HomeMy WebLinkAboutDevelopment Agreement- Aviation Plaza Project 3Development Agreement
Document Number I Document Title
Development Agreement between the City of Oshkosh, Wisconsin, a Wi
municipal corporation (the "City"), and Oshkosh Refurb, Inc., a Wisconsin
liability company (the "Developer")
DOC#1802027
NATALIE STROHMEYER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
10/25/2019 01:43 PM
RECORDING FEE: 30.00
PAGES: 28
Name and Return Address
City Attorney's Office
913-2310-0401
913-2310-0402
913-2310-0403
Parcel Identification No.
2175 S Koeller St Parcel ID No. 913-2310-0401
Lot 1 of Certified Survey Map Number 3521 Recorded as Document Number 947777, Winnebago County Register of
Deeds
2185 S Koeller St Parcel ID No 913-2310-0402
Lot 2 of Certified Survey Map Number 3521 Recorded as Document Number 947777, Winnebago County Register of
Deeds
0 S Koeller St Parcel ID No. 913-2310-0403
Lot 1 of Certified Survey Map Number 5964 Recorded as Document Number 1410416, Winnebago County Register of
Deeds.
Drafted By:
Lynn Lorenson
Oshkosh, WI54903-1130
RECEIVED
NOV - 5 2019 J
CITY CLER.:'S OFFICE
C121
TAX INCREMENTAL DISTRICT NO.37
DEVELOPMENT AGREEMENT
(AVIATION PLAZA PROJECT)
This Development Agreement (the "Agreement") is made thi§�eday of September,
2019 (the "Effective Date"), by and between the CITY OF OSHKOSH, WISCONSIN, a
Wisconsin municipal corporation (the "K: "), and OSHKOSH REFURB, INC., a Wisconsin
limited liability company (the "Developer").
RECITALS
WHEREAS, the City has established Tax Incremental District No. 37 (the "District") as a
district in which at least fifty percent (50%) of the property within the District is in need of
rehabilitation or conservation work, as defined in Wis. Stat. Sec. 66.1337 (2m)(a), and in which
certain costs incurred for redevelopment of the District may be reimbursed from property tax
increment as provided by State law; and
WHEREAS, Developer is under a contract to purchase a parcel of real property located
within the District which is more particularly described on Exhibit A attached hereto (the
"Developer Property"); and
WHEREAS, Developer, together with Rogan Stores Oshkosh, LLC ("Rogan's') and
Masters Oshkosh, LLC ("Masters") as the owners of all of the parcels within the District, intend
to redevelop the District by (i) constructing a 35,600 square foot Mineshaft restaurant and family
entertainment center, (ii) remodeling a 62,435 square foot Extreme Customs, LLC, automotive
facility consisting of retail, office, installation, and warehouse space, and (iii) installing certain
common and separate infrastructure and site improvements, all in accordance with applicable
City ordinances and City -approved plans (the "Project"); and
WHEREAS, to promote such development, the City created the District to assist in the
financing of the costs of certain improvements, development incentives, and other costs
associated with the ownership and development of properties located in the District; and
WHEREAS, Developer would not undertake the development of its portion of the Project
(as more specifically defined below, the "Developer Project") but for (i) its reliance upon the
Developer receiving tax increment financing to assist in the funding of a portion of Developer's
Project, (ii) each of Rogan's and Masters also undertaking the development of their respective
portions of the Project, and (iii) each of Rogan's and Masters receiving tax increment financing
to assist them in the funding of their portions of the Project; and
WHEREAS, the City is authorized to enter into contracts necessary and convenient to
implement the purpose of a Tax Incremental District, including the ability to provide
development incentives and cash grants to owners, lessees, or developers of land located within
the District; and
WHEREAS, the uses of the Developer Property and the District contemplated by this
Agreement are necessary and desirable to serve the interests of the City and its residents by
t07509076.D0CX1} 20960413.4
expanding the tax base of the City, providing additional development and employment
opportunities, and providing a financing mechanism to expand and acquire necessary
infrastructure, all consistent with the purpose of a Tax Incremental District under
Section 66.1105, Wisconsin Statutes; and
WHEREAS, based upon the City's desire to redevelop the District and to obtain the
economic benefits to be generated from the Project, the City is willing to enter into this
Agreement.
NOW THEREFORE, in consideration of the recitals, the terms and conditions contained
in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
DEFINITIONS.
For purposes of this Agreement, the following terms shall have the following
meanings:
A. Agreement. "Agreement" means this document and all of its component
parts and exhibits.
B. Affiliate. "Affiliate" means any entity majority owned and controlled by,
in control of, or under common control with Developer or any entity of which Developer is a
subsidiary or which is a shareholder of Developer. An Affiliate includes, but is not limited to, an
entity with which Developer merges or into which Developer consolidates, or which acquires all
or substantially all of the common stock or assets of the Developer.
C. Available Tax Increment. "Available Tax Increment" means an amount
equal to ninety percent (90%) of the annual gross Tax Increment revenues actually received and
retained by the City which are generated by the District and improvements and personal property
therein in the immediately preceding calendar year.
D. City Contribution. "City Contribution" means payments to be provided
from the City to the Developer from the Available Tax Increment pursuant to the terms of this
Agreement, in a total principal amount not to exceed the amount of Reimbursable Project Costs
(as that term is defined below), together with interest at the rate of 5.25% commencing on the
date of issuance of the City MRO.
E. City MRO. "City MRO" means the Municipal Revenue Obligation issued
by the City to the Developer as evidence of the City's limited obligation to pay the City
Contribution, in substantially the form of Exhibit D attached hereto and incorporated herein.
The City MRO shall be issued pursuant to Section 66.0621 of the Wisconsin Statutes, shall not
constitute an indebtedness of the City, and shall be payable, subject to contingencies, solely from
the limited sources and to the extent provided in this Agreement and the City MRO.
{07509076.DOCX.1)
20960413.4
F. Developer Proiect. "Developer Project" means the remodeling of a 62,435
square foot building to include retail, office, installation and warehouse space, together with
associated site improvements.
G. Developer Property. "Developer Property" means the parcel of real
Property described on Exhibit A attached hereto.
H. Developer's Share. "Developer's Share" means twenty-one and 22/100
percent (21.22%), representing the percentage of Available Tax Increment paid each year to
Developer.
1. District. "District" means all of that property, including the Developer
Property, included in Tax Incremental Finance District No. 37 as described in the Project Plan.
J. Grant. "Grant" means that certain Wisconsin Economic Development
Corporation ("WEDC") Idle Sites Grant awarded to the City in the maximum amount of Five
Hundred Thousand Dollars ($500,000.00), to be used to pay certain eligible Project Costs.
K. Payment Dates. "Payment Dates" means November 1 of each year,
commencing on the third November 1 after the Effective Date of this Agreement, up to and
including November 1, 2047.
L. Payment Term. "Payment Term" means the term commencing on the first
day of the third November after the Effective Date of this Agreement and continuing on the same
day of each year thereafter until the first to occur of the following: (i) payment to Developer of
the entire amount of the City Contribution, or (ii) November 1, 2047. For example, for
illustrative purposes only, if the Effective Date is September 1, 2019, the Payment Term would
run from November 1, 2021, through the first to occur of the following: (1) payment to
Developer of the entire amount of the City Contribution; or (ii) November 1, 2047.
M. Proiect Plan. "Project Plan" means the "Project Plan for the Creation of
Tax Incremental Finance District No. 37 in the City of Oshkosh" prepared by Ehlers, Inc. dated
July 2, 2019, which is described on Exhibit B attached hereto and incorporated herein.
N. Project Costs. "Project Costs" means the total of all hard costs and soft
costs to be incurred by Developer, Rogan's, and Masters in constructing the Project, including all
capital expenditures (or expenditures that could be treated as capital expenditures) and
preliminary expenditures (such as architectural, engineering, environmental studies, surveying,
soil testing, attorneys' fees and expenses, and similar costs that are incurred in connection with
the construction of the Project), and all other direct and indirect costs of the development of the
Project.
O. Reimbursable Project Costs. "Reimbursable Project Costs" means the
specific costs to be incurred by Developer with respect to the Developer Project described and
set forth on Exhibit C attached hereto and incorporated herein.
P. Tax Increment. "Tax Increment" has the same meaning as defined in
Section 66.1105(2)(i) of the Wisconsin Statutes.
(07509076.DOCX.1)
20960413A
Q. Tax Increment Law. "Tax Increment Law" means Section 66.1105 of the
Wisconsin Statutes.
INITIAL CONTINGENCY
. The effectiveness of this Agreement is contingent upon Developer acquiring the
Developer Property and the City entering into Development Agreements with each of Developer,
Rogan's, and Masters with respect to the Project. In the event that Developer's acquisition of the
Developer Property and the City's approval of all three (3) Development Agreements have not
occurred on or before September 30, 2019, this Agreement shall be null and void and the parties
shall have no further rights or obligations hereunder.
III. DEVELOPER'S OBLIGATIONS.
A. Developer Project. Developer intends to invest not less than
$5,000,000.00 to acquire, develop, construct, and use the Developer Project.
B. Project Construction. Developer shall commence construction of the
Developer Project on or before December 31, 2019. Once commenced, Developer shall
diligently pursue completion of construction of the Developer Project in accordance with
applicable City ordinances and City -approved plans for the Developer Property so that in any
case construction shall be substantially completed by December 31, 2020.
C. Costs and Expenses The Developer shall be responsible for all costs
related to the Developer Project and any other work to be performed by the Developer under this
Agreement, including all engineering, inspections, materials and labor. Furthermore, Developer
shall be responsible for payment of all City fees including impact fees, building permit fees,
zoning and sign permit fees, electrical and plumbing fees, and all other fees and expenses
charged by the City in connection with the Developer Project.
D. Work Within City Riahts of Way. To the extent that any portion of the
Developer Project requires work within a City right of way, Developer will be solely responsible
for obtaining all required City approvals for such work, for the cost of all right-of-way,
excavation, and other permits necessary to perform such work, and the cost of any letter of
credit, bond, or other security which the City requires to be posted in connection with work
within City rights of way. All such work will be performed in accordance with applicable City
specifications and plans approved by the City's Engineering Department.
E. Verification of Project Costs• Adjustment. Developer shall, upon
completion of the Developer Project and, in any event, prior to March 31, 2021, submit to the
City a complete accounting of its Reimbursable Project Costs, including all invoices and
evidence of payment. As the Reimbursable Project Costs set forth on Exhibit C are based upon
estimates and unapproved plans, the Developer and City recognize that the final Project Costs
are not defined with certainty. Accordingly, to the extent that Developer's verified
Reimbursable Project Costs are less than the amount set forth on Exhibit C, Exhibit C shall be
revised to include such reduced amounts. In the event that Developer's verified Reimbursable
Project Costs are greater than the amount set forth on Exhibit C. Developer may submit a
{07509076.DOCX.1) 4
20960413.4
request to the City to amend this Agreement to increase the amount of the City Contribution, and
City staff will present such request to the City's Common Council.
IV. CITY'S OBLIGATIONS.
A. Grant. The City shall administer the Grant in accordance with the terms of
that certain Redevelopment Agreement by and among the City, Thomas Masters, Rogan Stores
LLC, Phoenix Realty, LLC, and Reilly Real Estate, LLC dated May 13, 2019 and recorded June
12, 2019 with the Winnebago County Register of Deeds as Document No. 1791305 and that
certain Idle Sites Redevelopment Grant Agreement between the WEDC and the City dated June
10, 2019. Developer's anticipated portion of the Grant is $210,088.00, but Developer
acknowledges that the amount of the Grant is based upon Developer, Rogan's, and Masters (i)
collectively incurring sufficient Developer Project Costs which are eligible for reimbursement
under the terms of the Grant, and (ii) securing funds from non-WEDC sources sufficient to meet
the matching funds requirement imposed by WEDC. Developer further acknowledges that
Developer's portion of the amount of the Grant will be reduced if either (i) Developer does not
incur sufficient Developer Project Costs which are eligible for reimbursement under the terms of
the Grant, and/or (ii) Developer, Rogan's, and Masters do not secure sufficient matching funds.
For purposes hereof, the City Contribution constitutes matching funds. Developer further
acknowledges and agrees that to the extent that it receives less than $210,086.00 in Grant funds,
that such shortfall is not a Reimbursable Project Cost and the City Contribution will not be
increased to cover any such shortfall.
B. City Contribution. In each year during the Payment Term, in
consideration of the Developer undertaking its obligations under this Agreement, Developer's
Share of the Available Tax Increment shall, subject to annual appropriations by the City
Common Council, be applied to make payments under this Agreement to pay the Developer the
City Contribution. The City Contribution constitutes eligible Projects Costs within the meaning
of Section 66.1105(2) of the Wisconsin Statutes. The first payment shall not be made until the
first day of the second November after the date of this Agreement provided that there is
Available Tax Increment. Such payments shall be made in accordance with the terms of this
Agreement, as further described in this Section IV.B. and the City MRO. The amount of the
City Contribution shall be equal to the amount of Reimbursable Project Costs, and shall bear
interest at the rate of 5.25% from the date of issuance of the City MRO. The City MRO shall be
issued upon completion of the Project and verification by the City of Reimbursable Project Costs
(and payment thereof) pursuant to Section III.E., above; Provided however, that regardless of
issue date, interest will not begin to accrue on the City Contribution until January 27, 2021. The
City Contribution shall be paid by the City only out of the Available Tax Increment, subject to
the provisions of this Agreement and the City MRO. The City covenants and agrees as follows:
(a) the City Manager or his designated representative shall include the payment of the entire
Available Tax Increment for each year included during the Payment Term in the applicable
budget request recommendation for the following year's budget, (b) if the City's annual budget
does not in any year provide for appropriation of Available Tax Increment sufficient to make the
payment due to Developer in that year, the City will use its diligent, good faith efforts to notify
the Developer of that fact at least thirty (30) days prior to the date the budget is presented to the
City Common Council for final approval, and (c) funds in the special fund of the District
attributable to the Available Tax Increment generated from the District (and all improvements
{07509076.DOCX.1) 5
20960413.4
and personal property thereon) shall not be used to pay any other Project Costs until the City has
applied to the payment due hereunder, in any year, the Available Tax Increment generated by the
District (and all improvements and personal property thereon) that this Agreement provides will
be applied to payment due hereunder.
Developer acknowledges that, subject to the provisions of this Agreement:
(i) all payments of Available Tax Increment are subject to the future annual appropriation of said
amounts by the City Common Council to payment due hereunder; (ii) only the Available Tax
Increment generated by the District (and all improvements and personal property thereon) shall
be used to make payments to the Developer; and (iii) if, on November 1, 2047, the amount of the
Available Tax Increment to be paid under this Agreement proved insufficient to pay the entire
City Contribution, the City shall have no obligation or liability therefor.
The payment of the City Contribution shall be subject to the following
conditions and limitations:
t • On each Payment Date during the Payment Term and subject to the
Provisions of this Agreement, the City shall pay a portion of the City Contribution equal to the
Developer's Share of the amount of Available Tax Increment appropriated by the City Common
Council for the payment due that Payment Term year.
2. The City shall take no action to terminate or dissolve the District
early prior to November 1, 2047, unless the City first pays the outstanding balance due under the
City Contribution, subject to the provisions of this Agreement, including, but not limited to, the
annual appropriation of the City Common Council of such outstanding balance due.
Attached hereto as Exhibit E is the City's projection of revenues and
expenditures for the District over its term, with the City Contribution labeled as "Municipal
Revenue Obligation" thereon. Exhibit E is provided for illustrative purposes only, and
Developer acknowledges that the amounts set forth thereon are estimates only.
C. City Contribution not to be Considered Indebtedness. In no circumstances
shall amount of the City Contribution due Developer hereunder be considered an indebtedness of
the City, and the obligation of the City hereunder is limited to Developer's Share of the
Available Tax Increment which is appropriated by the City Common Council for payment of
such amounts and only to the extent as provided in this Agreement. Amounts due hereunder
shall not count against the City's constitutional debt limitation, and no taxes will be levied for its
payment or pledged to its payment other than the Tax Increment which has been appropriated for
that purpose.
V• APPROVALS AND DEVELOPMENT STANDARDS,
A• Approval of Public Bodies. The Developer shall obtain from the City and
all other appropriate governmental bodies (and all other councils, boards, and parties having a
right to control, permit, approve, or consent to the development and use of the Developer
Property) all approvals and consents necessary for the City to approve the development of the
Developer Property, and any other approvals necessary to utilize the Developer Property for the
Developer Project.
(07509076.DOCX.1)
20960413.4
B. Acceptance of Agreement. The acceptance of this Agreement and
granting of any and all approvals, licenses, and permits by the City shall not obligate the City to
grant any additional approvals, including, but not limited to, variances, exceptions, or conditional
use permits, or approve any building or use the City determines not to be in compliance with the
applicable municipal codes and ordinances of the City. The City agrees to work in good faith,
promptly, and diligently in connection with the issuance or grant of all such approvals, consents,
permits, certificates, and any other documents as may be necessary or desirable in connection
with the development, utilization, and operation of the Developer Property and to act reasonably
and expeditiously and in cooperation with the Developer in connection therewith; it being
understood and agreed that this provision is not intended to limit the rights of the City as more
particularly set forth above or in Article V11I, below.
C. Development Requirements. The Developer shall use the Developer
Property for the Developer Project and in accordance with the provisions of this Agreement, and
all other applicable federal, state, county, and City laws and regulations.
D. Tax Exemption Forbearance. Developer acknowledges that the City is
relying upon the Developer's real property taxes to generate the Available Tax Increment to fund
the City Contribution. As a result, the Developer agrees that during the Payment Term, neither
the Developer nor any existing or future Affiliate or related entity of the Developer (collectively,
"Developer Affiliates") will pursue, assist, support, or be involved in any federal, state, or local,
judicial, legislative, or regulatory action or process that seeks, directly or indirectly, to prohibit,
set aside, or limit the taxability of all or any portion of the Developer Property on any basis
whatsoever, and the Developer for itself and on behalf of the Developer Affiliates, and each of
their respective successors in interest, waives any and all rights thereto. In addition, during the
period of time that commences upon the date of this Agreement and terminates at the end of the
District, neither the Developer Property, the Developer Project nor any part thereof or interest
therein shall be sold, transferred, leased, assigned, gifted, owned, used, or conveyed in any way
to any person, partnership, organization, or entity that is all or partially exempt from federal or
State of Wisconsin income taxes or real or personal property taxes, without the express prior
written consent of the City, which such consent may be withheld in the City's sole and absolute
discretion (collectively, the "Restrictive Covenant"). This Restrictive Covenant shall permit the
City to have enforcement rights. Notwithstanding anything to the contrary contained herein, the
Restrictive Covenant shall automatically terminate upon the conclusion of the Payment Term.
VI. WARRANTIES AND REPRESENTATIONS.
A. The Developer hereby warrants, represents, and covenants to the City:
1. The Developer is a duly organized and existing limited liability
company in the State of Wisconsin and authorized to transact business in the State of Wisconsin.
The sole member of the Developer is Tyler G. Reilly.
1: The execution, delivery, and performance of this 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 or its
member, directors, or officers are necessary to authorize and approve the execution, delivery,
{07509076.DOCX.1) 7
20960413.4
and performance of this Agreement, and the matters contemplated hereby. This Agreement, the
exhibits, documents, and instruments associated herewith and made a part hereof, have, if
applicable, been duly executed and delivered by the Developer and constitute the legal, valid,
and binding agreement and obligation of the Developer, enforceable against the Developer in
accordance with their respective terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally, and by general equitable principles.
lawsuits2. There are no
pending or threatened against the Deve opr orthe Developer P operty that may in anyemat rial
way jeopardize the ability of the Developer to perform its obligations hereunder.
3. The Developer has sufficient funds through euiy
financing sources to continuously operate, maintain, and fulfill the Developer Project. and debt
4. The Developer shall provide, prior to execution of this Agreement,
a (i) a certificate of good standing/current status issued by the appropriate government agency of
the state of the Developer's organization, and (ii) resolutions of the Developer which provide for
who is authorized to sign on behalf of the Developer and that the Developer is duly authorized to
enter into this Agreement and undertake all of the obligations under this Agreement together
with all other agreements, documents, and contracts required to be executed in connection with
the transactions arising out of this Agreement.
B. The City hereby warrants and represents to the Developer that:
1. Subject to the approval of City Common Council, the execution, transactions
delivery, and performance of this Agreement and the consummation of the ansactions
contemplated hereby have been duly authorized and approved by the City, and tr other or
further acts or proceedings of the City or its officials are necessary to authorize and approve the
execution, delivery, and, subject to annual appropriation by the City Common Council,
performance of this Agreement, and the matters contemplated hereby. This
exhibits, documents, and instruments associated herewith an Agreement, the
d made part AgreeAgree have, if
applicable, been duly executed and delivered by the City and constitute the legal, valid, and
binding agreement and obligation of the City, enforceable against the City in accordance with
their respective terms, except as the enforceability thereof may be limited by applicable law and
as is otherwise subject to annual appropriation by the City Common Council.
2. No special assessments or other charges of any kind shall be
assessed or levied against or accrue or come due from the Developer or the Developer Prope
with respect to the Reimbursable Project Costs. rty
CONDITIONS TO/LIMITATIONS ON THE OBLIGATIONS
Notwithstanding anything to the contrary set forth in this Agreement, the
following are conditions to and limitations on each and all of the obligations of the City and the
Developer under this Agreement and the City and the Developer shall not be obligated to
{07509076.DOCX.1) 8
20%0413.4
expend any amounts under this Agreement and may suspend or terminate this Agreement or the
performance of any and all of its obligations under this Agreement, without recourse against the
City or the Developer, if:
A. The Wisconsin Department of Revenue fails to certify all or any portion of
the creation of the District or the Project Plan ("NonCertification"); provided, however, the City
shall first make all reasonable efforts in good faith to cure such NonCertification; or
B. The District is involuntarily terminated or dissolved ("Involuntary
Termination"); provided, however, the City shall first make all reasonable efforts in good faith to
cure such Involuntary Termination.
VIII. DEVELOPER: EVENT OF DEFAULT.
A. Event of Default. An "Event of Default" is any of the following:
1. Failure to Construct the Developer Project. Subject to the terms of
this Agreement, the Developer fails to construct the Developer Project consistent with Article I11,
above; or
2. Taxes. The Developer fails to pay any real or personal property
tax or any special assessment levied or imposed by the State, County, or City against all or any
portion of the Developer Property then owned by the Developer before they are delinquent, and
in any event within ninety (90) days after written notice from the City of such failure; provided
that the Developer shall have the right to contest the same in accordance with applicable law; or
3. Tax Exemption. All or any portion of the Developer Property
becomes tax exempt; or
4. Breach of Agreement. The Developer breaches any provision of
this Agreement or its obligations under this Agreement; provided, however, that written notice of
the breach has been given to the Developer and the Developer has failed to cure such breach
within sixty (60) days or such longer period as is reasonably required under the circumstances
and the Developer has begun to cure such breach in good faith and is diligently continuing to
cure such breach.
5. Continuous Operation. The Developer ceases to operate the
Developer Project for a period of sixty (60) consecutive days for reasons other than casualty,
remodeling, or Force Majeure.
B. City Options upon Event of Default. Whenever an Event of Default
occurs under Section VIII.A, the City may take one or more of the following actions, in the
City's sole and absolute discretion:
1. Suspend or terminate the performance of any and all of its
undertakings and obligations under this Agreement, including, but not limited to, making any
further payments under this Agreement during the pendency of the Event of Default.
{07509076.DOCX.1) 9
20960413.4
in equity, which 2. Take any action, including legal or administrative action, at law or
may appear necessary or desirable to the City to enforce performance and
observance of any obligation, agreement, or covenant of the Developer under this Agreement or
to seek remedy for its breach. Such rights and remedies shall not be exclusive of any other
remedy or remedies, and such rights and remedies shall be cumulative and shall be in addition to
every other right and remedy given under this Agreement or now or hereafter existing at law or
in equity or by statute.
C. Delav in Exercise of Riehts Not Waiver. No delay or omission to exercise
any right or power accruing to the City or the Developer upon any default by the other party shall
impair any such right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed expedient as long
as the default is continuing,
D. Written Waiver Required. In the event this Agreement is breached by
either party and such breach is expressly waived in writing by the other
be limited to the particular breach so waived and shall not be deemed arty, such waive any shall
concurrent, previous, or subsequent breach hereunder. A party's acquiescence in not enforcing
lik
any portion of this Agreement shall not provide a basis for the application of estoppel or other e defense or otherwise constitute waiver. Any waiver of any provision of this Agreement other
the City must be express and in writing.
E. Compensation for Costs of Breach. Whenever there is an Event of Default
by the Developer hereunder, and the City employs attorneys or incurs other expenses for the
collection of payment due or to become due for the enforcement or performance or observance
of any obligation or agreement on the part of the Developer contained in this Agreement, the
Developer shall, on demand thereof, pay to the City the reasonable fees of such attorneys and
such other reasonable expenses incurred by the City.
IX. EFT
AGREEMENTS.
A. Initial Allocation of Available Tax Increment. Available Tax Increment
shall be allocated among the three (3) Project developers as follows:
Developer Reimbursable Project Costs Developer's Share of
Available Tax Increment
Developer $362,741.00 2122%
Rogan's $222,321.00 0
13.00%
Masters $1,124,478.00 65.78%
B. Reallocation. In the event that payments of a City Contribution under a
development agreement entered into with respect to the Project are terminated due to a
(07509076.DOCX.1) 10
2o%o413.4
developer's default, such defaulting developer's share of Available Tax Increment shall be
reduced to 0% and Developer's Share will be recalculated to equal the percentage which
Developer's Reimbursable Project Costs bears to the Reimbursable Project Costs incurred by all
non -defaulting developers, and future payments of the Available Tax Increment will be
reallocated accordingly.
X. MISCELLANEOUS PROVISIONS.
A. incorporation of Attachments. All exhibits and other documents attached
hereto or referred to herein are hereby incorporated in and shall become a part of this Agreement.
B. Term. Unless terminated under Article Vlll, above, the term of this
Agreement shall begin as of the Effective Date and shall continue until November 1, 2047,
unless terminated earlier in accordance with the termination by the City of the District in
accordance with the Tax Increment Law.
C. Review and Inspections. The City will act diligently to review all
necessary approvals, licenses, and permits and to undertake any inspections duly requested by
the Developer.
D. Restriction on Assignment of Agreement.
1. Agreement. The Developer may assign or transfer all of its rights
under this Agreement to an Affiliate without the express prior written consent of the City only if
the proposed Affiliate assignee or transferee agrees in writing to assume all of the Developer's
obligations under this Agreement and the Developer provides the City with timely written notice
and a copy of such fully executed assumption. Otherwise, upon an assignment or transfer of all
of the Developer's rights under this Agreement to (i) a nonAffiliate, or (ii) an Affiliate that does
not agree in writing to assume all of the Developer's obligations under this Agreement, this
Agreement shall terminate at the option of the City and be of no further force or effect, except if
the Developer obtains the express written consent of the City, which shall be in the sole and
absolute discretion of the City. All of the rights and obligations under this Agreement must be
assigned or transferred together, if at all, and may not be assigned separately.
2. Transfer of Property. The Developer may sell, assign, or transfer
all or any portion of the Developer Property to an Affiliate without the express prior written
consent of the City only if the proposed Affiliate assignee or transferee agrees in writing to
assume all of the Developer's obligations under this Agreement, and the Developer provides the
City with timely written notice and a copy of such fully executed assumption. Otherwise, upon a
sale, assignment, or transfer of all or any portion of the Developer Property to (i) a nonAffiliate,
or (ii) an Affiliate that does not agree in writing to assume all of the Developer's obligations
under this Agreement, this Agreement shall terminate at the option of the City and be of no
further force or effect, except if the Developer obtains the express written consent of the City,
which shall be in the sole and absolute discretion of the City.
E. Force Majeure. A party shall be excused from its obligations under this
Agreement if and to the extent and during such time as the party is unable to perform its
obligations or is delayed in doing so due to events or conditions outside of the party's reasonable
107509076.DOCX.1 } 11
20%0413.4
control (each a "Force Majeure Event") based solely upon acts of God, war, fire, or other
casualty, riot, civil unrest, extreme weather conditions, terrorism, strikes, and labor disputes.
Upon the occurrence of a Force Majeure Event, the party incurring such Force Majeure Event
will promptly give notice to the other party, and thereafter the parties shall meet and confer in
good faith in order to identify a cure of the condition affecting its performance as expeditiously
as possible.
F. District Information. As soon as practicable, but no later than
December 15 of each calendar year, the City shall provide to the Developer the information
pertaining to the Available Tax Increment for the calendar year of the request; provided,
however, the City is only required to submit information in its possession and is not required to
reply to any request prior to December 15 of any calendar year.
G. Time of the Essence. Time is deemed to be of the essence with regard to
all dates and time periods set forth herein and incorporated herein.
H. Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this Agreement.
I. Delivery of Notices. Any notice required hereunder shall be given in
writing, signed by the party giving notice, personally delivered, mailed by certified or registered
mail, return receipt requested, sent by overnight delivery service, or faxed or emailed to the
parties respective addresses (or at such other address for a party as shall be specified in a notice
given in accordance with this Section) as follows, provided any notice given by facsimile or
email is also given by one of the other methods:
To the City: City of Oshkosh
City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI54903-1130
Attn: City Attorney
Facsimile No. 920-236-5106
Email: llorensonna,ci.oshkosh.wi us
With a cony to: Godfrey & Kahn, S.C.
100 W. Lawrence Street
Appleton, WI 54911
Attn: Michael J. Lokensgard
Facsimile No. 920-830-3530
Email: mlokensgardna,gklaw.com
To Deve]Wer: Oshkosh Refurb, Inc
3420 Jackson Street
Oshkosh, WI 54901
Attn: Tyler G. Reilly
Email: tyler.reillv(a)extremecustoms com
{07509076.DOCX.1) 12
20960413.4
With a copy to: Dempsey Law Firm, LLP
210 N. Main Street
Oshkosh, WI 54903
Attn: Heath G. Mynsberge
Email: hgLuOdempsevlaw com
and shall be deemed given upon personal delivery, the first business day after certification or
registration, the first business day after deposit with the overnight delivery service, and upon
acknowledgement of receipt by facsimile or email (provided notice is promptly sent by one of
the other methods).
J. Entire Agreement. This Agreement and the documents to be delivered
hereunder constitute the sole and entire agreement of the parties to this Agreement with respect
to the subject matter contained herein, and supersede all prior and contemporaneous
understandings and agreements, both written and oral, with respect to such subject matter. In the
event of any inconsistency between this Agreement and the documents to be delivered
hereunder, or the Exhibits, this Agreement will control. This Agreement may be modified only
in writing signed by all parties.
K. Law Applicable. This Agreement shall be construed in accordance with
the internal laws of the State of Wisconsin.
L. Originals and Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original.
M. Amendments to Agreement. This Agreement shall not be amended orally
but only by the written agreement of the parties signed by the appropriate representatives of each
party and with the actual authority of each parry.
N. Limitation on Liability. The parties acknowledge and agree that in
carrying out any of the provisions of this Agreement or in exercising any power or authority
granted to them thereby, there shall be no personal liability of the either of the parties' officers,
members, agents, employees, or representatives, it being understood and agreed that in such
matters they act as agents and representatives of the applicable party.
O. No Partnership. This Agreement specifically does not create any
partnership or joint venture between the parties, or render any party liable for any debts or
obligations of the other parry.
P. Recording of Agreement. The parties hereto agree that at the City's option
a memorandum of this Agreement, including reference to the Restrictive Covenant, may be
recorded on the record title to the Developer Property. The Developer shall upon request of the
City execute and deliver any such memorandum or other document in connection with such
recording.
Q. Developer's Obligations Run with the Land. The Developer's obligations
under this Agreement and all consents, obligations, waivers, restrictions, and other requirements
107509076.DOCX.1) 13
20960413.4
of the Developer as set forth in this Agreement, shall be deemed to be covenants running with
the land and shall be binding upon the Property and the successors, assigns, and other transferees
of the Developer. The rights and benefits conferred upon the Developer shall not be covenants
running with the land and shall not inure to the successors, assigns, or other transferees of the
Developer, except as set forth in Section X.D, above.
R. Severance. If any portion of this Agreement is deemed invalid or
unenforceable by a court of competent jurisdiction, then the remainder of this Agreement shall
remain in full force and effect and enforceable to the fullest extent permitted by law.
S. Third Parties. This Agreement is made for the exclusive benefit of the
parties hereto, and their permitted assignees (as set forth in Section X.D.), and is not for te
h
benefit of any other persons, as third party beneficiaries or otherwise, and this Agreement shall
not be deemed to have conferred any rights, expressed or implied, upon any other party, except
as set forth in Section X.D.
T. Neutral Construction. This Agreement is the result of a negotiated
agreement by the parties and prior to the execution of this Agreement each party had sufficient
opportunity to have review of the document by legal counsel. Nothing in this Agreement shall
be construed more strictly for or against either party because that party's attorney drafted this
Agreement or any portion thereof or attachment hereto.
U. Headings. The headings inserted in this Agreement are for convenience
only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or
any provision of this Agreement.
[Signatures Begin On Next Page)
1(07509076.DOCX.1 } 14
20960413.4
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the
date stated in the first paragraph of this Agreement.
OSHKOSH REFURB, INC.
BY.,,.._.
Its: Shareholcler and President
STATE OF WISCONSIN }
COUNTY OF WTNNEBAGO} } SS
Personally came before jne this 20Kday of Se b /l { r, 2019, the
aboveinstru ame l , to me known to be Qie person who executed the foregoing
instrument. � �)
yNSBFR'•, Noi
My
Z PV G:, c) -
..
�'%rTATE OF � •'�
{07509076.DOCX.1 } 15
20960413.4
State
CITY OF OSHKOSH, WISCONSIN
By:
Mark -A. Rohlon, City Mmag '
By:
P ela R. Ubrig, City Clerk /
Approved as to form:
STATE OF WISCONSIN }
COUNTY OF WINNEBAGO } SS
Personally came before me thi0a' "`"day of � o! a'--2019,
instrument. named City Manager and City Clerk, to me known to be the person who executed the
* L
Notary
My Co.
the Above
forego
20960413.3 16
{07509076.DOCX.1 } 17
20960413.4
EXHIBIT A
Description of Pro e
Parcel ID No. 91323100401
LOT 1 OF CERTIFIED SURVEY MAP NUMBER 3521 RECORDED AS DOCUMENT
#947777, WINNEBAGO COUNTY REGISTER OF DEEDS.
Parcel ID No. 91.323100402
LOT 2 OF CERTIFIED SURVEY MAP NUMBER 3521 RECORDED AS DOCUMENT
#947777, WINNEBAGO COUNTY REGISTER OF DEEDS.
Parcel ID No. 91323100403
LOT 1 OF CERTIFIED SURVEY MAP NUMBER 5964 RECORDED AS DOCUMENT
#1410416, WINNEBAGO COUNTY REGISTER OF DEEDS.
20960413.3
EXHIBIT B
Description of Project Plan
Tax Incremental District ("TID") No. 37 ("District") is a proposed district in need of
rehabilitation or conservation consisting of five parcels and approximately 27 acres collectively
referred to as the Aviation Plaza center located northwest of the intersection of W. South Park
Ave. and S. Koeller Street and abutting Interstate 41. The existing commercial building in the
District contains approximately 117,000 sq. ft. of retail space with Rogan's Shoes as the only
current occupant following the closure of the J.C. Penney store in 2015. Masters Oshkosh LLC,
Oshkosh Refttrb, Inc., and Rogan Shoes, Incorporated (collectively, "Developer") have
submitted a plan to redevelop the properties located within the District. The Developer's plan
includes construction of a new 35,600 sq. ft. building that will operate as a Mineshaft restaurant
and family entertainment facility, the renovation of the former J.C. Penney building, and the
installation of new water, sanitary sewer, and storm water facilities (the "Project'). A portion of
the renovated building would be occupied by Extreme Customs, LLC, a technology and
automotive firm specializing in online sales of custom rims and fires. The Extreme Customs
facilities will include retail, office, product installation, and warehousing space. General
Development Plans and Specific Implementation Plans were approved for Extreme Customs on
February 12, 2019 (Resolution 19-91) and Mineshaft on May 28, 2019 (Resolution 19-319). The
District will be created to pay incentives to reimburse the Developer for costs incurred related to
the rehabilitation of public and private infrastructure and improvements. The Project represents
an estimated $22.8 million investment in the site with approximately $500,000 to be funded with
a WEDC Idle Sites Grant, $1.71 million to be funded with a development incentive funded by
the District, and the balance from private investment
{07509076.DOCX.1 } 19
20960413.4
EXHIBIT C
Estimate of Reimbursable Project Costs
Sewer and Water
Stone Water
Building
TOTAL REIMBURSABLE PROJECT COSTS
$362,741.00
107509076.DOCX. I!
20960413.4
EXHIBIT D
CITY MRO
UNITED STATES OF AMERICA
STATE OF WISCONSIN
COUNTY OF WINNEBAGO
CITY OF OSHKOSH
TAXABLE TAX INCREMENT PROJECT MUNICIPAL REVENUE OBLIGATION ('1MRo,,)
Number Date of Original Issuance
Amount
1 1 $1362,741.001
FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin (the
"City"), promises to pay to OSHKOSH REFUB, INC.. (the "Developer"), or registered assigns,
but only in the manner, at the times, from the source of revenue and to the extent hereinafter
provided, the principal amount not to exceed $[362,741.001, with interest thereon at the rate of
5.25% per annum.
Interest shall
to accrue on
installments on Novembbegin (the "Payme t Date ") in each of thes MR0 shall years set forthbe payable in chedulell
attached hereto in an amount equal to Developer's Share of Available Tax Increment for the
prior year provided such payments are due under the Development Agreement, as hereinafter
defined. Payments shall be applied first to accrued interest and second to unpaid principal.
Payments on this MRO shall be made only to the extent that the City has received Available Tax
Increment, and then only to the extent of Developer's Share thereof.
This MRO has been issued to finance projects within the City's Tax Incremental District
No. 37 ("District") and is payable only from the income and revenues herein described, which
income and revenues have been set aside as a special fund for that purpose and identified as the
"Special Redemption Fund" provided for under the Resolution adopted on 2019 b
the Common Council of the City (the "Resolution"). This MRO is issued pursuant to the
Resolution and pursuant to the terns and conditions of the Tax Incremental District No. 37
Development Agreement dated as of 2019 ty and the
Developer ("Development Agreement"). This MRO does not cons itute an indebtedness etween the t of the
City within the meaning of any constitutional or statutory limitation or provision. This MRO
shall be payable solely from Developer's Share of the Available Tax Increment generated by the
Project located within the District and appropriated by the Common Council to the payment of
this MRO (the "Revenues"). Reference is hereby made to the Resolution and the Development
Agreement for a more complete statement of the revenues from which and conditions and
limitations under which this MRO is payable and the general covenants and provisions pursuant
to which this MRO has been issued. The Resolution and Development Agreement are
incorporated herein by this reference. Capitalized terms used in this MRO which are not defined
(07509076.DOCx. 11
20960413.4
in this MRO shall have the meaning attributable to such terms as set forth in the Development
Agreement.
The City shall have no obligation to pay any amount of this MRO which remains unpaid
after the Final payment Date of November 1, 2047.
The City makes no representation or covenant, express or implied, that the Available Tax
Increment or other Revenues will be sufficient to pay, in whole or in part, the amounts which are
or may become due and payable hereunder.
The City's payment obligations hereunder are subject to appropriation, by the Common
Council, of Available Tax Increment to make payments due on this MRO. When the amount of
Revenues have been appropriated and applied to the payment of all principal and interest due
under this MRO, the MRO shall be deemed to be paid in full and discharged, and the City shall
have no further obligation with respect hereto. Further, as provided in Section VIILg.I of the
Development Agreement, the City shall have no obligation to make payments on this MRO in
the event of certain defaults described in Section VIII.A of the Development Agreement.
This MRO is a special, limited revenue obligation and not a general obligation of the City
and is payable by the City only from the sources and subject to the qualifications stated,
incorporated or referenced herein. This MRO is not a general obligation of the City, and neither
the full faith and credit nor the taxing powers of the City are pledged to the
or payment of the
principal of this MRO. Further, no property or other asset of the City, except the above -
referenced Revenues, is shall be a source of payment of the City's obligations hereunder.
Subject to the foregoing, the City may, at its option, prepay this MRO at any time.
This MRO is issued by the City pursuant to, and in full conformity with, the Constitution
and laws of the State of Wisconsin.
This MRO may be transferred or assigned, in whole or in part, with the consent of the
City, which consent shall not be unreasonably withheld. Interests in this MRO may not be split,
divided or apportioned. In order to transfer or assign the MRO, the transferee or assignee shall
surrender the same to the City either in exchange for a new, fully -registered municipal revenue
obligation or for transfer of this MRO on the registration records for the MRO maintained by the
City. Each permitted transferee or assignee shall take this MRO subject to the foregoing
conditions and subject to all provisions stated or referenced herein.
It is hereby certified and recited that all conditions, things and acts required by law to
exist or to be done prior to and in connection with the issuance of this MRO have been done,
have existed and have been performed in due form and time.
IN WITNESS WHEREOF, the City Council of the City of Oshkosh has caused this MRO
to be signed on behalf of the City by its duly qualified and acting City Manager and City Clerk,
and its corporate seal to be impressed hereon, all as of the date of original issue specified above.
CITY OF OSHKOSH
{07509076.DOCX.1)
20960413.4
By: _
Name:
Title:
Attest:
Name:
Title:
107509076.DOCX.1 }
20960413.4
Schedule 1
Payment Schedule
Subject to the City's annual receipt of Available Tax Increment and the terms and conditions of
the Development Agreement, the City will pay to Developer Developer's Share of Available Tax
Increment received by the City for the prior year on each November 1 during the Payment Term;
provide that in no event shall payments to Developer under this MRO exceed $362,741.00,
exclusive of interest.
107509076.DOCX. 11
20960413.4
REGISTRATION PROVISIONS
This MRO shall be registered in registration records kept by the City Clerk of the City of
Oshkosh, Winnebago County, Wisconsin, such registration to be noted in the registration blank
below and upon said registration records, and this MRO may thereafter be transferred only upon
presentation of this MRO together with a written instrument of transfer approved by the City and
duly executed by the Registered Owner or his attorney, such transfer to be made on such records
and endorsed hereon.
Date of Registration
107509076.DOCX.11
20960413.4
Name of Registered Owner Signature of City Clerk
EXHIBIT E
Projected District Revenue and Expenses
[Insert Ehlers Pro Forma]
{07509076.DOCX.1 }
20960413.4
�mo
ryma
N N N
�mo�Nm
N N N N
RRRRRRRRRR
u�ms
$g$SSRR$
aNmn
m
q>R
u C
pRRRRRRRRR
u1 b N
D g p O
CR
ry m ..................
=g
y
m
d�
nffiuPinromnmm�o
s
$
.............
m
G m
� N 0 N
t+O�'o O1
m O
n
yy N n
_
nionm
rvmam�3nm
�$$n"q�w
n
�irvnm
N
m OI Oj
m
U
— m—
seas
p
--
y
lNV
N N N N N
N NNNNNNN
N
Q
_�
C
NOOOryOry
0
ryOry ��OyyOOON
W
rc noon
m�ra
m�deim�roa.riN
e'.�rvam��n
'�
ENo��@
q
W
Am
E n
�oXXXXe$$mX
E
n
N,N
vnirnnN�'f
VNNi uNNi
�a�m=
oao��Nm�oN+
g"n Xo'�
zncXi�m
4'i m�i
pp
a�mmnulR
yy
>
S
�Ne
�
m
C
m
U
p E
T'XXXXXqg
aEXXXX
rc
'gN"�N nrv"�i3
'Qi�Ymi
E
Ee
_5
V
N
N
YyyI
N
P
a
VN
NfgONm
SR
qN pN
bb
ARR0
VN
OO2
n
VNVmNppm
tNO m
VN
�4XOR
§
yy
ee
qq�p
Y
y=�m0
U
L
�'U
E °
XXNNXX�No�X
a.�
Nn0'
�
N
066666.
'f
rcaxg=
�oma'anmmm
m°�e
�mQo�
mnm
F
.mnm
a
yn'
dim
�Nd
�
f aXoa
$
r-c
u4,000$�$$$$$0000���ua��0000a
m
'
m E X
n n
n n n n n
n t
ryN n NN ry n
N N N N N
N NNNNNNN
N
p
q 0 O
C N N
CNI N N N N
ii N
N N
N N N N N
N NNNNNNN
N O
C
Q
�o nNrvrvnrv'yry3��ry
"
Mm NNNm
5
- y�yX
c�
.%�.N
vvNNvNNN
YnY��rrvr��Yn�m�.VrvryNnr{ry
�C�tNVNN
rvHnNnryryn
N,�_N___.r
pup
b
o
E
�U
P
re
sni �rvNrvN
Nn�Nrn�nvninisnivnisniSig
F
=
i
�
=e
NnnR��RRRRRRRRRRRR��NnR$�$�$
i �