HomeMy WebLinkAbout23. 14-374
AUGUST 13, 2014 14-374 RESOLUTION
(CARRIED__5-0______LOST________LAID OVER________WITHDRAWN________)
PURPOSE: APPROVE DEVELOPMENT AGREEMENT FOR TID #27 NORTH
MAIN STREET INDUSTRIAL TID – BEMIS HEALTHCARE
PACKAGING, INC.
INITIATED BY: CITY ADMINISTRATION
WHEREAS, Bemis Healthcare Packaging, Inc. has requested financial assistance
from the City of Oshkosh in support of its proposal to expand its manufacturing facilities
located in the newly created TID #27 North Main Street Industrial TIF District; and
WHEREAS, the City finds that the construction of the project and the fulfillment of
the terms and conditions contained within the Development Agreement are in the vital and
best interests of the City and its residents and serves a public purpose by enabling and
assisting the promotion of industrial development, enhancing the City’s tax base,
promoting employment opportunities and encouraging the development of nearby parcels;
and
WHEREAS, it is necessary to enter into an appropriate Development Agreement to
accomplish the same.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper City officials are hereby authorized to enter into and take those
steps necessary to implement an appropriate agreement in substantially the same form as
attached with Bemis Healthcare Packaging, Inc. for financial assistance in support of its
proposal to expand its manufacturing facilities located at 3500 North Main Street in the
City of Oshkosh; any changes in the execution copy being hereby deemed approved by
their respective signatures.
BE IT FURTHER RESOLVED that the proper City officials are hereby authorized
and directed to take such steps necessary and appropriate to implement the terms and
conditions of the Development Agreement.
CITY HALL
215 Church Avenue
P.O. Box 1130
Oshkosh, 54903-1130 (� ` it}`, y of Oshkosh
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rOlHKQlH
TO: Honorable Mayor and Members of the Common Council
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FROM: Lynn A. Lorenson, City Attorne
Mark A. Rohloff, City Manager,
DATE: July 25, 2014
RE: Development Agreement for TID #27 North Main Street Industrial TID --
Bemis Healthcare Packaging, Inc.
Bemis Healthcare Packaging, Inc., currently known as PerFecseal l , has requested
financial assistance from the City of Oshkosh in support of its proposal to expand its
manufacturing facilities located in the newly created TID #27 North Main Street
Industrial TIF District. The assistance consists of an up to two million dollar
($2,000,000) Paygo grant over the course of ten years and access to a city constructed
regional storm water detention basin to be constructed within or near the TID.
To facilitate this assistance, Council will be asked to approve a Development
Agreement at its August 13th council meeting. Attached to this memorandum is a copy
of the draft Development Agreement for Council's review.
Following is a summary of the main points of the proposed Agreement:
Bemis Healthcare Packaging, Inc. will renovate and retrofit an existing unused
building and construct an approximately 110,000 square foot addition to their
existing facility which will connect the currently unused building to the other building
on their property, resulting in there being a single building on their property located
at 3000 N. Main Street in the City of Oshkosh. The project will be completed by
December 31, 2015.
The City finds that the construction of the project and the fulfillment of the terms and
conditions of this Development Agreement are in the vital and best interests of the
City and its residents and serve a public purpose by enabling and assisting the
promotion of industrial development, enhancing the City's tax base, promoting
employment opportunities, and encouraging development of nearby parcels.
' Perfecseal will change its name to Bemis Healthcare Packing Inc. as of August 1, 2014
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® The renovation and construction will generate a minimum required increment within
the TID of fourteen million dollars.
• The City will provide to Bemis Healthcare Packaging, Inc. payments from tax
increments received over a period of 10 years, subject to a maximum limit of two
million dollars ($2,000,000). Payments will begin in 2016.
• Payment of the Paygo grant will be equal to 75% of all tax increment for each year
from the Healthcare Packaging Property, net of city costs, up to a total of two million
dollars ($2,000,000) or for a period of ten years.
• The Paygo grant is a special and limited obligation of the City — not a general
obligation — and does not count toward City's debt limit.
• Bemis Healthcare Packaging, Inc. will be required to show that upon completion of
the project it will provide full -time employment at its 3500 North Main Street location
for 321 employees (161 current jobs will be retained, while another 160 jobs will be
created).
• Bemis Healthcare Packaging, Inc. will
average annual salary of $53,000 and
wage of $17.25 per hour.
retain 71 management positions with an
90 current hourly positions at an average
® The jobs created will include 30 management positions with an average annual
salary of $53,000 per year and another 130 hourly positions at an average wage of
$17.25 per hour. As a point of clarification, the TIF Plan had. identified an increase
to 321 total employees with an average annual salary.of $53,000. This salary only
applied to management employees. The T1F Plan did not identify the $17.25
anticipated hourly wage rate for the hourly positions.
• The Development Agreement anticipates that there may' be a period of time for
"ramp up" to reach the total projected employment and that employment may
fluctuate slightly over time.
• If the total number of employees or aggregate compensation falls below the
projected employment, the City will give Bemis Healthcare Packaging, Inc. written
notice and an opportunity to cure the deficiency within a 12 month period. if the total
number of employees or aggregate compensation still remains below the projected
employment after the opportunity to cure, then the paygo payment to Bemis
Healthcare Packaging, Inc. will be reduced on a pro -rata basis, reflecting the
proportion by which the level of actual employment falls below the projected
employment.
® Employment levels will be verified by a submittal from Bemis Healthcare Packaging,
Inc. which may be verified by audit.
® The increment guaranty shall be secured by a right of special assessment against
the property.
® City will acquire land and construct a regional storm water detention facility which
will benefit the property
If the Council has any questions after reviewing this memorandum or the proposed
Development Agreement, please contact either Community Development Director Allen.
Davis or City Attorney Lynn Lorenson.
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement ") is made as of the day of August,
2014 (the "Effective Date ") by and between the CITY OF OSHKOSH, WISCONSIN, a
Wisconsin municipal corporation and BEMIS HEALTHCARE PACKAGING, INC., a Delaware
corporation (the "Corporation ").
RECATALS
A. The Corporation and its Affiliate, Curwood, Inc. owns and operates
manufacturing facilities located at 3500 North Main Street in the City of Oshkosh, on property
legally described on Exhibit A (the "PropertX ").
B. The Corporation proposes to expand the manufacturing facilities located on the
Property by renovating and retrofitting an existing unused building, and constructing an
approximately 110,000 square foot addition, which will connect the currently unused building to
the other building located on the Property, resulting in there being a single building on the
Property, housing expanded clean room manufacturing and shipping operations (the "Project ").
C. Pursuant to Wis. Stats. §66.1105 (the "Tax Increment Law "), the City has (i)
created Tax Increment District No. 27 (North Main Street Industrial TID) (the "Tax Incremental
District "), and (ii) approved a project plan for the redevelopment of the Tax Incremental District
(the "District Project Plan ").
D. The Property is located within the Tax Incremental District.
E. The Corporation desires to operate the Property in accordance with the provisions
of this Agreement and the District Project Plan.
F. The Corporation's ability to develop the Project is contingent upon the City
providing financial and other assistance to the Corporation on the terms set forth in this
Agreement.
G. The City finds it to be in the public interest to utilize tax incremental financing to
assist the Corporation in undertaking the Project, consistent with the terms and conditions of this
Agreement.
H. Funds used to provide the Corporation with the tax incremental financing for
Project Costs (the "TIF Funds ") shall be raised solely from tax income generated from the
Project in the Tax Incremental District.
I: The City finds that construction of the Project and the fulfillment of the terms and
conditions of this Development Agreement are in the vital and best interests of the City and its
residents and serve a public purpose by enabling and assisting the promotion of industrial
development, enhancing the City's tax base, promoting employment opportunities, and
encouraging the development of nearby parcels.
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11662749.3
NOW THEREFORE, in consideration of the foregoing recitals that are incorporated
herein and made a part of this Agreement, the promises, covenants and agreements contained in
this Agreement and other good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the Corporation and the City promise, covenant and agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means any entity that, directly or indirectly, controls, is controlled by,
or is under common control with a party to this Agreement or such party's successors
and/or assigns. For purposes of this definition, "control" means possessing the power to
direct or cause the direction of the management and policies of an entity by ownership of
voting securities, contractual arrangements, or otherwise.
"Base Value Taxes" means the real property taxes payable with respect to the
Property for calendar year 2014.
"Cily" means the City of Oshkosh, Wisconsin, a municipal corporation, its
successors and assigns.
"Cit y Project Costs" means project costs incurred by the City under the District
Project Plan, to construct the improvements described in Section 2(a), below, and
otherwise implement the District Project Plan.
"Contribution" means payments provided by the City to the Corporation from
future Tax Increments as set forth in Section 2(b), below, the total of which shall not
exceed Two Million. Dollars ($2,000,000.00).
"Completion Date" means December 31, 2015.
"Default" means the occurrence of one or more of the events described in Section
8, below.
"Expiration Date" means the date of termination of the Tax Incremental District
under Wis. Stats. §66.1105(7).
"Guaranty" means the Corporation's increment guaranty, as more specifically
described in Section 13, below.
"Minimum Required Increment" means Fourteen Million Dollars
($14,000,000.00).
"Minimum Tax Liability" means, with respect to any year, the Base Value Taxes
llus the product of (i) the Minimum Required Increment and (ii) the mill rate established
for all taxing jurisdictions applicable to the Property established for such year. Exhibit B
sets forth estimated Minimum Tax Liability for each year of the Term, and the resulting
payment schedule for the Contribution.
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11662749.3
"Payment Date" means each October 15.
"Project Costs" means the total costs of acquiring and constructing the Project,
including all capital expenditures (or expenditures that could be treated as capital
expenditures) and preliminary expenditures (such as architectural, engineering,
surveying, soil testing and similar costs that are incurred in connection with the
construction of the Project) and all other direct and indirect costs of development of the
Project in accordance with the Project Plans.
" Project Plans" means the final detailed plans and specifications for the Project,
and all other improvements to be located on the Property.
"Pro ert " means the parcel of land upon which the Project is located, as legally
described on Exhibit A.
"Tax Increment" shall have the meaning given under Wis. Stats. §66.1105(2)(i)
but shall be limited to the Tax Increment attributable to the Property and the
improvements on the Property.
"Term" means the period of time from the Effective Date of this Agreement to the
Expiration Date,
"Tax Incremental District" means Oshkosh Tax Incremental District No. 27
(North Main Street Industrial TID).
2. City Obligations.
(a) City Improvements. The City shall acquire real and personal property, or
rights or interests therein, within and adjacent to the Tax. Incremental District, upon
which the City will construct a regional storm water detention facility as described in the
Opinion of Probable Cost prepared by Brown and Caldwell attached hereto as Exhibit C.
(b) Contribution. Subject to all of the terms and conditions of this Agreement
and applicable law, the City will provide payments to the Corporation solely from future
Tax Increments to assist with Project Costs; provided, that the aggregate amount of the
City's payments to the Corporation shall not exceed Two Million Dollars
($2,000,000.00). The Contribution shall be payable beginning in 2016.
As the sole source of payment for the Contribution, the City agrees to pay the
Corporation seventy five percent (75 %) of all Tax Increment (net of those costs payable
to the City pursuant to Section 10, below) attributable to the Property for a period of ten
(10) years (i.e. through 2025). Payments under this Agreement shall be made on
Payment Dates solely from Tax Increments actually received by the City prior to each
Payment Date.
The Contribution shall be a special and limited obligation to the City, and not a
general obligation. The Corporation acknowledges that as a result of this special limited
nature of the City's obligation to pay the Contribution, the Corporation's recovery of the
11662749.3
Contribution depends on various factors, including, but not limited to, future mill rates,
changes in the assessed value of the Property, the failure of the Property to generate Tax
Increments at the rate expected by the Corporation, changes in the Tax Increment Law,
and other factors beyond the City and/or the Corporation's control.
3. Conditions Precedent to the City's Obligations. In addition to all of the
conditions and requirements set forth in this Agreement, the obligations of the City hereunder
(including, without limitation, the obligation of the City to pay the Contribution) are conditioned
upon the satisfaction of each and every of the following conditions:
(a) On or before August 15, 2014, the Corporation shall provide the City an
opinion of its counsel reasonably acceptable to the City stating, among other things, that
the persons executing this Agreement on behalf of the Corporation are authorized to do
so, that the Corporation has duly authorized entry into this Agreement, and other matters
as are reasonably requested by the City.
(b) On or before August 15, 2014, the Corporation shall have provided the
City with (i) certified copies of its Certificate of Incorporation and Bylaws, and (ii) a
current Certificate of Status issued by the Wisconsin Department of Financial
Institutions.
(c) On or before August 15, 2014, the Corporation shall have acquired those
portions of the Property which are currently titled in the name of its Affiliate, Curwood,
Inc.
(d) As of the Effective Date, and on each Payment Date, no uncured default,
or event which with the giving of notice or lapse of time or both would be a default, shall
exist under this Agreement.
Unless all conditions contained in this Section 3 are satisfied within the time periods for
satisfaction of such conditions as set forth above or such conditions are waived in writing by the
City within the time periods for satisfaction of such conditions as set forth above, the City, at its
option, exercised in its sole discretion, may terminate this Agreement, in which event neither of
the parties to this Agreement shall have any further liability or other obligation to the other party.
4. Representations and Warranties of the Co oration. The Corporation represents
and warrants to the City as follows:
(a) The Corporation is a Delaware corporation duly incorporated and validly
existing and has the power and all necessary licenses, permits, and franchises to own its
assets and properties and carry on its business.
(b) The Corporation is duly licensed and qualified to do business in the State
of Wisconsin and all other jurisdictions in which failure to do so would have a material
adverse effect on its business or financial condition.
(c) The execution, delivery, and performance of the Corporation's obligations
pursuant to this Agreement will not violate or conflict with the Corporation's Certificate
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11662749.3
of Incorporation, Bylaws, any indenture, instrument, or agreement by which the
Corporation is bound, nor will the performance of the Corporation's obligations pursuant
to this Agreement violate or conflict with any law applicable to the Corporation or the
Project.
(d) There is no litigation or proceeding pending or, to the best of the
Corporation's knowledge, threatened that would adversely affect the Project or the
Corporation, the enforceability of this Agreement, the ability of the Corporation to
complete the Project, or the ability of the Corporation to perform its obligations under
this Agreement.
(e) To the best of the Corporation's knowledge, no default, or event which
with the giving of notice or lapse of time or both would be a default, exists under this
Agreement, and the Corporation is not in default (beyond any applicable notice and cure
period) with respect to any of its obligations under any other agreement or instrument to
which the Corporation is party or obligor.
5. Covenants of the Corporation. During the Term of this Agreement, the
Corporation covenants as follows:
(a) On or before the Completion Date, the Project shall be completed, and in
all respects be ready for occupancy and use by the Corporation.
(b) The Corporation shall conform and comply with, and will cause the
Project to be in conformance and compliance with, all applicable federal, state, local, and
other laws, rules, regulations, and ordinances, including, without limitation, all zoning
and land division laws, rules, regulations, ordinances, and building codes and ordinances
of the City, and all environmental laws, rules, regulations, and ordinances.
(c) The Corporation shall cause the Project to be constructed in a good and
workmanlike manner in accordance with the Project Plans and will }promptly correct any
defects, structural or otherwise, in any construction or deviations from the Project Plans.
Construction of the Project shall be completed free of all liens and encumbrances except
for any liens and encumbrances specifically permitted by this Agreement.
(d) The Corporation shall pay or cause to be paid prior to delinquency all
federal, state, and local taxes in connection with the Project.
(e) The Corporation shall comply with the requirement to provide notification
of position openings under Wis. Stat. § 66.1105(6c), and, to the extent notified by the
City prior to the date of this Agreement, with any other applicable material restriction
affecting the Tax Incremental District and with all laws, rules, regulations and ordinances
generally applicable to tax increment districts that are applicable to the Project.
(i) The Corporation shall have in effect at all times, all permits, approvals,
and licenses that may be required by any governmental authority or nongovernmental
entity in connection with the development, construction, management, and operation of
the Project.
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(g) The Corporation, at its cost and expense, shall operate, maintain, repair
and replace (including without limitation, repairs and replacements of a capital nature) all
elements of the Project. The Corporation's maintenance and repair obligations shall
include both day to day maintenance and repair and extraordinary maintenance and repair
and shall include maintenance, repair and replacement of all elements or systems of the
Project as are necessary in order to maintain the Project.. The Corporation will not defer
any required maintenance, repair or replacement (including, without limitation, repairs
and replacements of a capital nature) of any element of the Project and shall establish
adequate reserves therefore.
(h) The Corporation will not, without the City's consent, initiate any change
in the zoning classification of all or any portion of the Property.
6. Employment Requirements. Following the completion of the Project, the
Corporation covenants and agrees that it shall provide full -time employment and aggregate
compensation (to include salaries and base hourly wages, exclusive of fringe benefits) at the
Project at�the levels set forth on Exhibit D (the "Projected Employment"). Subject to matters of
force majeure, in the event that the total number of employees at the Project or the aggregate
compensation payable is less than the Projected Employment as of any Measurement Date (as
that term is defined below), then, subject to prior written notice from the City and no less than a
twelve (12) month opportunity to cure, future payments of the Contribution shall be reduced on a
pro rata basis, reflecting the proportion by which the level of actual employment or aggregate
compensation falls below the Projected Employment, but only so long as the deficiency in
employment or compensation continues to exist.
The Corporation shall submit, or cause to be submitted to the.City, either (i) a copy of the
summary page of the Corporation's UCT -101E or equivalent Quarterly Contribution/Wage
Report at or about the same time as it is submitted to the Wisconsin Department of Workforce
Development, or (ii) a copy of the Corporation's report to the Wisconsin Economic Development
Corporation ( "WEDC ") setting forth employment and aggregate payroll numbers at or about the
same time it is submitted to WEDC. The Corporation shall submit or cause -to be submitted
reasonable and customary hiring information to evidence such employment and the
Corporation's full -time equivalent employee population, including reports in substantially the
form attached as Exhibit E, and evidence of such employment shall be subject to the City's
reasonable onsite review and audit within ninety (90) days after submittal of such reports. The
review and audit rights shall apply to the number of employees, hours worked, and aggregate
compensation paid, but shall not include personal information such as names, addresses, and
social security numbers, or individual compensation information of employees.
For purposes of this Agreement, "full -time equivalent employee population" will be
determined as of December 31St of each calendar year (the "Measurement Date ") beginning with
December 31, 2016. Full -time equivalent employee population will be determined by adding:
(i) the total number of Full -Time Employees; -plus
(ii) the total number of Nan -Full -Time Employees multiplied by .50.
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11662749.3
A "Full -Time Employee" is an employee of the Corporation who is either a salaried
employee or a non - salaried employee regularly scheduled to work (and/or on leave) at least 38
hours per week and 1976 hours per year, including holidays and paid time off.
A "Non -Full -Time Employee" is an employee of the Corporation who is not a full -time
employee.
7. Damage/Destruction. In the event of fire, damage, condemnation, or any other
casualty to any part of the Project, the Corporation agrees, at its cost and expense, to rebuild,
repair and place the Project in,the condition it was in immediately prior to the casualty. The
Corporation shall not be relieved of its obligations to make payments under Section 13 as such
payments become due and payable under Section 13 as a result of fire, damage, condemnation or
other casualty or during the period of repair and rebuilding and replacement of the Project.
8. Default. The occurrence of any one or more of the following events shall
constitute a default hereunder:
(a) The Corporation or any successor shall fail to pay when due any amounts
due from it under this Agreement, and such failure continues for fifteen (15) days after
the Corporation has received a written notice of default; or
(b) Any representation or warranty made by the Corporation or any successor
in this Agreement or any document delivered by the Corporation or its successor pursuant
to this Agreement shall prove to have been false in a material way as of the time made or
given; or
(c) The Corporation or any successor shall materially breach or fail to
substantially perform timely or observe timely any of its material covenants or
obligations under this Agreement, and such failure shall continue for thirty (30) days
following notice thereof from the City to the Corporation (or such longer period of time
as is necessary to cure the default as long as the Corporation has commenced the cure of
the default within the thirty (30) day period and is diligently'.pursuing to cure the default
and as long as the default is cured not later than one hundred eighty (180) days following
notice thereof from the City); or
(d) The Project is not substantially completed on or before the Completion
Date (subject to matters of force majeure); or
(e) The Corporation shall: (i) become insolvent or generally not pay, or be
unable to pay, or admit in writing its inability to pay, its debts as they mature; or (ii)
make a general assignment for the benefit of creditors or to an agent authorized to
liquidate any substantial amount of its assets; or (iii) become subject of an order for relief
within the meaning of the United States Bankruptcy Code, or file a petition in
bankruptcy, for reorganization or to effect a plan or other arrangement with creditors; or
(iv) have a petition or application filed against it in bankruptcy or any similar proceeding,
and such petition, application or proceeding shall remain undismissed for a period of
ninety (90) days or more, or the Corporation shall file an answer to such a petition or
application, admitting material allegations thereof; or (v) apply to a court for the
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11562749.3
appointment of a receiver or custodian for any of its assets or properties or have a
receiver or custodian appointed for any of its assets or properties, with or without
consent, and such receiver shall not be discharged within ninety (90) days after its
appointment; or (vi) adopt a plan of complete liquidation of its assets.
9. Remedies. Upon the occurrence of any default (beyond any applicable notice and
cure period), the City may, at its option, pursue any one or more of the following remedies
concurrently or successively:
(a) Cease all future payments of the Contribution; or
(b) Pursue any or all of the rights and remedies available to the City at law
and/or in equity against the Corporation and/or the Project.
Except as may be otherwise specifically set forth herein, no remedy herein conferred
upon the City is intended to be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given under this Agreement,
and /or available to the City under the District Project Plan and any other covenants, restrictions,
documents or instruments governing the District, and/or now or hereafter existing at law or in
equity. No failure or delay on the part of the City in exercising any right or remedy shall operate
as a waiver thereof nor shall any single or partial exercise of any right preclude other or further
exercise thereof or the exercise of any other right or remedy. Notwithstanding any of the
foregoing authorizations, the City shall have no duty or obligation whatsoever with respect to
any of the matters so authorized.
J.O. Costs. The Corporation shall pay all reasonable, customary, and itemized fees,
costs and expenses actually incurred by the City, including administrative costs, attorneys' fees,
and consultants' fees, in connection with the creation and administration of the Tax Incremental
District and the District Project Plan, the negotiation, preparation and administration of this
Agreement and all documents and agreements executed in connection therewith, and the
enforcement of its rights against the Corporation under this Agreement, including without
limitation, the enforcement of such rights in the bankruptcy, reorganization or insolvency
proceeding involving the Corporation.
11. City's Right to Cure Default. In case of a failure by the Corporation to procure or
maintain insurance, or to pay any fee, assessment, charge, or tax arising with respect to the
Project or to comply with the terms and conditions of this Agreement or any other document,
contract or agreement affecting the Project, the City shall have the right, but shall not be
obligated, to effect such insurance or pay such fees, assessments, charges or taxes or take such
action as is necessary to remedy the failure of the Corporation to comply with the documents,
contracts or agreements affecting the Project, and, in that event, the cost thereof shall be payable
by the Corporation to the City.
12. Real Estate Taxes and Assessments. The Corporation shall pay timely to the City
generally applicable property taxes assessed and levied by the City on the Property under
applicable property tax laws, rules, rates, regulations and ordinances in effect from time to time.
Nothing in this Agreement shall impair any statutory rights of the City with respect to the
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assessment, levy, priority, collection, and/or enforcement of real estate property taxes. In
addition, the Corporation agrees to pay timely to the City all special assessments that may be
assessed or levied in connection with the Property under the applicable special assessment laws,
rules, regulations, ordinances and rates in effect at the time said special assessments are assessed
or levied.
13. Increment Guaranty. For property tax years commencing in 2016 and continuing
through the Termination Date, that Corporation and its successors and assigns shall pay property
taxes in an amount of not less than the Minimum Tax Liability. For any tax year during such
period in which the property taxes paid by the Corporation are less than the Minimum Tax
Liability, the Corporation covenants and agrees to make a payment in lieu of taxes to the City in
an amount equal to the shortfall between the Minimum Tax Liability and the amount of property
taxes actually paid by the Corporation. Said payment shall be due with the Corporation's final
installment payment of property taxes each year.
The Corporation shall not cause or permit the Property or any portion thereof to become
tax exempt unless condemned by a governmental entity. The Corporation further agrees that it
will place a restriction in any deed conveying all or any portion of the Property prohibiting any
use or ownership of the Property which would cause the Property, or any portion thereof, to
become tax exempt.
The Corporation's obligations under this Section 13 shall be secured by the City's right
of special assessment or by any other remedy available to the City by statute. If the Corporation
fails to pay timely any payment due under this Section 13, the City may, in addition to all other
remedies available to it in law or equity, levy the amount of the overdue obligation against the
Property as a special assessment pursuant to Wis. Stat. §66.0701. In connection therewith, the
Corporation: (i) acknowledges that the City has incurred costs for the payment or reimbursement
of the Project Costs and City Project Costs; (ii) agrees that the amount of the special assessment,
if levied consistent with this Agreement, constitutes a proper exercise of the City's authority to
levy special assessments in accordance with Wis. Stat. §66.0701; (iii) agrees that the allocation
of the City's costs to the Property is reasonable and commensurate with the special benefits
provided to the Property; (iv) agrees that the amount being assessed in accordance with this
Agreement does not exceed the value of the benefits accruing to the Property from the City's
expenditures identified herein; (v) consents to the imposition and levy of such special
assessments; (vi) agrees that the approval of this Agreement by the Oshkosh Common Council
shall be sufficient to authorize the levy of special assessments in accordance herewith, and that
no further procedural steps need be taken by the City; (vii) waives all special assessment notices,
hearings, and appeals .provided by Wis. Stat. §66.0701 or §66.0703; and (viii) acknowledges that
the City is relying on the terms of this Agreement, and specifically the terms of this subsection,
that such reliance is reasonable, and that the City's payment of its obligations to the Corporation
under this Agreement will be detrimental to the City if the provisions relating to special
assessments are not enforced and that a failure to enforce such agreements would be inequitable.
14. Indemnification. The Corporation hereby indemnifies, defends and holds the City
harmless from and against all loss, liability, damage and expense, including reasonable attorneys
fees, suffered or incurred by the City to the extent caused by the following: (a) the failure of the
Corporation or its contractors, subcontractors, agents, employees, or invitees to comply with. any
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environmental law, rule, regulation or ordinance, or any order of any regulatory or administrative
authority with respect thereto; (b) any release by the Corporation or its contractors,
subcontractors, agents, employees or invitees of petroleum products or hazardous materials or
hazardous substances on, upon or into the Project; (c) any and all damages to natural resources or
real property or harm or injury to persons resulting or alleged to have resulted from any failure
by the Corporation and/or its contractors, subcontractors and/or agents to comply with any law,
rule, regulation or ordinance or any release of petroleum products or hazardous materials or
hazardous substances as described in clauses (a) and (b) above; (d) claims arising on the Property
under the Americans with Disabilities Act, and any other laws, rules, regulations or ordinances;
(e) claims for third parties for injury to or death of any person on the Property; and (f) the failure
of the Corporation to maintain, repair or replace as needed any portion of the Project.
The term "hazardous substances" means any flammable explosives, radioactive materials,
hazardous wastes, toxic substances, or related materials, including, without limitation, any
substances defined as or included in the definition of "hazardous substances," "hazardous
waste," "hazardous materials," or "toxic substances" under any applicable federal or state or
local laws or regulations.
15.. Insurance. The Corporation shall maintain the following insurance policies issued
by insurers with a rating of at least "A -" and in a financial size category of at least "X" as
established by A.M. Best Company and licensed to do business in the State of Wisconsin: (i)
property insurance on the Addition with coverage limits equal to the full replacement cost of the
building and contents; (ii) commercial general liability insurance with limits of $1,000,000 per
occurrence and $5,000,000 in the aggregate; (iii) statutory worker's compensation insurance; and
(iv) automobile liability insurance with a combined single limit of $1,000,000.
Each insurance policy shall require the insurer to provide at least thirty (3 0) days prior
written notice to the City of any material change or cancellation of such policy.
16.. Nondiscrimination. The Corporation shall not use the Project in any manner to
permit discrimination. or restriction on the basis of race, creed, ethnic origin or identity, color,
gender, religion, marital status, age, handicap or national origin, and the Corporation shall
construct and operate the Project in compliance with all laws, rules, regulations and ordinances
relating to discrimination or any of the foregoing.
17. No Personal Liability. Under no circumstances shall any council member,
official, director, attorney, employee, or agent of a party have any personal liability arising out of
this Agreement, and no party shall seek or claim any such personal liability.
18. City Authorization. The execution of this Agreement by the City is authorized by
Resolution No. of the City's Common Council dated 12014.
19. Miscellaneous.
(a) Except as otherwise specifically set forth herein, the respective rights and
liabilities of the City and the Corporation in this Agreement are not assignable or
delegable, in whole or in part, without the prior written consent of the other party.
10
11662749.3
Provisions of this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
(b) No waiver, amendment, or variation of the terms of this Agreement shall
be valid unless in writing and signed by the City and the Corporation, and then only to
the extent specifically set forth in writing.
(c) All material applicable agreements, representations, warranties, covenants,
liabilities and obligations made in this Agreement and in any document delivered
pursuant to this Agreement shall remain effective during the Term of this Agreement.
(d) All communications or notices required or permitted by this Agreement
shall be in writing and shall be deemed to have been given: (i) upon delivery to an officer
or the person entitled to such notice, if hand delivered, or (ii) two business days following
deposit in the United States Mail, postage prepaid, or with a nationally recognized
overnight commercial carrier that will certify as to the date and time of delivery, air bill
prepaid, or (iii) upon transmission if by facsimile, any such communication or notice
shall be addressed as follows, unless and until any such party notifies the other in
accordance with this section of any change of address:
If to the City: City of Oshkosh
City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI, 54903 -1130
Attn: City Attorney .
Facsimile No. 920- 236 -5706
With a copy to: Godfrey & Kahn, S.C.
100 West Lawrence Street
Appleton, WI 54911
Attn: Michael J. Lokensgard
Facsimile: 920 - 830 -3530
If to the Corporation: Bemis Healthcare Packaging, Inc.
3500 N. Main Street
Oshkosh, WI 54901
Attn: President
Facsimile: 920-303-7002
With a copy to: Bemis Company, Inc.
P.O. Box 669
Neenah, WI 54957
Attn: General Counsel
Facsimile: 920-557-5130
11
11662749.3
(e) This Agreement and the documents executed pursuant to this Agreement
contain the entire understanding of the parties with respect to the subject matter hereof.
There are no restrictions, promises, warranties, covenants or understandings other than
those expressly set forth in this Agreement and documents executed in connection with
this Agreement. This Agreement and the documents executed in connection herewith
supersede all prior negotiations, agreements and undertakings between the parties with
respect to the subject matter hereof.
(f) This Agreement is intended solely for the benefit of the Corporation and
the City, and no third party (other than successors and permitted assigns) shall have any
rights or interest in any provision of this Agreement, or as a result of any action or
inaction of the City in connection therewith. Without limiting the foregoing, no
approvals given pursuant to this Agreement by the Corporation or the City, or any person
acting on behalf of either of them, shall be available for use by any contractor or other
person in any dispute with the construction of the Project.
(g) This Agreement shall be governed by, and construed and interpreted in
accordance, the laws of the State of Wisconsin applicable to contracts made and wholly
.performed within the State.
(h) This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but such counterparts shall together constitute but one in the
same Agreement. Facsimile or PDF signatures shall be deemed original signatures for all
purposes of this Agreement.
(i) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be in effect to the extent of such prohibition
or enforceability without invalidating the remaining provisions of this Agreement in such
jurisdiction of affecting the validity or enforcement of any provision in any other
jurisdiction.
(j) Nothing contained in this Agreement or any other documents executed
pursuant to this Agreement shall be deemed or construed as creating a partnership or joint
venture between the City and the Corporation or between the City and any other person,
or cause the City to be responsible in any way for the debts or obligations of the
Corporation or any other person or cause the Corporation to be responsible in any way
for the debts or obligations of the City or any other person. Each party represents,
warrants and agrees, for itself and its successors and assigns, not to make any assertion
inconsistent with its acknowledgement or with the acknowledgement and agreement
contained in the preceding sentence in the event of any action, suit or proceeding, at law
or in equity, with respect to the transactions which are the subject of this Agreement and
this paragraph may be pleaded and construed as a complete bar and estoppel against any
assertion by or for a party and its successors and permitted assigns, that is inconsistent
with its acknowledgement and agreement contained in the preceding sentence.
(k) Time is of the essence as to each and every obligation or agreement
contained in this Agreement.
12
1 1662749,3
(1) If any party is delayed or prevented from timely performing any act
required under this Agreement other than the payment of money, by reason of fire,
earthquake, war, terrorist act, flood, riot, strikes, labor disputes or shortages, government
restrictions, judicial order, public emergency, or other causes beyond the reasonable
control of the party obligated to perform, the performance of such act shall be excused for
the period of such delay and the time for the performance of any such act shall be
extended for a period equivalent to such delay.
(m) A memorandum of this Agreement may be recorded in the office of the
Register of Deeds of Winnebago County, Wisconsin, it being understood by the parties
that until termination of this Agreement, this Agreement will run with the land and will
be binding upon the Property. This Agreement inures to the benefit of the City and its
successors and assigns. The City shall have the right to provide a copy of this Agreement
in full to any person or entity requesting a copy of this Agreement. This Agreement shall
terminate upon the Expiration Date.
(n) The headings to this Agreement are for reference only and are not
intended to modify any of the terms and conditions of this Agreement.
(o) Nothing contained in this Agreement is intended to or has the effect of
releasing the Corporation from all applicable laws, rules, regulations and ordinances in
addition to compliance with all the terms, conditions and covenants contained in this
Agreement.
(p) This Agreement is the product of negotiation between the parties hereto
and no term, covenant or provision herein or the failure to .include a term, covenant or
provision shall be construed against any party hereto solely on the basis that one party or
the other drafted this Agreement or any term, covenant or condition contained herein.
(q) Upon mutual consent of the parties to. this Agreement., which consent any
party can withhold in its sole discretion, the parties can agree to submit disputes arising
under this Agreement to alternative dispute resolution.
(r) EACH PARTY TO THIS AGREEMENT HEREBY WAIVES TRIAL BY
JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM,
WHETHER CONTRACT OR TORT, AT LAW OR EQUITY, ARISING OUT OF OR
IN ANY WAY RELATED TO THIS AGREEMENT.
f SIGNATURE PAGES FOLLOW]
13
11662749.3
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
STATE OF WISCONSIN
COUNTY OF
CITY OF OSHKOSH, WISCONSIN
By:
City Manager
By:
City Clerk
}
} SS
Personally came before me this day of , 2014 the above - named
, to me known to be the City Manager of the City of
Oshkosh, Wisconsin and the person who executed the foregoing document and acknowledged
the same.
STATE OF WISCONSIN
COUNTY OF
}
} SS
}
Notary Public, State of
My commission:
Personally came before me this day of , 2014 the above -named
, to me known to be the City Clerk of the City of Oshkosh,
Wisconsin and the person who executed the foregoing document and acknowledged the same.
Notary Public, State of
My commission.:
[SIGNATURES CONTINUED ON NEXT PAGE]
14
11662749.3
Approved as to form:
I.
City Attorney
I hereby certify that the necessary provisions have been made to pay the liability which
will accrue under this Agreement.
STATE OF WISCONSIN
COUNTY OF
}
} SS
}
City Finance Director
BEMIS HEALTHCARE PACKAGING, INC,
By:
Its:
Personally came before me this day of ' , 2014 the above -named
, to me known to be the of Bemis
Healthcare. Packaging, Inc. and the person who executed the foregoing document and
acknowledged the same.
Notary Public, State of
My commission:
15
11662749.3
EXHIBIT A
Project Legal Description
A -1
EXHIBIT B
Increment Schedule
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EXHIBIT C
Opinion of Probable Cost
C -i
EXHIBIT D
Employment Projections
DATE
PROJECTED NUMBER OF
PROJECTED
ADDITIONAL
ADDITIONAL
EMPLOYEES
AGGREGATE BASE
COMPENSATION
December 31, 2015
105
$4,004,500.00
December 31, 2016
130
$5,005,000.00
December 31, 2017, and each
160
$6,503,624.00
December 31 thereafter
All numbers are in addition to the present number of employees working at the Project.
D -1
EXHIBIT E
Employment Report Form
CRITERIA
PROJECTED
ACTUAL
Employee Population
Full -Tune Employees
Full -time equivalency of Non -
Full -Time Employees
i
Full -Time Equivalent
Employee Population
i
Aggregate Base Compensation
Base Compensation/Full -Time
Equivalent Employee
Population
certify that the above information is true and correct to the best of my
lmowledge for the year ending December 31, 20_
BEMIS HEALTHCARE PACKAGING, INC.
By:
Name:
Its:
Date:
E -1