agreement between the city of kenosha, wisconsin a

AGREEMENT

BETWEEN

THE CITY OF KENOSHA, WISCONSIN

A Municipal Corporation

AND

THE KENOSHA TRANSIT COMMISSION

OF THE CITY OF KENOSHA, WISCONSIN

A Municipal Transit Commission

AND

ICAP DEVELOPMENT LLC

A Wisconsin Limited Liability Company

AND

HERZING UNIVERSITY, LTD.

A Wisconsin Non-Stock Corporation

This Agreement effective as of the last date of execution is entered into between the City

of Kenosha, Wisconsin, a municipal corporation duly organized and existing under the laws of the

State of Wisconsin with principal offices located at 625 52nd Street, Kenosha, Wisconsin 53140

("City"), the Kenosha Transit Commission of the City of Kenosha, Wisconsin, a municipal transit

commission duly organized and existing under the Code of General Ordinances for the City of

Kenosha and Section 66.1021 of the Wisconsin Statutes with principal offices located at 4303 39th

Avenue, Kenosha, Wisconsin 53143 ("Transit Commission"), and ICAP Development LLC, a

Wisconsin limited liability company with principal offices located at 833 E. Michigan Street, Suite

540, Milwaukee, Wisconsin 53202 ("ICAP"), and Herzing University, Ltd., a Wisconsin non-stock

corporation with principal offices located at W140 N8917 Lilly Road, Menomonee Falls,

Wisconsin 53051 ("Herzing"), collectively referred to as the Parties.

WITNESSETH:

Whereas, Herzing is a private nonprofit university accredited by the Higher Learning

Commission currently operating at nine campus locations in seven states, one of which is currently

located at 4006 Washington Road in the City of Kenosha; and

Whereas, Herzing offers its students an opportunity to earn a graduate degree,

undergraduate degree, diploma, or a certificate from more than thirty programs in technology,

business, healthcare, nursing and public safety; and

Whereas, Herzing's continued growth has resulted in the need for Herzing to relocate and

expand its existing Kenosha campus; and

Common Council Agenda Item L.2.

Whereas, as part of the relocation and expansion process Herzing has considered a number

of potential locations in Wisconsin as well as outside of Wisconsin; and

Whereas, Herzing and the City agree that the pairing of Herzing's students and graduates

with the amenities available in downtown Kenosha are mutually beneficial to Herzing and the

City; and

Whereas, Herzing's emphasis on and continued expansion of its nursing and healthcare

programs will complement the City's healthcare community; and

Whereas, Herzing's decision to locate its campus to the currently vacant former home of

the Kenosha News at 5800 7th Avenue represents not only a multi-million dollar investment in

renovations to the former Kenosha News site, but also a long term commitment to revitalizing

Kenosha's downtown as part of the Kenosha Downtown Vision; and

Whereas, in consideration for Herzing's decision to locate its campus in downtown

Kenosha and in consideration for the financial commitment by Herzing to locate in downtown

Kenosha and to improve and occupy a now vacant building, the City and the Transit Commission

have agreed to provide certain assistance as more particularly described in this Agreement; and

Whereas, in consideration for Herzing's commitment to the expansion of its student body

population, staff and faculty as more particularly described in this Agreement, the City and the

Transit Commission have agreed to provide certain assistance as more particularly described in

this Agreement.

Now, Therefore, in consideration of the foregoing recitals and the undertakings 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 ICAP

ICAP makes the following representations and warranties which the City and the Transit

Commission may rely upon in entering into this and all other agreements with ICAP and upon

which the City and the Transit Commission may rely in granting all approvals and permits for the

Project and in executing this Agreement and performing its obligations hereunder:

A. ICAP is a duly organized and existing limited liability company in current status under the

laws of the State of Wisconsin.

B. The execution, delivery and performance of this Agreement and the consummation of the

transactions contemplated hereby have been duly authorized and approved by ICAP, and

no other or further acts or proceedings of ICAP are necessary to authorize and approve the

execution, delivery and performance of this Agreement and the matters contemplated

hereby. This Agreement, and the exhibits, documents and instruments associated herewith

and made a part hereof, have been duly executed and delivered by ICAP and constitute the

legal, valid and binding agreement and obligation of ICAP, enforceable against ICAP 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.

C. There are no lawsuits filed or pending, or to the knowledge of ICAP, threatened against

ICAP that may in any way jeopardize or materially and adversely affect the ability of ICAP

to perform its obligations hereunder.

SECTION II. MUTUAL REPRESENTATIONS AND WARRANTIES

Herzing makes the following representations and warranties which the City and the Transit

Commission may rely upon in entering into this and all other agreements with Herzing and upon

which the City and the Transit Commission may rely in granting all approvals and permits for the

Project and in executing this Agreement and performing its obligations hereunder:

A. Herzing is a duly organized and existing non-stock corporation in current status under the

laws of the State of Wisconsin.

B. The execution, delivery and performance of this Agreement and the consummation of the

transactions contemplated hereby have been duly authorized and approved by Herzing, and

no other or further acts or proceedings of Herzing are necessary to authorize and approve

the execution, delivery and performance of this Agreement and the matters contemplated

hereby. This Agreement, and the exhibits, documents and instruments associated herewith

and made a part hereof, have been duly executed and delivered by Herzing and constitute

the legal, valid and binding agreement and obligation of Herzing, enforceable against

Herzing 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.

C. There are no lawsuits filed or pending, or to the knowledge of Herzing, threatened against

Herzing that may in any way jeopardize or materially and adversely affect the ability of

Herzing to perform its obligations hereunder.

The City and the Transit Commission make the following representations and warranties

which Herzing may rely upon in entering into this and all other agreements with the City and the

Transit Commission and performing its obligations hereunder:

A. The execution, delivery and performance of this Agreement and the consummation of the

transactions contemplated hereby have been duly authorized and approved by the City

and the Transit Commission, and no other or further acts or proceedings of the City and

the Transit Commission are necessary to authorize and approve the execution, delivery

and performance of this Agreement and the matters contemplated hereby. This

Agreement, and the exhibits, documents and instruments associated herewith and made a

part hereof, have been duly executed and delivered by the City and the Transit

Commission and constitute the legal, valid and binding agreement and obligation of the

City and the Transit Commission, enforceable against the City and the Transit

Commission in accordance with their respective terms.


SECTION III. UNDERTAKINGS OF ICAP

A. Description of Project. ICAP has acquired title to the parcel of real estate formerly owned

by Kenosha News located at 5800 7th Avenue, Kenosha, Wisconsin, identified as Tax

Parcel No. 12-223-31-481-012 ("Real Estate") on December 17, 2019. ICAP shall provide

evidence of the acquisition of the Real Estate to the City Administrator within five (5)

business days of the acquisition. ICAP shall enter into a lease agreement with Herzing by

February 28, 2020 with a term of not less than ten (10) years for Herzing's occupancy and

use of the Real Estate for a downtown Kenosha campus. ICAP shall provide written

confirmation that the lease has been executed to the City Administrator. ICAP shall

complete all improvements to the Real Estate to allow Herzing's occupancy and use of the

Real Estate for Herzing's downtown Kenosha campus by October 1, 2020 (the "Project").

Requests by Herzing for reasonable extensions to these deadlines shall be accepted by the

City.

B. Obtain Approvals for Plans and Specifications. ICAP shall: (1) submit all information,

drawings, plans, specifications and other documents and information required by the City

for approval of all plans for any demolition and construction of any improvements to the

Real Estate in accordance with the normal practices and procedures of the City; and (2)

obtain all approvals and permits, including any required zoning, alteration, building and

occupancy permits associated with the Project. As part of any approval process, the City

may, in accordance with its normal permitting and zoning process, impose such

restrictions, covenants and obligations on ICAP as the City deems appropriate for the

Project and intended use of the Real Estate by Herzing. ICAP agrees to pay all license,

permit and other fees required by the City and all other applicable governmental entities.

No work shall be initiated on or in the Real Estate until: (1) the plans and specifications for

such work and improvements have been granted final approval by the City; and (2) all

necessary zoning, alteration, and building permits and approvals for the work are obtained

in accordance with the requirements of the City and the Code of General Ordinances for

the City of Kenosha.

C. Compliance with Codes, Plans and Specifications. The Project and the use of the Real

Estate shall be in compliance with all approved plans and specifications, and all applicable

laws, ordinances, rules and regulations of all governmental authorities having jurisdiction

over the Project. The acceptance of this Agreement and the granting of any approvals and

permits by the City shall not obligate the City to grant any variances, exceptions or

conditional use permits or approve any construction the City determines not to be in

compliance with City ordinances or the requirements of any other applicable governmental

authority.

D. Use and Operation of the Real Estate. The Real Estate is being improved for lease to

Herzing for use as Herzing's downtown Kenosha campus. ICAP shall improve and lease

the Real Estate to Herzing for such purpose, and for no other purpose. ICAP acknowledges

that ICAP operates as a for profit entity. ICAP and Herzing agree that the Real Estate shall

remain fully taxable for ad valorem tax purposes, including but not limited to, real and

personal property taxes, and will not be subject to any exemption or exception to taxation

for a minimum of ten (10) years from the date of the City issuance of a final Certificate of


Occupancy to Herzing ("the Taxability Covenant"). This restriction will be included in a

deed restriction recorded with the Kenosha County Register of Deeds, and ICAP shall be

responsible for recording the deed at its own expense. The deed restriction shall run with

the land and shall be enforceable by the City against ICAP and ICAP's successors, assigns,

successors in title, and any tenants, including Herzing. In the event a court finds the

Taxability Covenant is not valid or enforceable or if for any reason the Taxability Covenant

is terminated, then the owners of the Real Estate exempt from the payment of real and/or

personal property taxes shall make a payment in lieu of taxes to the City as required from

time to time by the City, in an amount not to exceed the amount of taxes that would be due

if the Real Estate was taxable.

SECTION IV. UNDERTAKINGS OF HERZING

A. Kenosha Downtown Campus. Herzing shall enter into a lease agreement with ICAP by

February 28, 2020 with a term of not less than ten (10) years for Herzing's occupancy and

use of the Real Estate for a downtown Kenosha campus, the Project. Herzing shall provide

written confirmation that the lease has been executed to the City Administrator. Herzing

shall obtain a final Certificate of Occupancy from the City allowing for Herzing's

occupancy and use of the Real Estate by October 1, 2020. Requests by Herzing for

reasonable extensions to these deadlines shall be accepted by the City.

B. Obtain Approvals for Plans and Specifications. Herzing shall: (1) submit all information

required by the City for approval of all plans and specifications for the Project in

accordance with the normal practices and procedures of the City; and (2) obtain all required

permits and approvals, including occupancy permits, for the Project and Herzing's

occupancy and use of the Real Estate.

C. Compliance with Codes, Plans and Specifications. The Project and Herzing's use of the

Real Estate shall be in compliance with all approved plans and specifications and all

applicable laws, ordinances, rules and regulations of all governmental authorities having

jurisdiction over the Project and Herzing's occupancy and use of the Real Estate. The

acceptance of this Agreement and the granting of any approvals and permits by the City

shall not obligate the City to grant any variances, exceptions or conditional use permits or

approve any improvements, occupancy or use of the Real Estate the City determines not to

be in compliance with City ordinances or the requirements of any applicable governmental

authority.

D. Use and Operation of the Project. The Real Estate is being improved for lease to Herzing

for use as Herzing's downtown Kenosha campus. Herzing shall occupy and use the Real

Estate for such purpose, and for no other purpose. Herzing acknowledges that Herzing is a

private nonprofit university. Herzing agrees that Herzing's occupancy and use of its Real

Estate shall remain fully taxable for ad valorem tax purposes for a minimum of ten (10)

years, including but not limited to, real property taxes, and will not be subject to any

exemption or exception to taxation for a minimum of ten (10) years from the date of the

City issuance of a final Certificate of Occupancy to Herzing (the "Taxability Covenant"),

other than Herzing’s right to seek exemption for personal property. This restriction will be

included in a deed restriction recorded with the Kenosha County Register of Deeds, and

ICAP shall be responsible for recording the deed at its own expense. The deed restriction


shall run with the land and shall be enforceable by the City against ICAP and ICAP's

successors, assigns, successors in title, and any tenants, including Herzing. In the event

Herzing should apply for an exemption from real and/or personal property taxes with

respect to the Real Estate after the expiration of ten (10) years from the date of the City

issuance of a final Certificate of Occupancy to Herzing, Herzing shall be obligated to

continue providing the parking structure security monitoring to the City pursuant to Section

IV. H. of this Agreement.

E. Student Body Performance Requirement. Herzing currently has a student body population

at its existing Kenosha campus of 600 students. Herzing shall achieve a student body

population at the Kenosha downtown campus of 700 students, including Online students,

at the end of five (5) years from the date of the City issuance of a final Certificate of

Occupancy to Herzing for its use and occupancy of the Real Estate. Herzing shall provide

the City Administrator a detailed annual accounting of the enrolled student body

population, including the number of enrolled Online students, by academic program. The

annual accounting shall be provided by Herzing within thirty (30) days of the anniversary

date of the City issuance of the final Certificate of Occupancy to Herzing.

F. Staff and Faculty Performance Requirement. Herzing currently employs at its existing

Kenosha campus staff and faculty members consisting of 75 full time and adjunct staff and

faculty members. Herzing shall achieve employment of a combined total of 100 full time

and adjunct staff and faculty members at the end of five (5) years from the date of the City

issuance of a final Certificate of Occupancy to Herzing for its use and occupancy of the

Real Estate. Herzing shall provide the City Administrator a detailed annual accounting of

the number of full time and adjunct staff and faculty members employed by Herzing at its

Kenosha downtown campus, including but not limited to, their employment position/title

and the academic program with which they are affiliated. The annual accounting shall be

provided by Herzing within thirty (30) days of the anniversary date of the City issuance of

a final Certificate of Occupancy to Herzing.

G. Failure to Achieve Performance Requirements. In the event Herzing fails to achieve either

the student body or the staff and faculty member performance requirements set forth in

Sections II. E. and F. above, Herzing upon written demand by the City Administrator shall

pay the City the sum of $87,000.00. In the event Herzing fails to provide the annual

accounting for either the student body population or the staff and faculty members

employed by Herzing set forth in Sections II. E. and F. above, the City shall notify Herzing

in writing and require Herzing to provide the required accounting numbers within thirty

(30) days.

H. Parking Structure Security Monitoring. Herzing shall provide security monitoring of the

City’s planned 356 stall parking structure (“the Parking Structure”) on real estate owned

by the City between 56th and 57th Street and 7th and 8th Avenue in the City of Kenosha (“the

Monitoring Services”). Herzing shall provide the parking structure security monitoring for

a period of five (5) years from the date of the City issuance of a final Certificate of

Occupancy to Herzing for its occupancy and use of the Real Estate. The City, at its own

cost and expense, shall install in the Parking Structure security monitoring equipment and

hardware from the lot line of the Real Estate to the designated monitoring facilities at

Herzing's Kenosha downtown campus. Surveillance provided by the Parking Structure


security monitoring system shall be recorded twenty-four (24) hours per day/seven (7) days

per week at Herzing’s cost and expense. Herzing, at Herzing's cost and expense, shall staff

the parking structure security monitors Monday through Friday from 7:00 AM to 10:00

PM. Herzing shall be permitted to hire third-parties to conduct the Monitoring Services at

Herzing’s expense, and such third-parties shall be bound by the requirements of this

paragraph. Herzing shall provide the City and the Kenosha Police Department with the

contact information for the individual(s) to be contacted to provide access to the parking

structure security surveillance recordings twenty-four (24) hours per day. Surveillance

recordings shall be retained by Herzing for a period of thirty (30) days or longer as may be

required by the City and law enforcement and shall be made available upon request for

inspection and copying at no cost to the City or law enforcement.

SECTION V. UNDERTAKINGS OF THE CITY

A. Grant. In consideration for Herzing's commitment to the City's downtown vision by

relocating to the Kenosha downtown campus, and in consideration for the performance

requirements set forth in Sections IV. E. and F. of this Agreement, the City agrees to

provide Herzing a grant of $87,000.00. The grant shall be paid in two annual installments

of $43,500.00 each. The first annual installment shall be payable on or before December

31st of the year in which the City issues a final Certificate of Occupancy to Herzing for the

occupancy and use of the Real Estate. The second annual installment shall be payable on

or before December 31st of the following year.

B. Light Pole Banners. The City shall permit placement of Herzing University banners on the

existing City light pole brackets located within the public right-of-way adjacent to the Real

Estate. The Herzing University banners and the location thereof shall comply with the Code

of General Ordinances for the City of Kenosha as may be amended from time to time. The

cost of the banners shall be at Herzing's expense. The placement of the banners on the light

poles shall be done by and at the City's expense. Any tattered or damaged banners shall be

removed by the City and promptly replaced at Herzing's expense. The banner design and

size will be approved by the Public Works Committee.

C. Directional Street Signs. The City shall install two (2) directional signs for Herzing

University on 52nd Street between Interstate Highway 94 and Sheridan Road. The City shall

also install one (1) directional sign for Herzing University on Sheridan Road between 52nd

Street and the Kenosha downtown campus. The location of the directional signs shall be

determined by the City Traffic Engineer. The size, shape, color and content of the

directional signs shall be approved by the City Traffic Engineer. The cost of the directional

signs shall be at Herzing's expense. The installation of the directional signs shall be at the

City's expense. The final sign will be approved by the Public Works Committee.

D. Parking Structure Security Monitoring Installation. The City, at the City's cost and expense,

shall install the parking structure security monitoring systems which Herzing will monitor

pursuant to Section IV. H. of this Agreement, including electricity, cameras, lighting and

data transmission. The City, at the City's cost and expense, shall maintain the parking

structure security monitoring systems at the parking structures and from the parking

structures to the lot line of the Real Estate and shall be responsible for updating the security

monitoring systems software at the City's expense.


SECTION VI. UNDERTAKINGS OF THE KENOSHA TRANSIT COMMISSION

A. Surface Parking Lease. The Kenosha Transit Commission agrees to lease to Herzing a total

of one hundred eighteen (118) parking spaces in City parking lot numbers 8 and 16 as

shown on attached Exhibit A. The Lease shall commence upon the City issuance of a final

Certificate of Occupancy to Herzing for its occupancy and use of the Real Estate and shall

terminate upon completion and occupancy of the proposed downtown parking structure to

be constructed by the City on Tax Parcel Nos. 12-223-31-477-002, 12-223-31-477-003,

12-223-31-477-004, and 12-223-31-477-005. The parking spaces shall be leased to

Herzing at no cost to Herzing. The form of the Lease to be executed by the Kenosha Transit

Commission and Herzing is attached as Exhibit B. In the event of any conflict between the

provisions of this Section VI. A. and the Lease, the provisions of the Lease shall control.

B. Downtown Parking Structure Lease. The Kenosha Transit Commission agrees to lease to

Herzing up to a maximum of one hundred thirty (130) parking spaces in the proposed

downtown parking structure to be constructed by the City on the Tax Parcel Nos. set forth

in Section VI. A. above. The lease shall commence upon completion and occupancy of the

downtown parking structure and continue for a term of five (5) years. The number of

parking spaces to be leased during each year of the term of the Lease shall be in increments

of twenty-six (26) with the exact number being agreed to between the parties upon

commencement of the lease and not later than March 1st of each year during the term of

the lease. During the term of the Lease, the rent for the parking spaces shall be a maximum

of $2,600.00 per month consisting of $20.00 per month per parking space for up to a

maximum of one hundred thirty (130) parking spaces. The form of the lease to be executed

by the Kenosha Transit Commission and Herzing is attached at Exhibit C. In the event of

any conflict between the provisions of this Section VI.B. and the lease, the provisions of

the Lease shall control.

SECTION VII. MISCELLANEOUS REQUIREMENTS

ICAP and Herzing shall do each and all of the following at their cost and expense:

A. Manner of Performance. Cause the Project referred to in this Agreement to be carried out

and performed in a good and workmanlike manner, consistent with construction standards

in the City.

B. Permits. Provide and submit to the City, valid copies of any and all governmental agency

permits relating to the Project.

C. Noise. Make every effort to minimize noise, dust, and similar disturbances; and

D. Debris. Have ultimate responsibility for cleaning up debris from the Project. ICAP and

Herzing shall cause the debris to be cleaned up within two business days after receiving a

notice of its presence from the City Director of Public Works. If said debris is not cleaned

up within two business days thereafter, the City will do so at the expense of ICAP and

Herzing.


SECTION VIII. CONDITIONS OF ALL OBLIGATIONS OF THE CITY

AND TRANSIT COMMISSION UNDER THIS AGREEMENT

As a condition to each and all of the covenants, agreements and other obligations of the

City and the Transit Commission under this Agreement, all of the following shall occur, in

addition to all other requirements and conditions set forth in this Agreement:

A. All representations and warranties of the ICAP and Herzing set forth in this Agreement

and in all agreements expressly referred to herein shall at all times be true, complete and

correct;

B. All covenants and obligations of ICAP and Herzing under this Agreement are duly and

substantially performed, observed, satisfied and paid, when and as required herein;

C. No event of default has occurred, or with the giving of notice or lapse of time would occur;

and

D. There is no material adverse change in the financial condition of ICAP and Herzing, which

might impair their ability to perform their obligations under this Agreement.

SECTION IX. INDEMNIFICATIONS

Herzing does hereby agree that it will indemnify, defend and hold harmless the City, and

its officers, agents and employees (hereinafter, for purposes of this paragraph collectively

referred to as the “Indemnified Parties”) against any and all claims, liability, loss, charges,

damages, costs, judgments, settlement expenses and attorney’s fees, which any of them

may hereafter sustain, incur or be required to pay as a result of incidents occurring on the

Premises but limited solely to any actions performed as part of Herzing’s Monitoring

Services, or resulting from Herzing’s failure to perform or observe any of the terms,

covenants and conditions of this Agreement, however, Herzing’s liability shall not exceed

its available insurance coverage as set forth in the separate parking Lease executed with

the City. For the avoidance of any doubt, Herzing’s obligations under this paragraph shall

not apply to claims, liabilities, losses, charges, damages, costs, expenses, or attorney’s fees

caused or resulting from the acts or omissions of the City, or any of its officers, agents or

employees. Upon the filing with the City of a claim for damages arising out of any

incident(s) which Herzing herein agrees to indemnify, defend and hold the City and others

harmless, the City shall notify Herzing of such claim, and in the event that Herzing does

not pay, settle or compromise such claim, then Herzing shall undertake the legal defense

of such claim both on behalf of Herzing and the City. It is specifically agreed, however,

that the City, at its own cost and expense, may participate in the legal defense of any such

claim, but shall have no right to control settlement under circumstances wherein the full

amount of the settlement shall be paid by Herzing and/or its insurers. Any judgment, final

beyond all possibility of appeal, which may be rendered against the City, or its officers,

agents, or employees for any cause for which Herzing is liable hereunder shall be

conclusive against Herzing as to liability and amount of damages. This provision shall


survive expiration or termination of this Agreement to the extent necessary to effectuate its

purpose.

ICAP shall indemnify and hold harmless the City and the Transit Commission, their

governing body members, officers, agents, including their independent contractors,

consultants, legal counsel, servants and employees (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 resulting from any breach of any

warranty, covenant or agreement of ICAP under this Agreement and the Project; 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, ICAP shall jointly and severally 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 ICAP or other persons acting on their behalf or under their direction or control

under this Agreement, or the transactions contemplated hereby or the acquisition,

rehabilitation, installation, ownership and operation of the Project and the Real Estate. All

covenants, stipulations, promises, agreements and obligations of the City and Transit

Commission contained herein shall be deemed to be covenants, stipulations, promises,

agreements and obligations of the City and not of any governing body, commission,

member, officer, agent, servant or employee or the City.

SECTION X. DEFAULT AND REMEDIES

A. Events of Default. An event of default is any of the following:

1. A failure of ICAP and Herzing to perform or observe any and all covenants, conditions,

obligations or agreements on their part to be observed or performed when and as required

under this Agreement.

2. ICAP and Herzing become insolvent or the subject of bankruptcy, receivership or

insolvency proceedings of any kind.

3. The dissolution or liquidation of either ICAP and Herzing, or the commencement of any

proceedings therefor.

B. Remedies on Default. Whenever an Event of Default occurs the City and the Transit

Commission, as the case may be, may take any one or more of the following actions:

1. Immediately suspend their performance under this Agreement from the time any notice

of an Event of Default is given until they receive assurances from ICAP or Herzing, as the

case may be, deemed adequate by the City and the Transit Commission that ICAP and

Herzing will cure such default and continue their due and punctual performance under this

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 ICAP and Herzing under this Agreement.

3. In the case of bankruptcy, receivership or insolvency proceedings of any kind relating

to ICAP and Herzing or foreclosure proceedings involving the Real Estate, the successor

entity(ies), mortgage and/or lienholder (each, a “Successor”) will become a successor to

this Agreement and be bound by its terms and conditions. Any changes to the terms and

conditions of this Agreement will not be permitted without the express prior written

consent of the City and the Transit Commission whose consent for the specific purpose of

this paragraph shall not be unreasonably withheld.

4. The City agrees that any lender to ICAP and Herzing, providing financing in connection

with the Project, including the holders of any secured debt, shall have the right to cure any

default hereunder, and the City shall accept any such cure on behalf of the defaulting party.

C. No Remedy Exclusive. No remedy or right conferred upon or reserved to the City and the

Transit Commission in this 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 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

Agreement should be breached by ICAP and Herzing and thereafter waived by the City,

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

by any Party to this agreement, the prevailing party may recover its costs and reasonable

attorneys’ fees to enforce its contractual rights.

SECTION XI. 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 and the Transit Commission. 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 prompt payment of any and all monies required to be paid under this Agreement.

SECTION XII. ASSIGNMENT

ICAP and Herzing shall not assign or transfer this Agreement without the prior written

consent of the City and Transit Commission. Any unauthorized assignment or transfer shall

constitute an Event of Default under this Agreement. Any assignment or transfer shall be

conditioned upon the assignee or transferee entering into a written Agreement with City and the

Transit Commission through which the assignee or transferee agrees to be bound by all of the

terms, conditions, and obligations of this Agreement. No assignment or transfer shall relieve ICAP

or Herzing of any obligations under this Agreement in the event of breach or default by the

assignee or transferee. No assignment or transfer shall be inconsistent with the terms of this

Agreement. The assignee or transferee shall have all rights, privileges, and obligations as granted

ICAP and Herzing as the case may be under this Agreement.

SECTION XIII. BINDING

This Agreement shall be binding upon the Parties hereto and their respective

representatives, successors, assigns, and successors in title.

SECTION XIV. AMENDMENTS

This Agreement may only be modified or amend by written agreement duly authorized and

signed by all the Parties hereto.

SECTION XV. ADDITIONAL PROVISIONS

A. 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 Agreement.

B. No Implied Approvals. Nothing herein shall be construed or interpreted in any way to

waive any obligation or requirement of ICAP and Herzing to obtain all necessary approvals

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 construction and/or use of the Project as a condition of any such

approval or permit.

C. 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.

D. Headings. Descriptive headings are for convenience only and shall not control or affect

the meaning or construction of any provision of this Agreement.


E. Notices. Any notice required to be given in this Agreement by any of the Parties is to be

sent by recognized commercial courrier, or by certified mail with return receipt or by

personal service addressed to ICAP, Herzing, the City or the Transit Commission set forth

below. Any Party may designate a different address by delivering, sending, or serving

written notice of such change of address upon the other Parties. Notice shall be effective

as of the date of delivery, if by recognized commercial courrier or if by hand, or mailing if

by certified mail.

If to ICAP: ICAP Development LLC

833 E. Michigan Street

Suite 540

Milwaukee, Wisconsin 53202-5624

Attn: Brian Adamson

If to Herzing: Herzing University, Ltd.

W140 N8917 Lilly Road

Menomonee Falls, Wisconsin 53041

Attn: Erik Parks

If to City: City Clerk/Treasurer

Municipal Building, Room 105

625 52nd Street

Kenosha, Wisconsin 53140

with copies to: City Administrator


625 52nd Street


Office of the City Attorney


625 52nd Street


If to Transit Commission: Director of Transportation

Kenosha Transit

4303 39th Avenue


With copies to: City Administrator


625 52nd Street


Office of the City Attorney


625 52nd Street



F. Entire Agreement. This document and all other documents and agreements expressly

referred to herein contain the entire agreement between the Parties with respect to the

matters set forth herein.

G. Governing Law. This Agreement shall be construed in accordance with the internal laws

of the State of Wisconsin.

H. Further Assurances. ICAP and Herzing will at any time, and from time to time at the

written request of the City or the Transit Commission, sign and deliver such other

documents and instruments requested by the City or the Transit Commission as may be

reasonably necessary or appropriate to give full effect to the terms and conditions of this

Agreement.

I. Counterparts. This Agreement may be executed in any number of counterparts, each of

which shall be deemed to be an original.

Signature pages follow


ICAP DEVELOPMENT LLC

A Wisconsin Limited Liability Company

BY: _________________________________

Date: ________________________________


HERZING UNIVERSITY, LTD.

A Wisconsin Non-Stock Corporation

BY: ________________________________

Erik Parks, CFO

Date: _______________________________

_


THE CITY OF KENOSHA, WISCONSIN

A Wisconsin Municipal Corporation

BY: ________________________________

JOHN M. ANTARAMIAN, Mayor

Date: _______________________________

BY: ________________________________

MATT KRAUTER, City Clerk/Treasurer

Date: _______________________________


THE KENOSHA TRANSIT COMMISSION

OF THE CITY OF KENOSHA, WISCONSIN

BY: ___________________________________

ANTHONY KENNEDY, Chairperson

Kenosha Transit Commission

Date: __________________________________

BY: ___________________________________

NELSON OGBUAGU, Director

Department of Transportation

Date: __________________________________

DRAFTED BY:

William K. Richardson

Assistant City Attorney

625 52nd Street, RM 201


Phone: 262-653-4170

Fax: 262-925-5933

[email protected]


mailto:[email protected]

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