HomeMy WebLinkAboutDevelopment Agreement - Washington Elementary 929 Winnebago AveDocument Number
DEVELOPMENT AGREEMENT
Document Title
Between City of Oshkosh, a Wisconsin municipal corporation, and
Habitat for Humanity of Oshkosh, Inc., a Wisconsin non -stock
corporation.
The property is generally located on the closed former Washington
Elementary School site at 929 Winnebago Avenue, Oshkosh, WI 54901
and consists of Parcel Numbers:
Lot 1: Parcel 90204230100
Lot 2: Parcel 90204230200
Lot 5: Parcel 90204230500
Lot 6: Parcel 90204230600
Lot 11: Parcel 90204231100
Lot 12: Parcel 90204231200
Lot 14: Parcel 90204231400
Lot 15: Parcel 90204231500
Lot 17: Parcel 90204231700
LEGAL DESCRIPTION
DOC# 1956687
SUSAN SNYDER
REGISTER OF DEEDS
WINNEBAGO COUNTY, WI
RECORDED ON:
11/17/2025 03:02 PM
RECORDING FEE: 30.00
PAGES: 20
ding Area
and Return Address
City Attorney Office
P O Box 1130
Oshkosh WI 54903-1130
Being all of Lots 1, 2, 5, 6, 11, 12, 14, 15 and 17 of Washington School Plat, recorded as document number
1945204, Winnebago County Register of Deeds.
This instrument drafted by:
Lynn A. Lorenson, City Attorney
Oshkosh, WI 54903-1130 .
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DEVELOPMENT AGREEMENT
WASHINGTON SCHOOL REDEVELOPMENT
This Development Agreement (Agreement) is made as of the )-T day of 6(lbb(C 2025
by and between the City of Oshkosh, Wisconsin, a Wisconsin municipal corporation (City), and
Habitat for Humanity of Oshkosh, Inc., a Wisconsin Non -Stock Corporation (Habitat). This
Development Agreement serves as the entire agreement relating to the real property located on
the former Washington Elementary School site bounded approximately by Winnebago Avenue
and School Avenue.
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 providing 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 has acquired the former Washington School located at 929 Washington
Avenue, formally platted the property, demolished the existing school structures and has
entered a contract for the installation of necessary utilities for the newly created lots, all
for the purpose of redeveloping the property with workforce housing to be known as the
Washington School Workforce Housing Subdivision.
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E. The Parties intend by this Agreement to provide the framework by which the City
shall convey up to nine (9) of the lots within the Washington School Workforce Housing
Subdivision, the "Property", as more specifically defined below, to Habitat in phases
pursuant to the terms of this Agreement. Habitat agrees to develop the Property
conveyed to Habitat pursuant to the terms of this Agreement and a plan to be approved
by the Common Council, the "Habitat Project".
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:
Article I. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
"Qjy" means the City of Oshkosh, Wisconsin, a Wisconsin municipal corporation,
its successors and assigns.
"Completion Date" means the date all work related to the entire Habitat Project
must be completed, including all interior and exterior components, and including the
conveyance to qualified new home owner(s), which is December 31, 2032.
"Default" means the occurrence of one or more of the events described in Article
IV, below.
"Effective Date" means the date first identified in this Agreement as the date the
all parties intend these terms to begin.
"Habitat Project" means Habitat's acquisition of the Property, in the form of up to
nine (9) residential lots within the Washington School Workforce Housing Subdivision,
from the City in three phases, and construction of single-family affordable structures for
low to moderate income individuals on the Property, followed by Habitat's conveyance
of each lot to qualified families. The recorded plat for the entire former Washington
School site is attached as Exhibit A.
"Project Plans" means final detailed plans and specifications for the Project, and
all other improvements to be located on each residential parcel of the Property. Habitat
shall comply with City Design Standards for Single and Two -Family Homes - Oshkosh
Zoning Ordinance Section 30-241 for all their single-family dwellings. Habitat shall use
the approved Housing Specifications attached as Exhibit B hereto prepared for use for
the Washington School Workforce Housing Subdivision on all lots Habitat builds upon.
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"Property" means the land upon which the Habitat Project will be located. The
Washington School Workforce Housing Subdivision will be divided into approximately
Eighteen (18) separate parcels by Plat as allowed by law, with each parcel of sufficient
size to construct single family dwellings. Pursuant to this Agreement, the City shall
convey up to nine (9) lots from the Plat to Habitat, the "Property", for the Habitat Project.
"Start Date: means the date on which Habitat construction of at least one (1) single
family home on the Property has started. The start date shall be on or before July 1, 2026.
"Term" means the period of time from the Effective Date of this Agreement to the
Completion Date.
"Washington School Workforce Housing Subdivision" means the subdivision plat
created upon the site of the former Washington School located at 929 Washington Avenue
and bounded approximately by Winnebago Avenue and School Avenue.
Article II. City Representations and Obligations.
A. Subdivision Platting. The City shall be responsible for creating and recording the
Washington School Workforce Housing Subdivision plat consisting of the Eighteen (18)
residential lots as allowed by law, with each parcel of sufficient size to construct single
family dwellings.
B. Utilities.
(1) Stormwater - 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.
The City shall be responsible to prepare a grading and drainage plan for the
subdivision which shall show all drainage features and lot line grades and shall
comply with the City of Oshkosh Storm Water Ordinance and be approved by the
City of Oshkosh Department of Public Works. The plan may include a Storm
Water Management Plan, grading and drainage plans, and operating and
maintenance agreements. A copy of the final plan shall be available through the
Oshkosh Department of Public Works or through documents recorded with the
Winnebago County Register of Deeds, or both. City and Habitat shall cause each
of their lots to be built according to the approved Stormwater Management Plan.
(2) Sanitary Sewer and Public Water — The City shall install sanitary sewer and water
utility laterals for all lots within the plat. Installation shall be coordinated between
Habitat lots and City lots so that the impact to the neighborhood and the costs are
minimized.
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E. Conveyance of Property to Habitat. The City agrees to convey the Property to Habitat
pursuant to Article IV of this Agreement.
F. City to Develop Remaining Parcels. The City agrees that it shall take reasonable actions to
develop the remaining parcels in Washington School Workforce Housing Subdivision for
residential development.
G. Financial Incentives. The City agrees to offer or make eligible to Habitat lot purchasers
the same financial incentives or offers typically offered to home -buyers within the City
of Oshkosh, including but not limited to down payment assistance, subject to the
program eligibility requirements.
Article III. Habitat Representations and Obligations.
A. Warranties of Habitat. represents and warrants to the City as follows:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
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(6) 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.
B. Habitat Covenants. During the Term of this Agreement, Habitat covenants to the
City as follows:
(1) All work performed and materials furnished to construct and maintain the
Project shall be paid for when due.
(2) 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.
(3) The Project shall be constructed and maintained in a good and
workmanlike manner and substantially in accordance with the Project Plans and Habitat
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.
(4) 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.
(5) 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.
(6) Habitat will not, without the City's consent, initiate any change in the
zoning classification of all or any portion of the Property.
(7) 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.
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C. Acquisition of Lots. Habitat agrees to acquire the Property from the City
pursuant to the provisions of Article IV of this Agreement.
D. Construction of Homes on the Property. Habitat agrees to construct a
single-family home on each of the individual parcels comprising the Property it acquires
from the City. Construction shall commence on or before the Start Date and be completed
by the completion date. Habitat shall comply with City Design Standards for Single and
Two -Family Homes - Oshkosh Zoning Ordinance Section 30-241 for all their single-
family dwellings. Habitat shall use the approved Housing Specifications as shown on
Exhibit B attached hereto for all lots Habitat builds upon.
E. Utilities.
(1) Stormwater - 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.
The City shall be responsible to prepare a grading and drainage plan for the
subdivision which shall show all drainage features and lot line grades and shall
comply with the City of Oshkosh Storm Water Ordinance and be approved by
the City of Oshkosh Department of Public Works. The plan may include a
Storm Water Management Plan, grading and drainage plans, and operating
and maintenance agreements. A copy of the final plan shall be available
through the Oshkosh Department of Public Works or through documents
recorded with the Winnebago County Register of Deeds, or both. City and
Habitat shall cause each of their lots to be built according to the approved
Stormwater Management Plan.
Habitat shall make purchasers aware of the requirements of the approved
plans upon the conveyance of individual parcels to their clients.
(2) Sanitary Sewer and Public Water — The City shall install sanitary sewer and water
utility laterals for all lots within the plat. Installation shall be coordinated between
Habitat lots and City lots so that the impact to the neighborhood and the costs are
minimized. Habitat shall coordinate with the City to ensure the impact is minimal.
F. Damage; Destruction.
(1) While the Property is held in the name of Habitat, 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.
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(2) While the Property is held in the name of Habitat, 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.
G. 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.
H. 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.
Article IV. Conveyance of the Property.
A. Conveyance of Property to Habitat. Subject to compliance with the terms of this
Agreement, the City agrees to sell the Property to Habitat and Habitat agrees to
acquire the Property. The final configuration and dimensions of the Property shall
be established within the Subdivision Plat created by the City and the specific lots
within the Plat anticipated to be conveyed to Habitat shall be agreed upon by the
parties and attached as Addendum C to this Agreement. The conveyance of the
Property shall include all easements, reciprocal easement agreements and all other
property rights, whether or not of record, appurtenant to the Property and the use
of all rights -of -way (including public and private vehicular and pedestrian rights -
of -way), if any, abutting, adjacent, contiguous to or adjoining the Property.
B. Purchase Price. The purchase price for each lot on the Property shall be thirty-five
thousand dollars ($35,000.00) and other good and valuable consideration as
identified in this Agreement.
C. On or before the Closing Date, Habitat shall secure grants, funding or financing
that is satisfactory to Habitat for the purpose of acquiring and constructing the
Project.
D. Phasing. Habitat shall secure the funding to purchase four (4) lots by January 31,
2026. Habitat shall either purchase or release any rights or claim to develop the
remaining five (5) lots by December 31, 2029. If Habitat fails to provide written
notification of release, Habitat shall be deemed to have released all claims and
rights to develop under this Agreement for any lot that Habitat has not purchased
on or before December 31, 2029.
E. TITLE INSURANCE. No later than sixty (60) calendar days after execution of this
Agreement for the initial four lots and upon request of Habitat for the remaining lots,
City shall furnish to Habitat (i) a title commitment (the "Commitment") issued by the
Title Company covering the Property and showing title in fee simple to be vested in
City, and (ii) true, correct and complete copies of all documents described in the
Commitment. The Commitment shall: (a) be in the amount of the purchase price; (b)
name Habitat as the proposed insured; and (c) include a commitment for extended
coverage over all of the general exceptions, except matters which cannot be insured
over. Any loan policy premiums, additional provisions for extended coverage,
affirmative endorsements, or coverages in excess of the Insured Price shall be at
Habitat's sole cost. Habitat shall have ten (10) calendar days to notify City in writing
(the "Objection Notice") which of the liens, encumbrances and other matters
described therein which are unacceptable (the "Unpermitted Matters"). City shall
have thirty (30) days to remove such Unpermitted Matters or remedy same in a
manner satisfactory to Habitat, in City's sole and absolute discretion. If City is unable
or unwilling to remove any such Unpermitted Matters or remedy same in a manner
satisfactory to Habitat, in Habitat's sole and absolute discretion, Habitat shall have
the option of either (A) proceeding with this Agreement, in which event Habitat shall
be deemed to have waived any Unpermitted Matters not remedied by City and they
shall be deemed Permitted Exceptions, provided that City must cure at Closing all
liens and encumbrances of a definite or ascertainable amount, or (B) terminating this
Agreement, in which event neither party shall have any further obligations or
liabilities hereunder. Habitat shall exercise one of its options set forth in clause (A) or
(B) above by providing written notice thereof to City and, if Habitat fails to provide
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such notice within such time, then Habitat shall be deemed to have elected to waived
any Unpermitted Matters and proceed with this Agreement.
F. TITLE AND DEED. City shall deliver to Habitat at Closing a warranty deed
conveying title to the Property to Habitat in fee simple, free and clear of all liens,
encumbrances and rights of others, except the Permitted Exceptions (as defined
above).
G. CLOSING.
1 Closing Date. The sale of four (4) lots of the Property to Habitat shall be
consummated (the "Closing") on or before January 31, 2026; the sale of the
remaining lots shall be completed by such other date as is agreed upon by City
and Habitat, which shall in no event be no later than December 31, 2029 (the
"Closing Date").
2 Closing Documents.
(a) In addition to the Title Policy, City shall deliver to Habitat at Closing
the following, all in a form and substance reasonably acceptable to Habitat:
(i) A warranty deed conveying to Habitat fee simple title to the
Property, together with all easements and other appurtenances
thereto subject to the Permitted Exceptions, applicable building and
zoning regulations, real estate taxes for the year of Closing (if any),
and all matters which would appear on a current and accurate
survey of the Property (unless Habitat causes a survey to be
performed and certified to the Title Company).
(ii) Such other documents and instruments as may be required to
transfer City's interest in the Property to Habitat, including, without
limitation, (A) a general assignment of all property, rights and
interests constituting the Property that are not covered by the
instruments described Section 2(a)(i), above (including all service
contracts and other agreements, warranties, licenses and permits
benefiting the Property, or any part thereof), and (B) any consents
from third parties that are required to properly and legally effect the
transfer of the various rights, titles and interests contemplated
hereunder;
(iii) A FIRPTA Affidavit from City certifying that City is not a
"foreign person," "foreign estate," "foreign corporation" or "foreign
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partnership" or any other foreign entity as such terms are defined in
Section 1445 of the Internal Revenue Code and the income tax
regulations promulgated thereunder;
(iv) An owner's affidavit in form sufficient and acceptable to the
Title Company so as to allow it to eliminate the standard printed
exception relating to mechanic's liens from the title commitment and
policy; and
(v) Such other documents as reasonably may be required by Habitat
or the Title Company to consummate the transactions contemplated
by this Agreement.
(b) Habitat shall deliver to City at Closing the Purchase Price, plus or
minus prorations, together with any and all such documents as are
reasonably required by the Title Company to issue the Title Policy and
close the purchase by Habitat of the Property.
(c) City and Habitat shall jointly deliver (i) signed copies of a closing
statement and (ii) all required real estate transfer tax declarations,
returns or affidavits.
3. PRORATIONS.
a. Real Estate Taxes and Assessments. All real estate taxes and
assessments, if any, levied or assessed on or against the Property shall
be prorated on an accrual basis as of the Closing Date.
b. Operating and Utility Costs. Any operating and utility costs accrued
up to but not including the Closing Date shall be paid by City. Any such
expenses which are prepaid as of the Closing Date shall be credited to
City. Habitat shall be responsible to pay such expenses accruing from
and subsequent to the Closing Date. Any expenses that have accrued
up to the Closing Date but have not been billed to or paid by City as of
the Closing Date shall, to the extent possible, be paid by City (with such
payment evidenced to Habitat) at the time of Closing, or, if not so
payable, at Habitat's option, shall be credited to Habitat, provided that
such credit shall not release City of the obligation to make full payment
if the credit is insufficient for any reason.
c. Miscellaneous. All other items which are customarily prorated in
transactions similar to the transaction contemplated hereunder and
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which are not otherwise addressed in this Agreement, will be prorated
as of the Closing Date.
4. POSSESSION. Exclusive possession of the lots at each phase of the
Purchase of the Property shall be given by City to Habitat at the time of
Closing. Except as specifically set forth herein, Habitat shall accept the
Property in the condition that the Property is in on the Effective Date.
5. CLOSING COSTS. Habitat shall pay the following expenses incurred
in connection with the transactions described herein: (i) one-half of all
escrow and closing fees charged by the Title Company; (ii) the fee for the
recording of the deed and any mortgage(s); (iii) Habitat's legal fees and
expenses; (iv) any survey costs initiated by Habitat; and (v) the cost of any
requested or required loan policy, extended or excess coverage or title
insurance endorsements. City shall pay (i) the costs of the Commitment,
Title Policy (except as may be additional requested by Habitat), and the cost
of removing all Unpermitted Matters from title; (ii) one-half of all escrow
and closing fees charged by the Title Company; (iii)
City's legal fees and expenses; and (iv) all real estate transfer taxes.
6. REAL ESTATE COMMISSIONS. Each party represents and warrants
to the other that no person or entity acting as real estate broker, finder or
real estate agent brought about this Agreement. Each party agrees to and
does hereby indemnify the other from all loss, damage, cost, or expense
(including attorneys' fees) that the indemnified party may suffer as a result
of any claim or action brought by any person or entity acting or allegedly
acting on behalf of the other party in connection with this transaction.
G. AS -IS CONDITION. Except as specifically set forth within this Agreement, Habitat
shall accept the Property at Closing in its then "AS -IS, WHERE IS" condition with all
faults, and Habitat shall be deemed to have released and discharged City from any
and all claims or causes of action relating to the Property.
Habitat acknowledges that it will have had adequate opportunity to inspect the
Property, observe its physical condition and conduct such investigations and studies
on or over the Property as it deems necessary, and hereby waives any and all
objections to or complaints regarding the Property and its condition. Habitat further
assumes the risk of changes in applicable law and regulations relating to past, present
or future environmental conditions of the Property and the risk that adverse physical
characteristics and conditions, including the presence of hazardous materials or other
contaminants, may not have been revealed by its investigations.
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H. Survival. The provisions of this Agreement shall not be merged into any deed or
other document, and shall survive Closing.
Article V. Default.
The occurrence of any one or more of the following events shall constitute a default of
this Agreement:
(a) Habitat fails to pay when due any amount due from it under this
Agreement; or
(b) Any representation or warranty made by Habitat in this Agreement or any
document delivered by Habitat pursuant to this Agreement shall prove to have been false
in a material way as of the time made or given; or
(c) Habitat 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 files 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.
12. Remedies.
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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) Terminate this Agreement. Upon termination of the Agreement, any
parcels on which construction has not commenced, shall be reconveyed to the City at the
City's option for the purchase price under the terms of this Agreement.
(b) 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.
(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.
Article VI. Liabili .
(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.
Article VII. Miscellaneous.
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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.
B. City Right of First Refusal. If Habitat chooses not to build on any lot that
the City has conveyed to Habitat, Habitat shall offer to convey the lot back to the City for
a sum equal to Habitat's purchase price.
C. 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.
D. 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: Thomas J. Simon
2559 Badger Avenue
Oshkosh, WI 54904
With a copy to: Attorney Jason J. Hirschberg
Hirschberg Law, LLC
625 Bay Shore Drive
Oshkosh, WI 54901
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E. 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.
F. 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.
G. 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.
H. 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.
I. 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.
J. 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
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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 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.
L. 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.
M. 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.
N. 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.
O. 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.
P. Cooperation in Audits. Habitat agrees to fully and completely cooperate
with the City, the City's Auditors or other representatives, collectively "the City", in
connection with any internal or governmental investigation, administrative or regulatory
review or proceeding, or any internal or governmental audit. Such cooperation may
include, but shall not be limited to, responding to requests for document and/or other
records, making staff or others available upon reasonable notice for interviews or
providing statements, and providing information within a reasonable timeframe
requested. The City shall reimburse Habitat for reasonable direct expenses incurred in
connection with providing documents and records such as copying, postage and similar
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costs but shall not include wages, salaries, benefits or other compensation for employee
services provided under this paragraph.
Q. Waiver. Failure of either party to insist upon the strict performance
of terms and provisions of this agreement, or any of them, shall not constitute or
be construed as a waiver or relinquishment of that party's right to thereafter
enforce such term or provision, and that term of the provisions shall continue in
full force and effect.
City Authorization. The execution of this Agreement by the City is authorized by
Common Council Resolution No. 25-561 dated October 28, 2025.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
CITY OF OSHKOSH, WISCONSIN
By:
Rebecca Grill
Its: City Manager
B45P,NM.
Salinas
Its: City Clerk
Approved as to form:
By:
L A. Lorenson
Its: City Attorney
I hereby certify that the necessary provisions have been made to pay the liability which will
accrue under this Agreement.
lul' Calmes, Finance Director
STATE OF WISCONSIN
SS
COUNTY OF WINNEBAGO )
Personally, came before me this day of ! v �� �� �I� 2025, the above -named
Rebecca Grill, City Manager, and Darla M. Salinas, City Clerk, to me known to be the persons
who executed the foregoing document and acknowledged the same.
�tu'rwjn "5o Vt
Notary Public, State of WISV si
My commission expires: LTU
19
HABITAT FOR HUMANITY OF OSHKOSH, INC.
By. r A4 Board President
BY:
Board Secretary
AUTHENTICATION
Signature(s):
authenticated on
Title: Member of State Bar of Wisconsin
ACKNOWLEDGMENT��••,,
�OTgR `.�
STATE OF WISCONSIN = )
COUNTY OF WINNEBAGO-'--,,`���'�•......•' ���.�`'�
On this IL day of 3✓ 2025 personally
came before me the above named ff hrN
and f)redf , to me known to be the
persons who executed the foregoing
instrument and acknowledged the same.
� 1
Notary Public, State of Wisconsin
My commission expires:
'Fill