HomeMy WebLinkAbout17. 16-198APRIL 26, 2016 16-198 RESOLUTION
(CARRIED___7-0____LOST_______LAID OVER_______WITHDRAWN_______)
PURPOSE: APPROVE DEVELOPER AGREEMENT WITH HABITAT FOR
HUMANITY OF OSHKOSH, INC.; APPROVE LAND DISPOSITION
AT NORTHEAST CORNER OF GROVE STREET AND EAST
PARKWAY AVENUE
INITIATED BY: COMMUNITY DEVELOPMENT
WHEREAS, the City's Strategic Plan identifies the need to strengthen
neighborhoods through public and private funding incentives to provide affordable
housing within the community; and
WHEREAS, Habitat for Humanity of Oshkosh, Inc., the Oshkosh/Winnebago
County Housing Authority and the City of Oshkosh propose to collaborate on construction
of a twindominium at the northeast corner of Grove Street and East Parkway Avenue that
will be handicap accessible for income qualified low to moderate income property owners;
and
WHEREAS, it is proposed to sell the property at the northeast corner of Grove
Street and East Parkway Avenue to Habitat for ONE DOLLAR AND NO/100 ($1.00) to
facilitate development of said project.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper City officials are hereby authorized and directed to enter into a
Developer Agreement with Habitat for Humanity of Oshkosh, Inc. for construction of a
twindominium at the northeast corner of Grove Street and East Parkway Avenue, in
substantially the same terms as attached hereto, any changes in the execution copy being
deemed approved by their respective signatures, and to carry out all actions necessary
to implement the City's obligations under the Developer Agreement.
BE IT FURTHER RESOLVED that the Common Council of the City of Oshkosh
hereby approves of the land disposition of proposed Lot 1 (per the attached map) at the
northeast corner of Grove Street and East Parkway Avenue to Habitat for Humanity of
Oshkosh, Inc. and the proper City officials are hereby authorized and directed to execute
any and all documents necessary for purposes of same.
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O1HKOlH
ON THE WATER
MEMORANDUM
TO: Honorable Mayor and Members of the Common Council
FROM: Darryn Burich
Director of Planning Services
DATE: April 21, 2016
RE: Approve Developer Agreement with Habitat for Humanity of Oshkosh, Inc;
Approve Land Disposition at Northeast Corner of Grove Street and East
Parkway Avenue (Plan Commission Recommends Approval)
BACKGROUND
The City Council is being asked to approve finro items related to the redevelopment of a
parcel of land located on the northeast corner of the 600 block of Grove Street between
Parkway Avenue and Cleveland Avenue. The subject area is a 1.24 acre (approx. 54,000
square feet) single parcel of land which has been vacant since the demolition of the former
Mercy Hospital generator/maintenance structure that had previously been on the center of
the site. The property is also located in TID #14 — Hazel Street Redevelopment Area. The
City of Oshkosh acquired the subject site in 2015 from Winnebago County after the property
was foreclosed on due to unpaid taxes.
The proposed development includes construction of a two-unit handicap accessible
condominium with attached garage structures. The proposed Planned Development has
been submitted as a separate item on this agenda and the City Plan Commission has
recommended approval of the proposed project.
ANALYSIS
The City has been working with Habitat for Humanity Oshkosh and the Oshkosh/Winnebago
County Housing Authority to facilitate the development of this project. The City is proposing to
dispose of a 110 foot by 120 foot, (.33 acres), of land from the existing lot which if approved
would be sold to Habitat for Humanity Oshkosh. The proposed land disposition is in the best
interest of the city as it will allow for development of the condominium project and will add tax
base and further implement redevelopment of the area. Additionally the project will provide
new handicap accessible dwellings in an area of the community where there is predominantly
older housing stock not built with accessibility in mind.
On April 12, 2016 the Habitat for Humanity Oshkosh Board unanimously approved the
attached Development Agreement. The key elements of the Development Agreement are:
1. The Developer will build a two-unit handicap accessible condominium which will be
sold to income qualified low-to-moderate income homebuyers.
2. The City will convey the subject site to the Developer for $1.
3. The City will provide the Developer with two (2) no-interest deferred loans in the
amount of $10,000 ($10,000/unit) for building construction assistance which the
developer will transfer to the future income qualified homebuyers at the time of sale.
4. The City will prouide down payment assistance in the forrn of a r�o-ir�t�r�st deferred
loan in the amount of $10,000 to each of the initial fiwo (2) income qualified low-to-
moderate homebuyers.
5. The City will provide the Developer a no-interest loan for $75,212 site preparation and
infrastructure improvements associated with the development which will be forgiven
upon sale of the property to income qualified low-to-moderate income homebuyers.
6. The City may provide the Developer additional funds for unknown site preparation and
infrastructure costs in an amount not to exceed 15% of the original site preparation
and infrastructure loan. Additional funds requested by Habitat may be provided solely
at the discretion of the City.
7. The Developer must comply with storm water requirements as identified in the
Oshkosh Municipal Code.
8. Upon construction, the twindo units and property may only be purchased by a taxable
entity for the life of TIF 14, which is June 13, 2027.
FISCAL IMPACT
The available cash balance within TID #14 will be used to fund the costs associated with site
preparation and infrastructure improvements ($75,212). The construction loans which total
$20,000 ($10,000/unit) will be funded with available Healthy Neighborhood Initiative (HNI)
funds. The homebuyer assistance loan will be funded with available Community Development
Block Grant (CDBG) funds ($20,000 ($10,000/unit)). By increasing the assessed value in TID
#14 the City will be able to recapture a portion of the costs associated with site preparation
and infrastructure. Additionally, the City's investment will be leveraged by additional funding
provided by Habitat for Humanity Oshkosh and the Winnebago County Housing Authority.
RECOMMENDATION
The Plan Commission recommended approval of the planned development, land disposition,
release of easements, and right-of-way dedication at its November 17, 2015 meeting.
Res ctfully Submitted,
`���/U✓Iti.,
Darryn Burich
Director of Planning Services
Approved,
���
Mark Rohloff
City Manager
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DEVELOP�v�EN�' A�ItEEMENT
This Development Agreement (Agreement) is made as of the day of , 2016 (Effective
Date) 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).
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 income 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 of low and moderate income.
B. Habitat seeks to continue fulfilling its mission through expanding the types of affordable housing
that is available to low income families as well as expanding the housing opportunities available for those with
disabilities. To that end, Habitat along with the Winnebago County Housing Authority and its other partners
will construct a fully handicap accessible residential "twindominium" structure within the City.
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 a"twindominium," as well as provide certain financial assistance that will allow Habitat's goals
to become a reality for the low-income families selected for ownership.
D. Habitat agrees to acquire fee simple title to the Property and thereafter implement a
condominium plat on the Property, and then develop the site pursuant to the terms of this Agreement and the
plan approved by the Common Council on , 2016 through Resolution 16-_ (Project).
E. Habitat's ability to proceed with and complete this Project is contingent upon the City providing
financial assistance pursuant to the terms and conditions set forth in this Agreement.
F. The City's ability to provide financial assistance for this Project is contingent upon Habitat
carrying out its organizational goals as well as the terms and conditions set forth in this Agreement.
THEREFORE, in consideration of the foregoing Recitals which are incorporated hereto 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:
l. Definitions. As used in this Agreement, the following terms shall have the following meanings:
"Citv" means the City of Oshkosh, Wisconsin, a Wisconsin municipal corporation, its successors
and assigns.
"City Contribution" means payments provided by the City to Habitat as set forth in Section 2(b),
below.
"Completion Date" means the date the Project must be completed, including all interior and
exterior components, which is December 1, 2016.
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March 16, 2016
"Default" means the occurrence of one or more of the events described in Section 12, below.
"Pro'ect" means Habitat's approved plan to acquire Property from the City and thereafter
construct one fully handicapped accessible residential "twindominium" on the Property as approved by
the Common Council on , 2016 through Resolution 16- , followed by Habitat's
conveyance of each unit to qualified families. The Project will also include the formation of a
condominium on the Property to allow the sale of each of the two units to separate, individual owners.
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 the Property.
"PropertX" means the parcel of land upon which the Project is located. The Property is Lot 1 of
Certified Survey Map , which was recorded with the Winnebago County Register of Deeds on
, 2016, as Document Number . CSM is attached as Exhibit B.
"Term" means the period of time from the Effective Date of this Agreement to the Expiration
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 Obli atg ions.
(a) Conve_yance of Property to Habitat. The City will convey fee simple title to the Property
to Habitat for one dollar ($1.00) and other good and valuable consideration. 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) Buildin� Construction Assistance. The City will provide Habitat with two no-interest
loans with each in the amount of Ten Thousand and No/100 dollars ($10,000.00) (collectively, Building
Loan) to be utilized at Habitat's discretion solely for costs associated with constructing the
"twindominium" on the Property. The Building Loan shall be secured with mortgage liens attached to
the Property, with the specific terms of the loan and mortgage to be set forth in separate documents. The
Building Loan shall not accrue interest, and Habitat shall not be required to make any payments on the
Building Loan. After completion of the Project, a Building Loan and associated Mortgage shall be
assigned by Habitat to the Habitat-approved new owner of each condominium unit when Habitat
conveys the Property to the new owner. The Building Loan shall become due and payable without
further notice when the initial Habitat-approved new owner conveys or transfers some or all of the
Property to any other person or entity for any reason.
(c) Site Preparation Assistance. The City will provide Habitat with a no-interest loan in the
amount of Seventy Five Thousand Two Hundred Twelve and No/100 dollars ($75,212.00) (Site
Preparation Loan) to be utilized by Habitat for costs related to site preparation associated with
constructing the "twindominium" on the Property. The Site Preparation Loan shall be secured with a
mortgage lien attached to the Property, with the specific terms of the loan and mortgage set forth in
separate documents. A summary of the intended uses for the funds is attached as Exhibit C. Due to
remaining uncertainties related to the Property's condition, Habitat may be eligible for additional funds
in an amount not exceeding fifteen percent (15%) of the original loan amount. Additional funds
requested by Habitat may be provided solely at the discretion of the City. The Building Loan shall not
accrue interest, and Habitat shall not be required to make any payments on the Loan. The Site
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March 16, 2016
Preparation Loan shall be forgiven and the Mortgage satisfied when Habitat completes the Project and
conveys the Property to the initial Habitat-approved new owners.
(d) New Owner pown Payment Assistance. The City will provide a down payment
assistance loan (Down Payment Loan) in the amount of Ten Thousand and NO/100 dollars ($10,000.00)
to each of the initial two low-income families selected by Habitat as qualified homeowners for the two
units comprising the twindominium. The Down Payment Loan will be paid directly to the buyers and
shall be secured with mortgage liens against the property, with the specific terms of the loan and
mortgage set forth in separate documents. The Down Payment 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.
3. Citv Mortgages. The City anticipates the existence of at least three (3) mortgage liens that will
be held by the City and placed against the Property. Namely, mortgages associated with loans for Building
Construction, Site Preparation, and eventually New Owner pown Payment 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.
Unit 1
Habitat — 1 St Mortgage
Fed. Home Loan Bank Homebuyer Assistance
City — Healthy Neighborhoods Initiative Funding
City — CDBG Homebuyer Assist.
Housing Authority — HOME Homebuyer Assist.
Habitat — 2"d Mortgage (if necessary)
Unit 2
Habitat — lst Mortgage
Fed. Home Loan Bank Homebuyer Assistance
City — Healthy Neighborhoods Initiative Funding
Housing Authority — HOME Homebuyer Assist.
City — CDGB Homebuyer Assist.
Habitat — 2nd Mortgage (if necessary)
4. Conditions Precedent to Citv's Obli at� ions. 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.
(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.
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March 16, 2016
(c) On or before the date any funds are provided by the City to Habitat, Habitat must have
created and recorded all necessary condominium documents for the Property that are anticipated,
necessary, and required to carry out the intentions and purposes of the Project.
(d) 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, subj ect 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 Proj ect or the
ability of Habitat to perform its obligations under this Agreement.
(� 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. 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
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March 16, 2016
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.
(� 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.
7. Stormwater Mana ement. 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 / Envirorunental 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 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. Dama�e; 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 prepaxed 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.
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March 16, 2016
10. Citv'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 orlevied.
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.
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
March 16, 2016
(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 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. Liabilitv.
(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
8
March 16, 2016
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. 16- dated , 2016.
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.
(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 Citv:
With a Copy to
If to Habitat:
With a copy to
March 16, 2016
City of Oshkosh
Attn: Director of Community Development
215 Church Avenue
Post Office Box 1130
Oshkosh, WI 54903-1130
Oshkosh City Attorney's Office
215 Church Avenue
Post Office Box 1130
Oshkosh, WI, 54903-1130
Habitat for Humanity of Oshkosh, Inc.
Attn: Executive Director
1640 S. Koeller Street
PO Box 2692
Oshkosh, WI 54902-2692
Attorney
0
(d) Entire A�reement. 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 Partv BeneficiarX. 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.
(� 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) Severabilitv 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 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.
(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
10
March 16, 2016
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) Recordin�. 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.
(m) Headin�s. 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 Draftin� 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]
11
March 16, 2016
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
CITY OF OSHKOSH, WISCONSIN
By:
Mark A. Rohloff
Its: City Manager
By:
Pamela R. Ubrig
Its: City Clerk
Approved as to form:
By:
Lynn 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.
Trena Larson, Finance Director
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
Personally came before me this day of , 2016, the above-named Mark A. Rohloff
and Pamela R. Ubrig, to me known to be the City Manager and City Clerk of the City of Oshkosh, Wisconsin
and the person who executed the foregoing document and acknowledged the same.
Notary Public, State of Wisconsin
My commission expires:
[SIGNATURES AND ACKNOWLEDGEMENTS CONTINUED NEXT PAGE]
12
March 16, 2016
STATE OF WISCONSIN
COUNTY OF WINNEBAGO
HABITAT FOR HUMANITY OF OSHKOSH, INC.
I:
I:
)
) SS
)
Eric Highlander, President
Jeff Potts, Executive Director
On this day of , 2016 personally came before me Eric Highlander, to me known to
be the person who executed the foregoing instrument and acknowledged the same.
STATE OF WISCONSIN
COUNTY OF WINNEBAGO
)
) SS
)
Notary Public, State of Wisconsin
My commission expires:
On this day of , 2016 personally came before me Jeff Potts, to me known to be
person who executed the foregoing instrument and acknowledged the same.
Notary Public, State of Wisconsin
My Commission Expires:
13
March 16, 2016
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CERTlFIED SURVEY MAP �vo. �.C��
A RE�DIVISIOM OF LOT 3 OF CERTIFIED SURVEY MAP NUMBER 6103.
BEING A PAFt7 OF TNE NORTHEAS7 % 0� THE NORTHEAST'/. OF SECTION 24, TOWNSHIP i8 NOR7H, RANGE
16 Fl�ST, OF THE FOURTH P.M., 11TH WARD, CIN OF 0.SHKOSH, WINNEBAGO COUNTY, WISCONSIN. fa15 Kepetome
6aen Bay,Ki 54311
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THFN-CURRENT pR0Y1SfONS OF ARTiLIE IV, SEC1104 14-21 (0) OF THE qTY
OF OSNKOSN CHAPTER iS MUNIpPAI CODE fOR STORfA WATER IAAtJAGEA?ENT.
EXISIING EASENENTS HITHIN 7HE DEDICATEO AREA OF LOTS 1 AND 2 V5`LL BE
VACA7ED BY SEPARATE DOCUNENT5.
�' SASON R. HQULE 5-2a71
PROt'ESSIOTUL LANU SURVEYOR
FEBRUMY 77, 2018
�5���'�50��� �xhibit �
IF THE PROFESSW?UL SP/�1 l22D 5lCNANflE M£
BlAq(/pED CONIFASfiMG MK t7�
CERTIFIED SURVEY MAP �,o. �CO�
A RE-OIVISION OF L073 OF CERTIFIED SURVEY MAP NUMBER 6143. �=��
BEING A PART OF 7HE NORTHEAST % OF THE AIOR7HEAST %s OF SECTION 24, TOWNSHIP 18 NOftTH, Rf�NG�
16 EAST, OF THE FOURTH P.M., 11T1i WARD, CITY OF 0.SHKOSH,IMNNE6AG6 COUNN, WISCONSIN, f035 Kep!er�mre
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SURVEYORS C�R7I�ICATE
I, Jason R. Houle, professional land surveyor, hereby certify: That in full compliance with the provisions of Chapler
236, section 236,34 of the Wisconsin Statutes and the l.and Subdivision Ordinance 1ha Cify of Oshkosh, and under
the direciton o( ihe Redevelopment Authority of khe City of Oshkosh, owner of sald land, 1 have surveyed, divided and
mapped ihe following land being lot 3 of Certified Survey iNap numBer 6103. Being a part of the Northeast'/. of the
Northeast'/s of Section 24, To�vnship 18 North, Range 16 East, i ith Watd, 4th P.M., City of Oshkosh, Winnebago
Couniy, Wisconsin, more parllcularly described as follows;
Lot 3 of CertiBed Survey Map Number 6103 as recorded in the office of lhe Winnebago Counry Regtster of deeds as
document #1577796
Said parcel contains 1.238 acres more or less.
Said parcei Is subject to easements, agreements, covenants, or reslrictions recorded and unrecorded.
That the survey of said land was done under my direct supervision and the map hereon is a true and accurate
representalion of fihe exterior boundaries and the divlsian thereof_
d�50H R. HWLE 5-2331
PROFCSS10N+1 U170 SURVEYOR
fE9RW�fiY 17. 2016
itns �s �rt owc�wu. sumEr oocuxexr
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BiAC7C/REO CONPfYSONC INK
CERTIFIED SURVEY MAP Ho.
A RE-DIVISION OF 1073 OF CEF27lFIED SURVEY MAP NUh18ER6103. A�C�M
BEING A PART OF THE NORTHEAST'/. OF 7HE NOftTFtEAS7 `/. OF SECTION 24, TOWrlSNIP 18 NORTH, RANGE
16 EAS7, OF 7HE POURTH P.M., 117H WARD, CITY OF OSHKOSH, WINNE8AG0 COUNIY,IMSCONSIN. 7035 Keaerorire
Green Bay,'Ai 54311
920.{68.1976
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MUNICIPAL OWNER'S CERTIFICATE
The Redevelopmenl Authoriry ot �he City of Oshkosh, a seperate body public organized and exisUng undet and by vGfue ol ihe Laws of the
Stale ot Wiswnsin, as owner, does hereby ceN(y that sa(d Authority caused Ihe land deacnbed to be surveyed, div(ded, dedicated, and
mapped as represented on ihis map, fn accordence w{th the provisions of Chapter236 ot ihe Wisconsin Statutes end Ihe Lend SubdiHs3on
ONinancs of the City of Osluosh.
In WiUess whereof, lhe safd Redevekpment Aulhority, has caused Iheso presenls to be signed hy
its end
countersignad by
thts
day of , 20
Redevalopment Authority oi Ihe Ciry ol Oshkosh
Execuliva Direclor
Chatrman
STATE OF WlSCONSIN)
:SS
WINNE6AG0 COt1NTY)
Personally rame before me this day of , 20_ the aforementioned represmtaGVes of the City of Oshkosh,
knovm lo me to be ihe persons wfw exeaited Ihe (orgoing instrwnent and ackrww(edged Ihe same.
My commission e�'aes
Notary Public,
Wa�nebago Cowty, Slata of Wisconsin
CITY O� OSHKOSH pLANNING COMMISSION
CERT1FlCATE OF APPROVAL
7bis Certltied Survey Map of Lol 3 ot Certified Survey tAap numher fi103, being a pad of lha Nonheasi % ol the NoM1heast %. ot Section 24,
Ta.vnship 18 Nonh, Range 16 Basl, ot lhe 4th P.M., 111h Ward, Cdy of Oshkosh, Winnebago Couoty, Wiscansin, is hereby ¢pproved.
City Planning Commfssion Dale
RepresanlaWe
JASON R. HOUIf S-2N�
rHS �s��wawa. su�ver oocuv� x h� b i t,.��
fiBAVMY 17. 2016
1F 1NE PROFESSION/L SEN. NIU SWi1ATUR FRf IN � �
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