Res 117-2021 Tax Abatement Agreement with OH-Wichita Falls, LLC 10/19/2021 Resolution No. 117-2021
Resolution authorizing the Mayor to execute a Tax Abatement
Agreement with OH-Wichita Falls, LLC related to their project where
they will spend approximately $48 million to build a full service
convention hotel on the property known as Lot 1-C, Block 1 of MPEC
South Addition and owned by OH-Wichita Falls, LLC, which is in the
Convention Center Reinvestment Zone
WHERE AS, the City Council finds that the City has complied with the prerequisites
for tax abatements, as provided in Chapter 312 of the Texas Tax Code and the City's
Guidelines and Criteria for Tax Abatement, as adopted on January 21, 2020.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
1. The Mayor is hereby authorized to execute a Tax Abatement Agreement for a
period of 10 years with OH-Wichita Falls, LLC, for the property described as Lot 1-C, Block
1, MPEC South Addition, Wichita Falls, Texas, with such changes to form as are approved
by the City Attorney.
2. City Staff shall provide copies of the proposed tax abatement agreements to the
other taxing entities in accordance with Texas Tax Code § 312.2041.
PASSED AND APPROVED this the 19th day of October, 2021.
lir- 2 2ff•i ii4--
MAYOR
ATTEST:
--/Yakc &
City Clerk J
TAX ABATEMENT AGREEMENT
BETWEEN THE CITY OF WICHITA FALLS
AND OH-WICHITA FALLS, LLC
This Tax Abatement Agreement (this "Agreement") is entered into by and between the City
of Wichita Falls, Texas (the "City"), duly acting herein by and through its Mayor, and OH-Wichita
Falls, LLC, a Missouri limited liability company (the "Owner"), authorized to do business in the
State of Texas, acting by and through its duly authorized officers.
Recitals
WHEREAS, on January 21, 2020, the City Council of the City (the "City Council") adopted
Resolution No. 05-2020 (the "Enabling Resolution") establishing certain guidelines and criteria for
the designation of reinvestment zones and the entering into of tax abatement agreements pursuant
to the Texas Property Redevelopment and Tax Abatement Act, as contained in Chapter 312 of the
Local Taxation Title of the Tax Code of the State of Texas (the "Code"); and
WHEREAS, the Enabling Resolution constitutes appropriate guidelines and criteria
governing tax abatement agreements to be entered into by the City as contemplated by the Code;
and
WHEREAS, the Enabling Resolution included a statement by the City that it elects to be
eligible to participate in tax abatement; and
WHEREAS, on March 3, 2020, the City Council passed Ordinance No. 09-2020 (the
"Ordinance") creating and designating the Convention Center Reinvestment Zone (the "Zone")
in the City for commercial-industrial tax abatement as authorized by the Code, and the designation
of the Zone remains in full force and effect; and
WHEREAS, it is in the best interest of the City and its taxpayers, in order to maintain and
enhance the commercial and industrial economic and employment base of the City, to enter into
this Agreement in accordance with the Enabling Resolution, the Ordinance and the Code; and
WHEREAS, the City Council finds that the contemplated use of the Premises (as hereinafter
defined), the contemplated improvements to the Premises in the description and amount as set
forth in this Agreement and the other terms hereof, are consistent with encouraging development
of the Zone in accordance with the purposes for its creation and are in compliance with the Enabling
Resolution, the Ordinance and all applicable law; and
WHEREAS, a copy of this Agreement has been furnished in the manner prescribed by the
Code to the presiding officers of the governing bodies of each of the taxing units in which the
Premises to be subject to this Agreement are located.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
That the City, for good and valuable consideration, the adequacy and receipt of which are
hereby acknowledged, which consideration includes the retention and/or expansion of primary
employment and the attraction of major investment in the Zone, which contributes to the economic
development of the City and the enhancement of the tax base in the City, and the Owner, for good
and valuable consideration, the adequacy and receipt of which are hereby acknowledged, which
consideration includes the tax abatement set forth herein as authorized by the Code, as amended,
do hereby contract, covenant and agree as follows:
1. General Provisions
1.1: The Owner is the owner of the land known as Lot 1-C, Block 1, MPEC South
Addition, as shown on Exhibit A, attached hereto and made a part hereof for all purposes (the
"Premises").
1.2: The Premises are located entirely within the city limits of the City and within the
Zone.
1.3: The Premises are not in an improvement project financed by tax increment bonds.
1.4: This Agreement is entered into subject to the rights of the holders of outstanding
bonds of the City.
1.5: The Premises are not owned or leased by any member of the City Council or by a
member of any zoning or planning board or commission of the City or by any member of the
governing body of any taxing unit joining in or adopting this Agreement.
2. Development
2.1: The Owner will build and operate a full-service hotel on the Premises, which is used
for marketing the City for convention purposes, thereby promoting the City's convention and hotel
industry. The Owner plans to make an investment in the hotel of at least $48 million to construct it
to a Delta by Marriott hotel, which will allow the Owner to provide a convention center hotel that
provides a level of service higher than any of the other hotels in the City. As a result of this
investment, the Owner anticipates creating approximately 116 new full-time positions.
A more detailed description of the improvements, including the kind and number of the
proposed personal property additions, all of which will be located on the Premises, is set forth in
the attached Exhibit B, to which reference is here made for all purposes. Owner shall have the
right to make alterations and/or substitutions to the project, and the equipment included therein, so
long as the cost, scope and projected economic impact of the project is not substantially reduced.
3. Rate and Duration of Tax Abatement
3.1: (a) The period of tax abatement for the improvements pursuant to this
Agreement shall commence on January 1, 2023, and shall continue for a period of 10 years
thereafter.
(b) Subject to the terms and conditions set forth in this Agreement, the tangible
personal property and other improvements located on the Premises shall be exempt from taxation
by the City in accordance with this Section 3.1, provided, however, in accordance with Section
312.204(a) of the Code, the tax abatement set forth herein is subject to the following: (i)with respect
to real property, the abatement shall only be applicable to the extent the value of the real property,
including the improvements described herein, exceeds its value for the year in which this Agreement
is executed; and (ii) with respect to tangible personal property located on the real property covered
by this Agreement, the abatement shall be applicable to all tangible personal property located on
such real property constituting a part of the improvements described herein other than tangible
personal property located on the real property prior to the commencement of the improvements
described herein.
(c) The percentage of the increased value of the Premises and the appraised
value of tangible personal property which will be exempt from ad valorem taxes during each year
of the applicable tax abatement period pursuant to this Agreement is as follows:
Year Percentage
1 100%
2 100%
3 100%
4 100%
5 100%
6 100%
7 100%
8 100%
9 100%
10 100%
3.2: Notwithstanding anything in this Agreement which might be deemed to be to the
contrary, the Owner shall have the right to protest and contest any appraisal or assessment of the
Premises, or any improvements or tangible personal property or both located thereon, and the tax
abatement provided for herein for such improvements and/or tangible personal property shall be
applied to the amount of taxes finally determined, as a result of such protest or contest, to be due
for such property.
4. Records and Cost
4.1: The kind, number and location of all proposed improvements are described in
Section 2.1. Prior to April 1, 2023, Owner shall furnish to the City a certificate signed by a duly
authorized representative of the Owner setting forth a general description and cost of the personal
property and improvements added to the Premises, since the date of the commencement of the
improvements. The Owner shall at all times cooperate with representatives of the City so as to
enable such representatives to verify the addition of improvements to the Premises and the cost
thereof.
4.2: At all times during the term of this Agreement, the City and/or the Wichita Appraisal
District (the "Appraisal District") shall have access to the Premises by City or Appraisal District
employees or other representatives for the purpose of inspecting the Premises to verify the addition
of equipment and improvements as contemplated by this Agreement; provided, however, that the
City or the Appraisal District, as applicable, shall notify the Owner at least 2 days in advance of any
such inspection and such inspections shall not interfere with the business operations and/or safety
policies of the Owner with respect to the Premises.
4.3: The Premises and the tangible personal property additions and improvements
thereto shall at all times during the term of this Agreement be used in a manner that is consistent
with the City's general purpose of encouraging development of the Zone.
4.4: No later than February 28, 2023, Owner shall provide the City and the Appraisal
District with an interim report setting forth the status of the improvements, including the description,
historical cost of the tangible personal property and other improvements added to the Premises as
of January 1, 2023, for which Owner is claiming tax abatement pursuant to this Agreement. By April
1, 2023, Owner shall provide the City with a final report setting forth the final description, historical
cost of the tangible personal property and other improvements added to the Premises for which
Owner is claiming tax abatement pursuant to this Agreement.
4.5: Throughout the term of this Agreement, Owner shall furnish the City and the
Appraisal District with such additional records and information as the City and/or the Appraisal
District may reasonably request to support Owner's tax abatement. This information shall include,
but is not necessarily limited to, information regarding improvements for which Owner has received
tax abatement and which has been replaced or removed from the Premises. At a minimum, this
information shall include a property description, an asset number (if applicable), and the date such
property was removed or replaced.
4.6: The City and/or the Appraisal District shall have the right to review and audit at its
expense the books and records of the Owner relating to the Premises and the improvements
thereon. The City and/or the Appraisal District shall notify the Owner in advance in writing of its
intent to review and/or audit such records in order to allow the Owner adequate time to make such
books and records available on the Premises.
4.7: On or before April 15 each year (or such extended date, if any, permitted by law),
the Owner shall render all of Owner's personal property located thereon to the Appraisal District for
ad valorem tax purposes in accordance with applicable law.
4.8: On or before April 15 each year, Owner shall certify to the governing body of the City
that the Owner is in compliance with each applicable term of this Agreement.
4.9: In accordance with the requirements of Section 11.43 of the Texas Property
Tax Code, in order to qualify for tax abatement pursuant to this Agreement, the Owner must
apply for the applicable exemption prior to May 1 each year. The applicable exemption
application form must be filed with the Chief Appraiser for the Appraisal District.
4.10: In the event that: (a) the improvements for which an abatement has been granted
herein are not completed in accordance with this Agreement; or (b) Owner (and its affiliates) fails
to create and maintain at least 100 new jobs at the Premises by December 31, 2023 (which jobs
shall be maintained so long as the equipment and improvements associated with such jobs as
described on Exhibit B remains in place and operational); or(c) Owner allows its ad valorem taxes
owed to the City to become delinquent and fails to timely and properly follow the legal procedures
for protest and/or contest of such ad valorem taxes; or (d) Owner breaches any of the terms or
conditions of this Agreement; or (e) Owner defaults in Owner's obligations pursuant to any
agreements that the Owner has entered with the City of Wichita Falls or the Wichita Falls 4B Sales
Tax Corporation. In the event that Owner defaults in its performance of(a), (b), (c), (d), and/or (e)
above, then the City shall give Owner written notice of such default, and if Owner has not cured
such default within 30 days after receipt of said written notice, or if such default cannot be cured by
the payment of money and cannot with due diligence be cured within a 90-day period owing to any
cause beyond the control of Owner, this Agreement may be terminated by the City. (f) As liquidated
damages in the event of default where the Owner fails to make improvements or repairs as required
by this Agreement, all taxes which otherwise would have been paid to the City without the benefit
of abatement pursuant to this Agreement (together with interest charged at the statutory rate for
delinquent taxes as determined by Section 33.01 of the Property Tax Code of the State of Texas,
but without the addition of a penalty) will be reinstated and will become a debt to the City and Shall
be due, owing and paid by Owner to the City within 60 days. For any other event of default, the
Owner shall be required to reimburse 25% of such unpaid taxes along with interest in the manner
set forth in this paragraph.
5. Sale, Assignment or Lease of Property
5.1: The tax abatement provided for herein shall vest in the Owner upon completion of
the real property and personal property additions and improvements described in Section 2.1, but,
except as hereinafter provided, such tax abatement is not assignable to any new owner or lessee
of all or any portion of the Premises without the prior written approval of the City, which approval
will not be unreasonably withheld. Notwithstanding the foregoing, the tax abatement provided for
herein shall be assignable without prior approval by the City: (i) n/a, (ii) to any parent, affiliate,
subsidiary or other entity in which the Owner has direct or indirect control or (iii) in connection with
any sale of the Premises, or a portion thereof, which are then leased back (for a period at least
equal to the remaining term of this Agreement) by the Owner or a parent, affiliate, subsidiary or
other entity in which the Owner is in control. For purposes of this Article 5, the term "control" means
either: (i) the ownership of 50% or more of the beneficial or economic interest or voting power of
the appropriate entity or (ii) the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of the controlled entity.
6. Miscellaneous Provisions
6.1: All notices or other communications required or permitted by this Agreement shall
be in writing and shall be deemed to be properly given when delivered personally to any of the
hereinafter designated addressees or the named representatives thereof, or when mailed by
prepaid certified mail, return receipt requested, addressed to such party at the respective addresses
set forth below:
If to the City: City Manager
City of Wichita Falls
P.O. Box 1431
Wichita Falls, TX 76307-1431
If to the Owner:
Tim O'Reilly
Manager
OH-Wichita Falls, LLC
4045 E. Sunshine Street
Springfield, MO 65809
6.2: This Agreement was authorized by an order of the City Council adopted at its
meeting on October 19, 2021, authorizing the Mayor to execute this Agreement on behalf of the
City.
6.3: This Agreement was entered into by the Owner acting through one or more duly
authorized officers of the Owner.
6.4: In the event any section, subsection, paragraph, sentence, phrase or word herein is
held invalid, illegal or unconstitutional, the balance of this Agreement shall stand, shall be
enforceable and shall be read as if the parties intended at all times to delete said invalid section,
subsection, paragraph, sentence, phrase or word.
6.5: Any party hereto may request an estoppel certificate from another party hereto so
long as the certificate is requested in connection with a bona fide business purpose. The certificate
shall include, but not necessarily be limited to, statements that this Agreement is in full force and
effect without default if such is the case, the remaining term of this Agreement, the levels of tax
abatement then in effect, and such other matters reasonably requested by the parties to receive
the certificate.
6.6: The Owner, as a party to this Agreement, shall be deemed a proper and necessary
party in any litigation questioning or challenging the validity of this Agreement or any part hereof or
any of the underlying ordinances, resolutions, or City Council actions authorizing the same, and the
Owner shall be entitled to intervene in any such litigation.
6.7: After the Owner has satisfied the conditions set forth in this Agreement, the tax
abatement provided for herein shall continue for the duration of this Agreement and shall not be
lost through force majeure events such as acts of God, fire, tornado, earthquake or other events or
circumstances beyond the Owner's reasonable control.
6.8: This Agreement shall be governed by and construed in accordance with the laws of
the State of Texas. Venue for any action pursuant to this Agreement shall be in a state district court
in Wichita County, Texas. This Agreement is fully performable in Wichita County, Texas.
6.9: An executed copy of this Agreement in recordable form shall be recorded in the Real
Property Records of Wichita County, Texas.
6.10: Other taxing units in which the Premises are located may join in the execution of this
Agreement by executing a signatory page acknowledging the joinder of such taxing unit and
granting tax abatement by such taxing unit in accordance with the terms and conditions hereof; an
executed and acknowledged copy of each such signatory page shall be attached to this Agreement.
6.11: This Agreement may be executed in multiple counterparts, none of which must be
signed by all of the parties hereto, but all of which, taken together, shall constitute one and the
same agreement.
CITY OF WICHITA FALLS
By:
Stephen Santellana, Mayor
Date:
ATTEST:
By:
Marie Balthrop, City Clerk
Approved as to Form:
By:
R. Kinley Hegglund, Jr., City Attorney
OH-WICHITA FALLS, LLC
By
Tim O'Reilly, Manager
Date:
THE STATE OF TEXAS §
COUNTY OF WICHITA §
BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, on this day
personally appeared Stephen Santellana, Mayor of Wichita Falls, Texas, known to me to be the
person and officer whose name is subscribed to the foregoing instrument and acknowledged to me
that the same was the act of the said Wichita Falls, Texas, that he was duly authorized to perform
the same by appropriate order of the City of Wichita Falls, and that he executed the same as the
act of the said city for the purpose and consideration therein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 2021.
(seal)
Notary Public
THE STATE OF MISSOURI §
COUNTY OF GREENE §
BEFORE ME, the undersigned authority, a notary public in and for the State of Texas, on this day
personally appeared Tim O'Reilly, Manager of OH-Wichita Falls, LLC, a Missouri limited liability
company, known to me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said limited liability company
and that he executed the same as the act of said limited liability company for the purpose and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 2021.
(seal)
Notary Public
Exhibit A
Real Property Description
Lot 1-C, Block 1, MPEC South Addition
200
111 100 ///
Os'C��� zq3 2o5N.
'LN 207
200 �1�
202 225 1\
� 204 9 /
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301
5 303
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300
306
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1000
`.y
LOT 1-A BLK 1 MPEC SOUTH ADDN '
r 1.
403
LOT 1-B BLK 1
MPEC SOUTH ADDN 409
306 \�
- G.fJ LOT 1-C BLK 1 '�y
�� .% MPEC SOUTH ADDN :- 500
01 *sot
\� 4:k. ,C 510
LOT 1-D BLK 1 N 5
MPEC SOUTH ADDN k 500 908
a f''
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'rn e Shared Drive
45 Street Width:40 ft
400 -7502;sti� .
000 �0,S.
5 1010 •1004,
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sot �5°6
MPEC Exhibit
Location Map Legend
CITY OF ALCH TA FAL_5 PLAn IIN9 DIVISION w PP FRO OLI CEO Ev.Cedric F ru 1 i Subject Properties
L1 1 F 201/IICI I>,J..ino I
ETAShared Drive
= Parcels
Exhibit B
Description of Project
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