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HomeMy WebLinkAboutAmended Development Agreement Habitat for Humanity 2.25.2022 • Y ill l 1111 I 14501 8800817 AMENDED Tx:4600237 DEVELOPMENT AGREEMENT DOC# 1878672 NATALIE STROHMEYER Document Number Document Title REGISTER OF DEEDS WINNEBAGO COUNTY, WI RECORDED ON: 03/28/2022 11:33 AM RECORD F3(E 00 Between City of Oshkosh, a Wisconsin municipal corporation, and PA ��u Habitat for Humanity of Oshkosh, Inc., a Wisconsin non-stock MAR 3 1 2022 corporation Recording Area Property generally located on the east side of Grove Street, south of Name and lietWniA6drte& K S 8 F[I C Cleveland Avenue. City Attorney Office P0 Box 1130 Oshkosh WI 54903-1130 101G ,c.. 91103740301,91103740302, 91103740303,91103740307 Parcel Identification Numbers (PIN) LEGAL DESCRIPTION Lot 1 according to CERTIFIED SURVEY MAP filed in Volume 1 of Survey Maps on Page 7763,as Document No. 1851816;being part of Lot 2 of Certified Survey Map No.7082,being a part of Lots 1,2&3 of Block 2 in Carl Hennig's Addition,located in the North East'A of the North East'A of Section Twenty-four(24),Township Eighteen(18)North of Range Sixteen(16)East,in the Eleventh Ward,City of Oshkosh,Winnebago County,Wisconsin. And Lot 2 according to CERTIFIED SURVEY MAP filed in Volume 1 of Survey Maps on Page 7763,as Document No. 1851816;being part of Lot 2 of Certified Survey Map No.7082,being a part of Lots 1,2&3 of Block 2 in Carl Hennig's Addition,located in the North East'A of the North East'A of Section Twenty-four(24),Township Eighteen(18)North of Range Sixteen(16)East,in the Eleventh Ward,City of Oshkosh,Winnebago County,Wisconsin. And Lot 3 according to CERTIFIED SURVEY MAP filed in Volume 1 of Survey Maps on Page 7763,as Document No. 1851816;being part of Lot 2 of Certified Survey Map No.7082,being a part of Lots 1,2,3 & 10 of Block 2 in Carl Hennig's Addition,located in the North East%4 of the North East'A of Section Twenty-four(24),Township Eighteen(18) North of Range Sixteen(16)East,in the Eleventh Ward,City of Oshkosh,Winnebago County,Wisconsin. And Lot 1 according to CERTIFIED SURVEY MAP filed in Volume 1 of Survey Maps on Page 864,as Document No. 1873528;being Lots 1,2 and 3 of Certified Survey Map No.7864,being a part of Lots 10, 11, 12, 13, 14, 15 and 16 of Block 2 in Carl Hennig's Addition,located in the North East''/4 of the North East%4 of Section Twenty-four(24), Township Eighteen(18)North of Range Sixteen(16)East,in the Eleventh Ward,City of Oshkosh,Winnebago County, Wisconsin. This instrument drafted by: David J Praska Deputy City Attorney Oshkosh,WI 54903-1130 1 February 16, 2022 AMENDED DEVELOPMENT AGREEMENT This Development Agreement (Agreement) is made as of the I I day of Mtirc k 2022 by and between the City of Oshkosh, Wisconsin, a Wisconsin municipal corporation p rp (Ci ty), and Habitat for Humanity of Oshkosh, Inc., a Wisconsin Non-Stock Corporation (Habitat). This Amended Development Agreement replaces in its entirety the Development Agreement between these parties dated March 18, 2021, relating to the same real property on Grove Street, but which was fully executed but never recorded with the Winnebago County Register of Deeds. RECITALS A. The parties have shared or have similar interests in offering housing and neighborhood programs to those who need assistance that is not otherwise offered in the marketplace. Habitat's mission is to build simple, decent, affordable housing for low and moderate income persons and families. The City maintains programs that assist with the establishment and maintenance of viable urban communities by providing decent housing, suitable living environments and expanding economic opportunities for persons and families with low and moderate income. B. Habitat seeks to continue fulfilling its mission through expanding the types of affordable housing that is available to qualified low and moderate income families as well as expanding the housing opportunities available for those with disabilities. To that end, Habitat, along with its other partners, will construct affordable single family homes for low to moderate income families. C. The City seeks to continue fulfilling its programs assisting low income residents, potential homeowners with financial barriers, and neighborhood communities by providing Property on which Habitat will construct affordable single family housing, as well as provide certain financial assistance that will allow Habitat's goals to become a reality for the qualified low and moderate income persons and families selected for ownership. D. The City agrees to convey, and Habitat agrees to acquire, fee simple title to the Properties. Habitat agrees to develop the site pursuant to the terms of this Agreement and the plan approved by the Common Council on January 26, 2021 through Resolution 21-50 (Project). E. Habitat's ability to proceed with and complete this Project is contingent upon the City Contribution described in this Agreement. F. The City's ability to provide financial assistance for this Project is contingent upon Habitat carrying out its organizational goals through the development of the Properties as described in this Agreement. 2 February 25, 2022 • THEREFORE, in consideration of the foregoing Recitals which are incorporated into 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 City and Habitat promise, covenant, and agree as follows: 1. Definitions. As used in this Agreement, the following terms shall have the following meanings: "City" means the City of Oshkosh, Wisconsin, a Wisconsin municipal corporation, its successors and assigns. "City Contribution" means payments and/or financial assistance provided by the City to Habitat and/or qualified new home owners as set forth in Section 2, below. "Completion Date" means the date all work related to the Project must be completed, including all interior and exterior components, and including the conveyance to a qualified new home owner,which is December 31, 2026. "Default" means the occurrence of one or more of the events described in Section 12, below. "Effective Date" means the date first identified in this Agreement as the date the all parties intend these terms to begin. "Final Disbursement Date" means the date in which the plans for the last single family dwelling that Habitat intends to develop as part of this Project is approved by the City and the last City Contribution is transferred to Habitat. This date shall be April 01, 2027, and is intended to occur prior to the termination date of Tax Increment Financing District Number 14 (TIF#14), within which the Property is located and some funds generated by TIF#14 are being used to fund the City's Contribution. TIF#14's termination date is June 13, 2027. No funds can be distributed after the Final Disbursement Date unless an agreeable written modification of this Agreement is reached by the Parties. "Project"means Habitat's approved plan to acquire Property from the City and thereafter construct single family affordable structures on the Property as approved by the Common Council on January 26, 2021 through Resolution 21-50, followed by Habitat's conveyance of each lot to qualified families. The Property will be conveyed to Habitat in the form of four (4) Lots, three (3) of which will be in the size and form sufficient for building, while the fourth (4th) Lot will thereafter be divided into three (3) Lots in the size and form sufficient for building. The Project, therefore, will include the City's conveyance of property of sufficient size to construct six (6) single family dwellings. Sketches of the Project are attached as Exhibit A. "Project Plans" means final detailed plans and specifications for the Project, and all other improvements to be located on each Property. "Property" means the land upon which the Project will be located. The Property will be divided into Six (6) separate parcels as allowed by law, with each parcel of sufficient size to construct single family dwellings. The City shall be responsible for creating and recording a land division consisting of three (3) of the buildable lots and a fourth (4th) lot that will be 3 February 25, 2022 thereafter divided by Habitat after conveyance. The City agrees to assist Habitat with the subsequent division of the fourth lot as needed. "Start Date: means the date in which construction of at least one (1) single family home on the Property has started. The start date shall be on or before December 31, 2022. "Term" means the period of time from the Effective Date of this Agreement to the Completion Date. The Expiration date will correspond with the termination date of the Tax Increment Financing District Number 14 (TIF#14), within which the Property is located, and which is June 13, 2027. 2. City Obligations and City Contribution. (a) Conveyance of Property to Habitat. The City agrees to convey and Habitat agrees to purchase, fee simple title to individual parcels within the Property for Eleven Thousand Two Hundred Fifty dollars and NO/110 ($11,250.00) for each of the four (4) lots, for a total of Forty Five Thousand Dollars ($45,000.00) and other good and valuable consideration. Habitat is not obligated to purchase any parcels during the Term of this Agreement. Also, the particular parcel Habitat seeks to purchase within the Property shall be at the discretion of Habitat. The conveyance will be subject to this Agreement, along with all easements, covenants and restrictions of record, City Boards and Council approvals, municipal ordinances, and taxes (if any) for the year in which the conveyance takes place. (b) Site Preparation Assistance. The City will provide Habitat with a no-interest loan in the amount of Ninety Two Thousand Five Hundred and No/100 dollars ($92,500.00) (Site Preparation Assistance Loan) for each of the six (6) parcels that will eventually be created, for total forgivable, no interest, Site Preparation Assistance loans for the Project in the total amount of Five Hundred Fifty Five Thousand Dollars and NO/10 ($555,000.00), with these loans to be utilized by Habitat for costs related to site preparation associated with constructing each single family house on the Property. The loans shall be made in a lump sum at the time of the sale of the buildable parcel, or after buildable parcels are subsequently created through another Certified Survey Map. The Site Preparation Loan shall be used for excavation/backfill costs, storm water management costs, landscaping, foundation, utility extension and street repairs associated with utility extensions. Loans for each parcel shall be secured with a mortgage lien attached to the individual parcel, with the specific terms of the loan and mortgage set forth in separate documents for each parcel. A summary of the intended uses for the funds is attached as Exhibit B. The Site Preparation Loan shall not accrue interest, and Habitat shall not be required to make any payments on the Loan. However, if Site Preparation Assistance funds for a specific parcel remain unused after the intended uses for that parcel are completed, Habitat shall return any unused Site Preparation funds to the City within nine (9) months after Habitat has conveyed the parcel to its first homeowner. Notwithstanding any other term of this Agreement, all unused Site Preparation Assistant funds shall be returned to the City on or before May 31, 2027. The remaining balance of the Site Preparation Assistance loan, not including unused amounts to be returned, if applicable, shall be forgiven and the Mortgage satisfied when Habitat completes the Project and conveys the Property to the initial Habitat-approved new owners. (c) New Owner Assistance. The City will provide a homebuyer assistance loan (CDBG Homebuyer Assistance Loan) in an amount of up to Ten Thousand and NO/100 dollars ($10,000.00) to each new low-income eligible family selected by Habitat as qualified 4 February 25, 2022 homeowners for each new single family home. The CDBG Homebuyer Assistance Loan will be paid directly to the buyers and shall be secured with mortgage liens against each property, with the specific terms of the loan and mortgage set forth in separate documents. The CDBG Homebuyer Assistance Loans shall be without interest or periodic payments, except that the loans shall be due and owning, and repaid in full to the City in full at the time each initial low- income family purchaser conveys or transfers some or all of the Property to any third party. (d) Potential Unbuildable Lot. As described in paragraph 8, below, one or more of the newly created parcels may result in which construction of any single family dwelling may not be economically viable. For any such lot that after due diligence investigation results in a lot that is not economically viable to build on, then the City will reimburse Habitat for its costs of due diligence. Habitat will still agree to purchase the lot, but the cost of due diligence will be deducted from the $11,250.00 agreed upon purchase price of the other lots, and the resulting amount being the purchase price. If the due diligence costs exceed $11,250.00, then the purchase price will be one dollar($1.00) and other good and valuable consideration. 3. City Mortgages. The City anticipates the existence of at least two (2) mortgage liens that will be held by the City and placed against the each of the six (6) separate parcels that will be developed as part of the Project. Namely, mortgages associated with loans for Site Preparation Assistance, and eventually for CDBG Homebuyer Assistance. There will also be other mortgage liens placed against the Property by Habitat and others. It is the City's expectation that the first two mortgages, which will secure Building Construction and Site Preparation notes, will constitute the initial liens on the Property and therefore will initially be in first and second "place" in terms of liens on the Property. Upon completion of the Project and conveyance by Habitat to qualified buyers, the City's Site Preparation note will be forgiven and the associated mortgage lien will be satisfied. Upon Habitat's conveyance, the City's Community Development Block Grant Home Buyer Assistance loans and mortgages to the qualified buyers will be entered and recorded. Also upon conveyance, other notes and mortgages may be executed and attached to the Property. The order of liens to be placed against the property is one of the material considerations for the City to participate in this development and to enter into this Development Agreement. The City and Habitat agree to cooperate to ensure that the mortgage liens attached to the Property upon conveyance to qualified buyers reflect the following order unless the Parties agree in writing to an alternative arrangement. Habitat or Private Lending Financial Institution— 1st Mortgage City— Site Preparation Funds—2nd Mortgage (forgivable upon initial conveyance by Habitat) Fed. Home Loan Bank Homebuyer Assistance—2nd Mortgage (if needed)(at initial conveyance) City—CDBG Homebuyer Assistance—3`d Mortgage Habitat—2nd Mortgage (if necessary) 4. Conditions Precedent to City's Obligations. In addition to all other conditions and requirements set forth in this Agreement, the obligations of the City hereunder (including, without limitation, the obligation of the City to provide loans identified) are conditioned upon the completion of each and every of the following conditions to the City's satisfaction: (a) On or before the date of this Agreement, Habitat shall provide to the City opinions of its counsel reasonably acceptable to the City stating, among other things, that the persons executing this Agreement on behalf of Habitat are authorized to do so, that Habitat is duly authorized to enter into this Agreement, and other matters as are reasonably requested by the City. 5 February 25,2022 (b) On or before the date of this Agreement, Habitat shall have provided the City with (i) certified copies of their Articles of Organization and Operating Agreement, and (ii) a current Certificate of Status issued by the Wisconsin Department of Financial Institutions. (c) Unless all conditions contained in this Section 4 are satisfied within the time period(s) described above that are allowed for the satisfaction of such conditions, or such conditions are waived in writing by the City within the allowed time period(s), then the City may at its option and at its sole discretion, terminate this Agreement. In the event this Agreement is terminated, then no party to this Agreement shall have any further liability or other obligation to the other parties. 5. Representations, Warranties of Habitat. Habitat represents and warrants to the City as follows: (a) Habitat is a non-stock corporation duly organized by the State of Wisconsin, is current with all administrative entity formation requirements of the State, and has the power and all necessary licenses, permits, and franchises to own their assets and properties and to carry on its business. (b) Habitat is duly licensed or 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 their business or financial condition. (c) The execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate actions of Habitat, and constitute the valid and binding obligations of Habitat that are enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium, general principles of equity, and other similar laws of general application affecting the enforceability of creditors' rights generally. (d) The execution, delivery, and performance of Habitat's obligations pursuant to this Agreement will not violate or conflict with Habitat's Articles of Organization or other corporate operating agreements or bylaws, or any indenture, instrument or agreement by which Habitat is bound, nor will the execution, delivery or performance of Habitat's obligations pursuant to this Agreement violate or conflict with any law applicable to Habitat or to the Project. (e) There is no litigation or proceeding pending or affecting Habitat, or, to the best of Habitat's knowledge, threatening Habitat or the Project, that would adversely affect the Project or Habitat, or the enforceability of this Agreement, the ability of Habitat to complete the Project or the ability of Habitat to perform its obligations under this Agreement. (f) To the best of Habitat'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 Habitat is not in default (beyond any applicable notice and cure period) of any of its obligations under any other agreement or instrument to which Habitat is a party or an obligor. 6 February 25, 2022 6. Habitat Covenants. During the Term of this Agreement, Habitat, and their successors and assigns, covenants to the City as follows: (a) All work performed and materials furnished to construct and maintain the Project shall be paid when due. (c) The construction and maintenance of the Project will 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, and ordinances, all building codes and ordinances of the City, and all environmental laws, rules, regulations, and ordinances. (d) The Project shall be constructed and maintained in a good and workmanlike manner and substantially 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 those liens and encumbrances permitted by this Agreement. (e) Habitat shall pay or cause to be paid prior to delinquency all federal, state and local taxes related to the Project. All operating expenses in connection with the Project shall be paid when due. (f) 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 shall be obtained and be in effect at all times. (g) Habitat will not, without the City's consent, initiate any change in the zoning classification of all or any portion of the Property. (h) All terms and requirements of the City's loans shall be complied with. (i) If one of the parcels Habitat purchases is not economically buildable as described in paragraph 2(d), above, Habitat agrees to maintain that lot as green space and/or developed for passive or active recreation. Habitat shall be allowed to develop its own terms of use for the parcel, provided such terms of use are consistent with and comply with all local, state, and federal laws and regulations. 7. Stormwater Management. The Property must comply with storm water requirements as identified in the Oshkosh Municipal Code, or other local, state, or federal rules, regulations, or laws. These requirements shall remain in place regardless of whether this Agreement remains in effect. The requirements may include a Storm Water Management Plan, grading and drainage plans, and operating and maintenance agreements which will be available through the Oshkosh Department of Public Works. A complete, current version of the storm water requirements will at all times be available through the Department of Public Works, or through other documents recorded with the Winnebago County Register of Deeds, or both. 8. Site / Environmental Issues. The Property is part of the former Mercy Medical Center campus and, more specifically, is located near or on the location of Mercy's boiler building which was razed a number of years ago. The City believes that some or all of the foundation was collapsed into the ground and as a result, may remain under some or all of the Property. The City has undertaken some 7 February 25,2022 initial borings on the property to assess its condition. The City is unaware of any conditions on the Property that would result in the applicability of environmental rules, regulations, and laws. The City has shared with Habitat its findings regarding the property, and Habitat affirmatively states that it is comfortable with its knowledge of the Property condition and accepts it in its condition upon conveyance. 9. Damage; Destruction. (a) In the event of fire, damage, or any other casualty to any part of the Project, Habitat shall, at its cost and expense, rebuild, repair and replace the Project in the condition it was in immediately prior to the casualty and shall otherwise complete the Project. (b) If the Project is required to be rebuilt or repaired or replaced, then the Project shall be rebuilt, repaired or replaced in accordance with plans and specifications prepared and approved by the City for Habitat's use. Habitat agrees to apply any necessary portion of the insurance proceeds to rebuild, repair and replace the Project. The proceeds of insurance shall be used for the replacement, rebuilding or repair of the Project. Any amount required in excess of insurance proceeds for rebuilding, repair and/or replacement of the Project shall be paid by Habitat. 10. City's Right to Cure Default. In case of a failure by Habitat to procure or maintain insurance, or to pay any fees, assessments, charges or taxes arising with respect to the Project or to comply with the terms and conditions of this Agreement or any other document, contract or agreement effecting 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 effecting the Project, and, in that event, the cost thereof shall be payable by Habitat to the City. 11. Real Estate Taxes and Assessments. Unless otherwise exempt, Habitat 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 assessment, levy, priority, collection, and/or enforcement of real estate property taxes. In addition, Habitat agrees to timely pay 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. 12. Restrictions on the Use or Sale of Property. The City has invested significant amounts of time and tax dollars into this Property. Therefore, it is in the public's best interest that for the Term of this Agreement: that the Property remains in the ownership of a taxable entity, and that this Agreement prohibits the future inclusion of deed restrictions that would exclude or inhibit potential uses for any development on the Property that is otherwise compliant with the Zoning Ordinance; that after Habitat conveys the property, it shall not be conveyed to or owned by any tax-exempt entity for the Term of this Agreement; and that no additional deed restriction shall be placed on the Property which would constrain or limit the use of the Property in any way. The City may, at its discretion, also insert these restrictions within the deed and transfer documents at the time of conveyance to Habitat. 8 February 25, 2022 13. Nondiscrimination. Habitat 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 Habitat shall construct and operate the Project in compliance with all laws, rules, regulations and ordinances relating to discrimination or any of the foregoing. 14. Default. The occurrence of any one or more of the following events shall constitute a default of this Agreement: (a) Habitat, or any successor, fails to pay when due any amount due from it under this Agreement; or (b) Any representation or warranty made by Habitat, or any successor, in this Agreement or any document delivered by Habitat, or any successor pursuant to this Agreement shall prove to have been false in a material way as of the time made or given; or (c) Habitat, or any successor, breaches or fails to substantially perform timely or observe timely any of its covenants or obligations under this Agreement, and such failure shall continue for thirty (30) days following notice thereof from the City to Habitat (or such longer period of time as is necessary to cure the default as long as Habitat 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) Habitat: (i) becomes insolvent or generally does not pay, or be unable to pay, or admits or states in writing that it is unable to pay, its debts as they mature; or(ii) makes a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its assets; or (iii) become the 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) has a petition or application filed against it in bankruptcy or any similar proceeding, and such petition, application or proceeding is not dismissed within ninety (90) days after filing, or Habitat files an answer to such a petition or application in which material allegations thereof are admitted; or (v) applies to a court for the 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 is not discharged within ninety (90) days after appointment; or (vi) adopts a plan of complete liquidation of its assets. 15. Remedies. Upon the occurrence of any default, without further notice, demand or action by any kind by the City, the City may, at its option, pursue any one or more of the following remedies concurrently or successively: (a) Pursue any or all of the rights and remedies available to the City at law and/or in equity against Habitat, the Property, and/or the Project. (b) Habitat has represented to the City that they maintain a separate agreement which describes their respective obligations to perform the tasks described in this Development 9 February 25,2022 Agreement and to thereafter receive the benefits for performing these tasks. The City remains only interested in the appropriate and lawful use of public funds, the development of the Property, and the timely completion of the Project. Therefore, the Parties agree that Habitat is responsible to the City for all terms, conditions, warranties, and covenants described herein, regardless of whether any description uses the connector "and," "or," or "and/or." The City may take any enforcement action against either or both at its sole discretion. (c) 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 any other covenants, restrictions, documents or instruments, 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. 16. Liability. (a) 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. (b) Indemnification. While the City is providing funding through loans and other support for the Project, it remains a Habitat project and Habitat is responsible for the Property and activities related to the Property and Project after the City conveys it to Habitat. Therefore, Habitat covenants and agrees to protect and hold the City of Oshkosh harmless against all actions, claims, and demands which may result from the intentional or negligent actions of Habitat, its partners, agents, and assigns, its employees, volunteers, contractors, or subcontractors related however remotely to the performance of this Agreement or be caused or result from any violation of any law or administrative regulation and shall indemnify and reimburse to the City all sums, including court costs, attorneys fees, and punitive damages which the City may be obliged or adjudged, by a court of competent jurisdiction, to pay on any such claims or demands within thirty (30) days of the date of the City' written demand for indemnification and/or reimbursement for those actions, claim, and demands caused by or resulting from the intentional or negligent acts as specified in this paragraph. 17. City Authorization. The execution of this Agreement by the City is authorized by Common Council Resolution No. 21-50 dated January 26, 2021. 18. Miscellaneous. (a) No Assignment without Consent. Except as otherwise specifically set forth herein, the respective rights and liabilities of the City and Habitat in this Agreement are not assignable or delegable, in whole or in part, without the prior written consent of the other party. Provisions of this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties. 10 February 25, 2022 • (b) Modifications. No waiver, amendment, or variation of the terms of this Agreement shall be valid unless in writing and signed by the City and Habitat, and then only to the extent specifically set forth in writing. (c) Notices. 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 Attn: Director of Community Development 215 Church Avenue Post Office Box 1130 Oshkosh, WI 54903-1130 With a Copy to: Oshkosh City Attorney's Office 215 Church Avenue Post Office Box 1130 Oshkosh, WI, 54903-1130 If to Habitat: Habitat for Humanity of Oshkosh, Inc. Attn: Executive Director 2559 Badger Avenue Oshkosh, WI 54904 With a copy to: Attorney (d) Entire Agreement. 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. (e) No Third Party Beneficiary. This Agreement is intended solely for the benefit of Habitat 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 Habitat 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. 11 February 25, 2022 (f) Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Wisconsin applicable to contracts made and wholly performed within the State, with the venue of any dispute being Winnebago County, Wisconsin. (g) Counterparts. This Agreement may be executed in several counterparts. Each counterpart shall be deemed an original, with each counterpart collectively constituting but one in the same Agreement. Facsimile signatures shall be deemed original signatures for all purposes of this Agreement. (h) Severability of Provisions. 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 or affecting the validity or enforcement of any provision in any other jurisdiction. (i) No Partnership or Joint Venture. 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 Habitat, or between the City and any other person or entity related to the Project, or cause the City to be responsible in any way for the debts or obligations of Habitat, or of any other person or entity related to the Project, or cause Habitat to be responsible in any way for the debts or obligations of the City. The City and Habitat represent, warrant and agree, for themselves and their successors and assigns, not to make any statements or assertions inconsistent with this 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 anyassertion byor forapartyand its successors andpermitted assigns, that is inconsistent with its acknowledgement and agreement contained in the preceding sentence. (j) Time of the Essence. Time is of the essence as to each and every obligation or promise contained in this Agreement. Any delay by the City in enforcing any obligation or promise shall not waive the City's ability to expect that timely completion of obligations and/or promises. (k) Force Majeure. 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. (1) Recording. This Agreement, or a memorandum of this Agreement in lieu of the full Agreement, may be recorded in the office of the Register of Deeds of Winnebago County, Wisconsin. It is understood by the parties that until Expiration Date, this Agreement will run with the land and will be binding upon the Property. 12 February 25, 2022 (m) Headings. The headings to this Agreement are for reference only and are not intended to modify any of the terms and conditions of this Agreement. (n) No Drafting Presumptions. This Agreement is the product of negotiation between the parties and as a result no term, covenant or provision herein or the failure to include a term, covenant or provision shall be construed against either party hereto solely on the basis that one party or the other drafted this Agreement or any particular term, covenant or condition contained herein. 19. Other Approvals. In addition to any approvals required under this Agreement, Habitat shall be required to obtain all approvals, consents, and licenses as may be required by any governmental or non-governmental authority in connection with the Project, including, without limitation, all building permits, Project Plan approvals, storm water approvals, and zoning approvals. Habitat's compliance with the terms of this Agreement shall not relieve Habitat from complying with all applicable federal, state and local laws, rules, regulations and ordinances in connection with the Project. To the extent any governmental or non-governmental entity imposes different or more restrictive conditions on Habitat, or the Project, compliance by Habitat with the terms of this Agreement shall not relieve Habitat from complying with such different or more restrictive conditions. Likewise, any less restrictive conditions imposed on Habitat, or the Project by any governmental or non-governmental authority shall not relieve Habitat, or the Project from complying with all of the terms and conditions of this Agreement. [SIGNATURE PAGES FOLLOW] 13 February 25, 2022 • IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. CITY OF OSHKOSH, WISCONSIN By: i£-i Ma A. Rohloff Its: City Manager By: ;7 2�L&)yO J si Balcom Its: City Clerk Approv d as to form: r B : A. Loren Its: City Attorney I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this Agreement. A--v_ 4 Russ Van Gomp , Finance Director STATE OF WISCONSIN ) ) SS COUNTY OF WINNEBAGO ) h / Personally came before me this I day of IV COI , 2022, the above-named Mark A. Rohloff, City Manager, and Jessi Balcom, City Clerk, to me known to be the persons who executed the foregoing document and acknowledged the same. uk otary Public, State of isco sin My commission expires: 1 115) 403 [SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE] • Personally cane before me this day of March, 2022, the above -named Russ Van Gompel , Finance Director, to me known to be the person who exec the r oing document and acknowledge'.\ the same. Notary Publi , State of Wisconsin My commission exs~i-res : t 1 rtabi .4 February 25,2022 14 HABITAT FOR HUMANITY OF OSHKOSH, INC. By: Tom Perry, Board Vic sident By: /4L) John Koker, Board Secretary AUTHENTICATION ACKNOWLEDGMENT Signature(s): STATE OF WISCONSIN ) ) ss. authenticated on COUNTY OF WINNEBAGO ) On this -14" day of March, 2022 personally came Title: Member of State Bar of Wisconsin before me the above named Tom Perry and John Koker,to me known to be the persons who executed the foregoing instrument and acknowledged the same. VNotar blic, State isconsin My commission-Aires: jS q ryQn f 15 February 25, 2022 5 e g}g} q • q!li ^ IM'HSONHSO 311 1J31I HDal V = Y I a i 139 S OtlONB SE£I 0 M ig? 9J99N SUM 1 ) 3WOH,ILINbWf1H 2iOd lylI9dH 1 3 H J & 8 =II' 4 E . . a 7 _I . g x i. a A W I .11III III C Oil H .. 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