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HomeMy WebLinkAbout26. 21-52JANUARY 26, 2021 21-52 RESOLUTION CARRIED_______LOST_______LAID OVER_______WITHDRAWN_______) PURPOSE: APPROVE AMENDMENT TO TID NO. 37 TIF DEVELOPMENT AGREEMENT WITH ROGAN SHOES INC., OSHKOSH REFURB INC., AND MASTERS OSHKOSH, LLC FOR THE REDEVELOPMENT OF AVIATION PLAZA; APPROVE CONSENT TO PROPERTY TRANSFER FOR ROGAN SHOES, INC. INITIATED BY: DEPARTMENT OF COMMUNITY DEVELOPMENT WHEREAS, the City has established Tax Incremental District No. 37 as a district in which at least fifty percent 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, Oshkosh Refurb, Inc., Rogan Shoes, Inc. and Masters Oshkosh, LLC are the owners of all of the parcels within the District, completed the redevelopment of the District by constructing a 35,600 square foot Mineshaft restaurant and family entertainment center, remodeling a 62,435 square foot Extreme Customs, automotive facility consisting of retail, office, installation, and warehouse space, and installing certain common and separate infrastructure and site improvements, all in accordance with applicable City ordinances and City-approved plans; 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, Oshkosh Refurb, Inc., Rogan Shoes, Inc. and Masters Oshkosh, LLC, have submitted the final TIF-eligible costs incurred during the redevelopment of the Project which exceeded the estimate included in the Development Agreement and have requested that the Development Agreement be amended to reflect the actual costs incurred. JANUARY 26, 2021 21-52 RESOLUTION CONT’D NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the requested change to amend the development agreement to reflect the actual costs incurred is hereby approved. BE IT FURTHER RESOLVED that the proper City officials are hereby authorized and directed to enter into an Amendment to the TID Developer Agreements with Oshkosh Refurb, Inc., Rogan Shoes, Inc. and Masters Oshkosh, LLC for redevelopment of the Aviation Plaza, per the attached, in substantially the same terms as attached hereto, any changes in the execution copy being deemed approved by their respective signatures, and to carry out all actions necessary to implement the City's obligations under the Development Agreement as amended. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us January 20th, 2021 Rogan Shoes, Incorporated 1750 Ohio Street Racine, Wisconsin 53405 Attention: Mr. Patrick A. Rogan Re: Consent to Transfer of Property Ladies and Gentlemen: Reference is made to that certain Tax Incremental District No. 37 Development Agreement (Aviation Plaza Project) between the City of Oshkosh, Wisconsin (the “City”) and Rogan Stores Oshkosh LLC (“Rogan Stores”), dated September 20, 2019 and recorded with the Winnebago County Register of Deeds on October 25, 2019 as Document No. 1802025 (the “TIF Development Agreement”). All capitalized terms not defined herein shall have the meanings ascribed to them in the TIF Development Agreement. The TIF Development Agreement encumbers that certain real property commonly known as 2145 South Koeller Street in Oshkosh, Wisconsin which is legally described on Exhibit A attached hereto (the “Developer Property”). Rogan Shoes, Incorporated, a Wisconsin corporation (“Developer”), the successor in interest to Rogan Stores, is the fee owner of the Developer Property. Rogan desires to sell the Developer Property to Brauvin Acquisitions, LLC, an Illinois limited liability company (or its affiliate designee) (“Brauvin”), pursuant to that certain Purchase and Sale Agreement dated as of January 4, 2021 (the “Proposed Transfer”). Concurrent with the Proposed Transfer, Brauvin, as landlord, and Developer, as tenant, intend to enter into a Commercial Lease Agreement for the Developer Property (the “Lease”). Pursuant to Section X.D.2. of the TIF Development Agreement, the express written consent of the City is required for the Proposed Transfer of the Developer Property. The City hereby consents to the Proposed Transfer. The City acknowledges that Developer intends to assign its right to receive payment under the City MRO (as that term is defined in the TIF Development Agreement) (the “City Contribution Payments”) to Brauvin as security for Developer’s obligations under the Lease. As of the date hereof, the City agrees and acknowledges the following: 1. The TIF Development Agreement is in full force and effect and no default exists thereunder. 2. The Developer Project has been completed in accordance with Section III.B. of the TIF Development Agreement. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us The City will issue the City MRO (as that term is defined in the TIF Development Agreement) to the Developer. The City understands that as a condition of the sale and lease of the Developer Property, the Developer has pledged to Brauvin future City Contribution Payments by assignment of the City MRO to Brauvin. Brauvin (or any successor landlord) may, upon default by Developer under the terms of the Lease, and upon written notice delivered to Developer and the City, demand that the City make the City Contribution Payments thereafter directly to Brauvin. Developer hereby irrevocably authorizes Brauvin to receive those payments otherwise due under the TIF Development Agreement and City MRO to Developer. Developer irrevocably and unconditionally waives its rights, if any, to contest, object or otherwise delay the direct payment of the City Contribution Payments to Brauvin; and Developer irrevocably and unconditionally waives its rights, if any, to contest, object or make any claims that the City was not authorized to make or deliver such payments directly to Brauvin. CITY OF OSHKOSH, WISCONSIN By:_______________________________ Mark A. Rohloff, City Manager By:_______________________________ Pamela R. Ubrig, City Clerk {07642512.DOCX.1} SECOND AMENDMENT TO TAX INCREMENTAL DISTRICT NO. 37 DEVELOPMENT AGREEMENT (AVIATION PLAZA PROJECT) This Second Amendment to the Tax Incremental District No. 37 Development Agreement (the “Second Amendment”) is made this ___ day of January, 2021 (the “Effective Date”), by and between the CITY OF OSHKOSH, WISCONSIN, a Wisconsin municipal corporation (the “City”), and MASTERS OSHKOSH, LLC 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 owns 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, Incorporated (“Rogan’s”) and Oshkosh Refurb, Inc. (“Extreme Customs”), as the owners of all of the parcels within the District, completed the redevelopment of the District by (i) constructing a 35,600 square foot Mineshaft restaurant and family entertainment center, (ii) remodeling a 62,435 square foot Extreme Custom, 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, the Developer has submitted the final TIF-eligible costs incurred during the redevelopment of the Project which exceeded the estimate included in the Development Agreement and is consistent with Paragraph III.E of the Development Agreement and have requested that the Development Agreement be amended to reflect the actual costs incurred. NOW THEREFORE, in consideration of the recitals, the terms and conditions contained in this Second Amendment, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: {07642512.DOCX.1} 20929141.3 AGREEMENT I. CHANGES TO DEFINITIONS: Paragraph I.H. of the Development Agreement is hereby amended to read as follows: Developer’s Share. “Developer’s Share” means sixty percent (60%), representing the percentage of Available Tax Increment paid each year to Developer. II. EFFECT OF TERMINATION OF OTHER DISTRICT DEVELOPMENT AGREEMENTS. Paragraph IX.A of the Development Agreement is hereby amended to read as follows: 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 $1,161,330.00 60.00% Rogan’s $289,151.00 14.00% Extreme Customs $498,154.00 26.00% III. EXHIBIT Exhibit C to the Development Agreement is replaced with Exhibit C attached hereto. Exhibit D to the Development Agreement is replaced with Exhibit D attached hereto. V. Except as specifically modified by this Amendment, all other terms and conditions of the Development Agreement as Amended by the First Amendment thereto shall remain unaltered by this Amendment and in full force and effect. {07642512.DOCX.1} 20929141.3 CITY OF OSHKOSH, WISCONSIN By: Mark A. Rohloff, City Manager By: Pamela R. Ubrig, City Clerk Approved as to form: By: Lynn A. Lorenson, City Attorney STATE OF WISCONSIN } } SS COUNTY OF WINNEBAGO } Personally came before me this _____ day of ________________, 2021, the above named Mark A. Rohloff and Pamela R. Ubrig,, to me known to be the persons who executed the foregoing instrument in their official capacities as City Manager and City Clerk of the City of Oshkosh. Signature Printed Name My Commission expires: __________________ {07642512.DOCX.1} 20929141.3 EXHIBIT C Reimbursable Project Costs Sewer and Water Storm Water Other On-Site Drive Apron/Gutter District Storm Water Retention TOTAL REIMBURSABLE PROJECT COSTS $1,161,330.00 {07642512.DOCX.1} 20929141.3 EXHIBIT D CITY MRO UNITED STATES OF AMERICA STATE OF WISCONSIN COUNTY OF WINNEBAGO CITY OF OSHKOSH TAXABLE TAX INCREMENT PROJECT MUNICIPAL REVENUE OBLIGATION (“MRO”) Number Date of Original Issuance Amount ____ [_____________] $[1,161,330.00] FOR VALUE RECEIVED, the City of Oshkosh, Winnebago County, Wisconsin (the “City”), promises to pay to Masters Oshkosh, LLC. (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 $[1,161,330.00], with interest thereon at the rate of 5.25% per annum. Interest shall begin to accrue on January 27, 2021. This MRO shall be payable in installments on November 1 (the “Payment Dates”) in each of the years set forth in Schedule 1 attached hereto in an amount equal to the 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 August 7, 2019 by the Common Council of the City (the “Resolution”). This MRO is issued pursuant to the Resolution and pursuant to the terms and conditions of the Tax Incremental District No. 37 Development Agreement dated as of August 7, 2019 between the City and the Developer (“Development Agreement”). This MRO does not constitute an indebtedness 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 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 in this MRO shall have the meaning attributable to such terms as set forth in the Development Agreement. {07642512.DOCX.1} 20929141.3 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 VIII.B.1 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 payment of the principal of this MRO. Further, no property or other asset of the City, except the above-referenced Revenues, is or 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. {07642512.DOCX.1} 20929141.3 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 By: Name: Title: Attest: Name: Title: {07642512.DOCX.1} 20929141.3 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; provided, that in no event shall payments to Developer under this MRO exceed $1,161,330.00, exclusive of interest. {07642512.DOCX.1} 20929141.3 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 Name of Registered Owner Signature of City Clerk