participation, including but not limited to a partnership or joint venture, required by a lending institution for the purpose of securing a loan to be used for financing the acquisition of the Property, the construction of the Project thereon and any other expenditures necessary and appropriate to develop the Property. The words "mortgage" and "deed of trust" as used herein includes all other appropriate modes of financing real estate acquisition, construction and land development.

4.2 Liens. Until the Project is substantially completed in compliance with the requirements contained herein, the Developer shall take all commercially reasonable steps to prohibit any construction liens to be filed against the Property or the Project thereon.

4.3 Force Majeure. Notwithstanding anything to the contrary

contained in this Agreement, neither the Developer nor the County shall be considered in breach or default of its obligations with respect to the construction of the Project (including the Project Commencement Date, Construction Stoppage or the Project Completion Date) or the construction of any items of the infrastructure, as the case may be, in the event that a delay in the performance of such obligations is due to causes which were beyond its reasonable control, such as adverse weather conditions, strikes, acts of God, acts of a public enemy, acts of any governmental authorities (including the

County in the case of the Developer), fire, flood, epidemics, embargoes or shortages of material from all reasonable sources, which shall not in any event include any economic hardship or delay due to the condition of the economy or real estate market ("Force Majeure Delay"). In the event of a Force Majeure Delay, the time for performance of the affected obligation shall be extended for the period of the Force Majeure Delay;

provided, however, the delayed party shall, within 15 business days after the occurrence of the event causing the Force Majeure Delay, deliver written notice to the other party of the cause thereof. Failure to deliver written notice of such delay (with appropriate back-up documentation) shall constitute a waiver of the delayed party's right to claim an extension of its time period because of the Force Majeure Delay.

4.4 Notices. All notices and demands by either party to the other shall be given in writing and personally delivered or sent by United States certified mail, return receipt requested, postage prepaid, and addressed:

To the County: Celia Benton, Economic Development and Real Estate Services Director

600 N. Plankinton Ave, 6th Floor Milwaukee, WI 53203 with a copy to: , Milwaukee County Corporation Counsel 901 North 9th Street, Room 303 Milwaukee, WI 53233

To the Developer:

with copies to:

Either party may, upon prior notice to the other, specify a different address for the giving of notice. Notices shall be deemed given upon receipt or refusal to accept delivery.

4.5 Rules of Construction. Unless the context clearly indicates to the contrary, the following rules shall apply to the construction of this Agreement:

(a) Words importing the singular number shall include the plural number and vice versa.

(b) The captions and headings herein are solely for convenience of reference only and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect.

(c) Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and masculine genders, and words of the neuter gender shall be deemed and construed to include correlative words of the masculine and feminine genders.

Agreement.

(d) The laws of the State of Wisconsin shall govern this

(e) Since both parties to this Agreement have had adequate opportunity to review and negotiate its terms, in no event shall this Agreement be construed against the drafter.

4.6 Waivers. Waiver by the County or the Developer of any breach of any term, covenant or condition herein shall not be deemed to be a waiver of any future breach of the same or any other term, covenant or condition of this Agreement.

4.7 Severability. Any provision of this Agreement which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof and the remaining provisions hereof shall nevertheless remain in full force and effect.

4.8 Entire Agreement and Amendments. This Agreement, including exhibits, and all documents referenced herein, contains all the covenants and agreements between the County and the Developer relating in any manner to development of the Project and other matters set forth in this Agreement. No prior oral agreements or understandings pertaining thereto shall be valid or of any force or effect, and the covenants and agreements of this Agreement shall not be altered, modified or amended except in writing signed by the County and the Developer and recorded in the office of the Register of Deeds for Milwaukee County. The County and the Developer reserve the right to modify and amend this Agreement without the joinder or approval of any other party.

4.9 Duration of Covenants. The County and the Developer agree that, upon the Developer's request, within thirty (30) days after satisfaction of the applicable Developer's obligations under Article 2 herein, the County shall either concur with such request as evidenced by a recordable Certificate (in which case such unapplied portion of the Deposit shall be returned to Developer), indicating that all such applicable obligations have been satisfied hereunder and that those provisions of this Agreement have been satisfied, or reject such request and state which applicable obligations have not yet been completed.

4.10 Authority. The Developer hereby acknowledges and agrees that it is a validly formed and existing [limited liability company] formed in the State of . The undersigned signatory has the requisite power and authority, statutory and otherwise, to enter into and perform this Agreement pursuant to its terms and conditions without any further notice or consent from any person or entity. Promptly following request by the County, Developer shall deliver copies of its corporate resolution or other authorizing documentation demonstrating that it has the power and authority to enter into this Agreement. The County hereby acknowledges and agrees that the undersigned signatories have the requisite power and authority, statutory or otherwise, to enter into and perform this Agreement, pursuant to its terms and conditions without any further notice or consent from any person or entity. Promptly following request by the Developer, the County shall deliver copies of its corporate resolution or other authorizing documentation demonstrating that is has the power and authority to enter into this Agreement.

4.11 Successors. Except as otherwise expressly provided herein, all of the covenants, agreements, terms and conditions of this Agreement shall run with the Property and inure to the benefit of and be binding upon the County and the Developer and their respective successors and assigns and any party obtaining any interest in the Property after the date hereof, including, without limitation, any condominium unit owner, occupants and/or tenants of the Property. Notwithstanding anything to the contrary contained herein, the right of enforcement of the terms, conditions or covenants of this Agreement to be performed or observed by the Developer is solely vested in the County or any successor entity to the County.

4.12 Independent Contractor. Nothing contained in this Agreement shall constitute or be construed to create a partnership or joint venture between the County or its successors and assigns and the Developer or its successors and assigns. In entering into this Agreement, and in acting in compliance herewith, the Developer is at all times acting and performing as an independent contractor duly authorized to perform acts required of it hereunder. This Agreement does not create the relationship of principal, an agent or of partnership or joint venture or any other association between the County and the Developer, the sole relationship between the County and the Developer being that of a seller and purchaser of land, with certain obligations, covenants and responsibilities described herein.

4.13 Records and Audits. Once per year, upon commercially reasonable notice by the County, the Developer shall allow the County, the Milwaukee County Department of Audit, or any other party the County may name, when and as they demand, to audit, examine and make copies of, excerpts or transcripts from any records or other information directly relating to matters under this Development Agreement. The Developer shall maintain and make available to the County the above-described audit information for no less than three years after conclusion of the obligations and responsibilities of the Developer described herein and required by this Development Agreement.

4.14 Environmental Indemnification.

(a) Conveyance of the Property to the Developer is "AS-IS" and without warranty or representation as to soil, subsoil, Hazardous Material and other environmental conditions. The Developer hereby agrees to indemnify, hold harmless, and defend County from and against any and all liabilities, claims, penalties, forfeitures, and suits, and all reasonable costs and expenses, including the cost of defense, settlement, and reasonable attorney's fees and/or any other Environmental Damages related to, or arising out of, soil, subsoil and environmental conditions arising out of, or in any way connected with the presence of any Hazardous Material on, in, under or migrating to or from the Property, including but not limited to, liability arising out of or in any way connected with the investigation, monitoring or cleanup under any federal, state or local law or regulation or ordinance Environmental Requirements or any Hazardous Material on, in or under or migrating to or from the Property.

(b) The Developer shall be responsible for any required repair, cleanup, remediation or detoxification arising out of any Hazardous Materials brought onto or introduced into the Property or surrounding areas by the Developer, its employees, contractors, agents or guests, and/or Hazardous Materials whose presence pre-exists the inception of the Developer's possession, located in and on the Property, regardless of whether they are discovered or disturbed as a result of the Developer's construction activities on, at or near the Property. The Developer shall indemnify, defend and hold the County harmless from any liability, cost, damage, claim or injury (including reasonable attorney fees) related to, or arising out of, such Developer's obligations, or failure to perform such obligations described above, and any claim, action or damages asserted against the County by any party or governmental agency related to, or arising out of an Environmental Regulation or Hazardous Material at, in, under, or migrating to or from the Property.

The parties acknowledge and agree that environmental conditions and risks were factored into the purchase price of the Property and that the Developer's environmental indemnities benefiting County shall be as broadly and liberally construed as possible so as to provide the maximum protection possible to the County from liability, and the Developer hereby further waives any right to argue that for any reason this indemnification section is ambiguous or confusing or that it should in any way be construed against the County.

(c) Notwithstanding anything else to the contrary herein, the Developer shall be released from its obligations under section 4.14 if (i) the County exercises its option to repurchase pursuant to section 3.1 but only regarding such contamination that existed prior to the Closing or (ii) there is migration of Hazardous Materials from any County owned property to the Property, and such migration of Hazardous Materials is actively caused by the County, but only regarding such contamination actively caused by the County.

4.15 Guaranty. hereby guarantees the performance of all

of the Developer’s obligations hereunder and by the date of execution of this Agreement, shall execute a guaranty in a form approved in writing by the County.

Attachment D - Model Option Agreement

OPTION TO PURCHASE

[PROPERTY ADDRESS]

Milwaukee, Wisconsin

For and in consideration of the sum of Fifty Thousand Dollars ($50,000.00) (“Option Fee”) tendered herewith, Milwaukee County ("County") does hereby grant unto [DEVELOPER NAME] ("Developer") an exclusive Option to Purchase (“Option”) the property at [PROPERTY ADDRESS], Milwaukee, WI (“Property”) and more particularly described in Exhibit A attached hereto, on the following terms and conditions:

1. Purpose. This Option is granted to Developer for the sole purpose of acquiring the Property and constructing a building according to the plans attached as Exhibit B, for use as [Project Use] and installing site improvements in accordance with plans approved by the County. Developer shall be responsible for all site development costs, including, but not limited to, extension of water and sewer laterals to the property line and the provision or replacement of sidewalks and curb cuts.

2. Purchase Price. The purchase price shall be [Purchase Price] ($___________) (“Purchase Price”) payable by certified check or wire transfer at time of closing, subject to the customary deductions and prorations.

3. Term. The Option shall be in effect for a period of twelve (12) months (“Option Period”), commencing with the date the County executes this Option. The Option Period may be extended at the option of the Economic Development and Real Estate Services Director for Milwaukee County for up to two (2) additional six (6) month periods. Developer must request the extension in writing and submit a check for $25,000 for each renewal (“Renewal Fee”) and a progress report on efforts to prepare final construction plans and obtain firm financing. Each six-month extension will result in an increase in the Purchase Price by $12,500, in accordance with County Board Resolution 08-30(a)(d). In the event the Economic Development and Real Estate Services Director refuses to extend the Option, Developer may petition the County Board and County Executive for such extension.

4. Manner of Exercise. If Developer decides to exercise this Option, Developer shall exercise by delivering to the County three copies of a signed Development Agreement (“Agreement”), the final version of which shall be negotiated by County and Developer, but that shall be substantially similar to the sample attached as Exhibit D. The Agreement shall define Developer’s development obligations (“Project”). This Agreement shall require that Developer shall:

a. Close on the Property (“Closing”) on or before expiration of the Option Period as extended;

b. Submit final construction plans, including detailed landscape plans (“Final Plans”) and evidence of firm financing without contingencies. Final Plans must be consistent with the Preliminary Plans, including aesthetic design, quality of building materials and use, except as otherwise agreed by the parties. Any Material Alteration, as defined in the Agreement, must be approved by the Economic Development and Real Estate Services Director. All of the foregoing must be satisfactory to the County in form and substance prior to Closing;

c. Commence construction of the Project within sixty (60) days following Closing and be complete within eighteen (18) months (or other time period dictated by the development) following commencement. All construction must be according to approved Final Plans.

e. Execute a Compliance Plan (“Compliance Plan”) with the Department of Administrative Services – Economic Development and Real Estate Services Division and the Office of Economic Inclusion (OEI) department of Milwaukee County prior to Closing. The Compliance Plan includes goals and minimum good faith efforts for Targeted Business Enterprise (TBE) participation, residential hiring, and workforce development (apprenticeship/job training). Developer’s goal for TBE participation is at least 17% of professional services Project costs and 25% of construction Project costs. Developer shall meet with OEI prior to closing and shall consult the OEI website for County certified TBE contractors. Developer’s goal for residential hiring is _____ percent of the hours worked on the Project being performed by Milwaukee County residents. Developer’s goal for workforce development is _____ percent of the hours worked utilizing job training and apprenticeship programs.

f. Submit at Closing a Performance Deposit in the amount of fifty thousand and No/100ths Dollars ($50,000.00) (“Deposit”). The Deposit shall not be applied against the purchase price, but shall be held by the County to guarantee completion of the project. The Deposit shall be returned to the Developer without interest upon successful completion of the Project in accordance with terms of the Agreement and the conditions expressed herein, as certified by the Economic Development and Real Estate Services Director on behalf of County. All or part of the Deposit may be retained if Developer fails to complete the Project as agreed in the Agreement.

After execution, a memorandum of the Agreement (“Memorandum of Agreement”) will be recorded with the Register of Deeds and the Property title encumbered until successful completion of the Project and submittal of required TBE, Residential Hiring and Workforce Development reports as certified by the Economic Development and Real Estate Services Director on behalf of County at which time the parties shall execute and record a termination of the Agreement.

5. Additional Closing Terms.

a. Option and Renewal Fee Credit. The Option and Renewal Fees shall be credited toward the Purchase Price only if Developer closes on the Property. The Option and Renewal Fees are non-refundable except if the County is unable to deliver marketable title.

b. Restrictions on Assignment. This Option shall not be assigned by Developer without the written consent of the County. Any assignment of the Option by the Developer in violation of the terms of this Option shall result in termination of the Option by the County and retention of the Option and Renewal Fees as liquidated damages.

c. Adjustments and Prorations. At Closing, County and Developer will make the following adjustments and apportionments of expenses with respect to the Property:

(i) Prorations. General real estate taxes for the current tax year, if any, will be pro-rated at Closing. Special assessments of record, if any, shall be paid by the Developer.

(ii) Title Insurance. County shall pay for the cost of a standard form of owner’s title insurance policy (“Title Policy”). Developer will pay for the cost of extended coverage and any endorsements to the Title Policy which Developer obtains from the Title Company (as hereinafter defined) and for the costs of any lender’s title insurance policy.

(iii) Transfer and Recording Taxes. County is exempt from paying real estate transfer taxes, per s. 77.25(2), Wis. Stats., but shall pay the costs of recording the Deed (as hereinafter defined) and ½ of any escrow closing costs charged by the Title Company for escrows requested by the County. Developer shall pay ½ of the escrow closing costs charged by the Title Company.

(iv) Other Costs. All other costs will be allocated in accordance with the customs prevailing in similar transactions in the greater metropolitan area in which the Property is located.

d. Title and Survey.

(i) During the Option Period, Developer shall obtain: (1) a title commitment on the Property (“Title Report”) from a title company chosen by Developer (“Title Company”) together with such endorsements thereto as Developer may reasonably require; and (2) an ALTA/ACSM survey of the Property (“Survey”).

Developer shall review the Title Report and Survey and satisfy itself as to all title and survey matters affecting the Property during the Option Period.

(ii) At Closing, County shall convey to Developer, by general warranty deed, fee simple title to the Property, subject, however, to the Permitted Exceptions (as defined herein). The “Permitted Exceptions” shall consist of: (1) the lien of current general real estate taxes, which are not yet due and payable as of the Closing; (2) zoning and all other applicable laws and governmental regulations which affect the Property;

(3) any matters shown on the Survey; (4) acts done or suffered by, through or under, or judgments against, Developer; (5) any recorded easements, restrictions or other documents or matters (including matters which relate to the Survey) shown on the final form of pro forma title policy issued by the Title Company at Closing; and (6) the Development Agreement.

(iii) Notwithstanding the foregoing, no mortgages, other loan security instruments, construction liens, judgment liens or other financial encumbrances encumbering all or part of the Property (“Financing Liens”) shall be deemed to be Permitted Exceptions. At or before the Closing, County shall cause the Property to be released from all Financing Liens created by County and shall cause any such Financing Liens not created by Developer but which encumber the Property to be bonded and insured over to the reasonable satisfaction of Developer and the Title Company.

Developer may use proceeds from the Purchase Price to obtain such release.

(iv) At Closing, County shall (1) execute Title Company’s customary form of owner’s title affidavit(s) and indemnities as needed to delete any pre-printed exceptions from the Title Policy, but in any event acceptable to County in its reasonable discretion, and (2) execute such other instruments as are customarily and reasonably required by the Title Company for compliance with tax reporting or disclosure requirements and which are acceptable to County in its reasonable discretion.

e. Closing. Closing shall be held at the office of the Title Company or such other place mutually acceptable to the parties on the earlier of: (i) the date which is thirty (30) days after the date Developer exercises the Option; or (ii) at such other time as the parties may mutually agree (“Closing” or “Closing Date”). If the date determined for Closing as provided above falls on a day other than a business day, the Closing Date shall be postponed to the next following day which is a business day. As used herein, the term “business day” shall mean any day other than Saturday, Sunday or a holiday for the State of Wisconsin or national banks. The parties shall cooperate and use reasonable efforts to affect an escrow style closing or in such other fashion as may be reasonably acceptable to the parties and settlement agent that will not require personal attendance at Closing.

f. Closing Deliveries.

(i) County’s Closing Documents. On the Closing Date, County will execute and/or deliver to the Title Company or cause to be executed and/or delivered the following documents in form and content acceptable to Developer (collectively, “County Closing Documents”):

(1) Deed. A General Warranty Deed conveying the Property to Developer subject to only the Permitted Exceptions (“Deed”).

(2) Title Documents. Such other documents in form and substance reasonably acceptable to County and as may be reasonably required by Title Company in order to issue the Title Policy required by this Option, including, without limitation, any seller’s affidavit and “gap” undertaking.

(3) Closing Statement. A closing statement in form and substance acceptable to both County and Developer, and consistent with the terms, provisions and…