HomeMy WebLinkAbout05. 16-404AUGUST 10, 2016 16-404 RESOLUTION
(CARRIED 6-0LOST_______LAID OVER_______WITHDRAWN_______)
PURPOSE: APPROVE DEVELOPER AGREEMENT WITH ADVOCAP FOR
YOUTH BUILD PROJECT AT 654 FREDERICK STREET
INITIATED BY: ADVOCAP
REDEVELOPMENT AUTHORITY RECOMMENDATION: APPROVED
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, the Redevelopment Authority sold the property at 654 Frederick
Street for ONE DOLLAR AND NO/100 ($1.00) to ADVOCAP; and
WHEREAS, ADVOCAP will construct a fully handicap accessible single family
residential structure for income qualified low to moderate income property owners.
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 ADVOCAP for construction of a single family residential
structure at 654 Frederick Street, 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.
ci Y.
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Oshkosh
MEMORANDUM
TO: Honorable Mayor and Members of the Common Council
FROM: Allen Davis, Community Development Director
DATE: July 21, 2016
SUBJECT: Approve Developer Agreement with ADVOCAP for Youth Build Project at 654
Frederick Street
BACKGROUND
In 2012, the City of Oshkosh received a grant from the State of Wisconsin Blight Elimination Program
for the acquisition and demolition of properties within the Middle Village neighborhood, which
included 654 Frederick Street. The owner of 654 Frederick Street agreed to sell the property when
approached by City staff and the RDA and City subsequently spot blighted the property and approved
the acquisition. The property contained a single- family, renter - occupied structure that had fallen into
disrepair. The structure was demolished in 2013 and the property is currently vacant.
ANALYSIS
ADVOCAP, Inc. approached City staff about acquiring the lot for the development of a single- family
handicap accessible owner- occupied home. The proposed development would be the first home built
in Winnebago County under ADVOCAP's Youth Build Program. The RDA authorized the land
disposition and Development Agreement to allow for the proposed development to occur. The key
elements of the Development Agreement include:
1. The City will provide $50,000 in Healthy Neighborhood Initiative funding in the form of a 0%
interest, deferred payment loan. The loan will be repaid to the City when the future qualified
homebuyer sells the property.
2. The RDA and the City will convey the property to the Developer for $1.
3. The Developer will build a single- family handicap accessible home with a detached garage.
Final designs will be approved by the Department of Community Development.
4. The proposed development will be completed by December 31, 2017.
ADVOCAP, Inc. will invest a substantial amount into the development and once construction is
complete the property will be assessed at approximately $125,000. The proposed development will also
further many of the goals and objectives identified within the Middle Village Neighborhood Plan which
was approved by the RDA and City in 2014.
FISCAL IMPACT
The property is currently owned by the RDA and has no value. The post - construction assessed value
is estimated to be $125,000.
RECOMMENDATION
Staff recommends approval of the Development Agreement as proposed.
Respectfully Submitted, Approved,
Allen Davis Mark Rohloff
Community Development Director City Manager
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DEVELOPMENT AGREEMENT
Document Number Document Title
DEVELOPMENT AGREEMENT
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, and the
Redevelopment Authority of the City of Oshkosh, a separate body politic (collectively "City "), and ADVOCAP,
Inc, a Wisconsin Non -Stock Corporation ( ADVOCAP).
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. ADVOCAP's mission is
to create opportunities for people and communities to reduce poverty and increase self- sufficiency. 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. ADVOCAP 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, ADVOCAP along with its other partners will construct a fully
handicap accessible single family residential structure within the City.
C. The City seeks to continue fulfilling its progrms assisting low income residents, potential
homeowners with financial barriers, and neighborhop , ommunities by providing Property on which
ADVOCAP will construct a fully handicap accble igle family residential structure as well as
provide certain financial assistance that will allow W&OCAP's goals to become a reality for the low -
income families selected for ownership.
D. ADVOCAP agrees to acquire fe f*iF title to the Property and thereafter develop the site
pursuant to the terms of this Agreernl,,ntap roved by the Common Council on ,
2016 through Resolution 16- (Pr Je;t)�
E. ADVOCAP'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 ADVOCAP
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 Owner and
ADVOCAP 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 and the
Redevelopment Authority of the City of Oshkosh, a separate body politic, its successors and assigns.
"City Contribution" means payments provided by the City to ADVOCAP 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 31, 2017.
1
"Default" means the occurrence of one or more of the events described in Section 12, below.
"Project" means ADVOCAP's approved plan to acquire Property from the Owner and thereafter
construct one fully handicapped accessible residential structure on the Property as approved by the
Common Council on , 2016 through Resolution 16- , followed by ADVOCAP's
conveyance of the unit to a qualified family. 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.
"Property" means the parcel of land upon which the Project is located. The Property is the South
40 feet of Lot Eight (8) Block `B ", according to the recorded Plat of Reuben Parkinson's Subdivision of
Part of Block Forty -five (45), in the Seventh Ward, in the City of Oshkosh, Winnebago County,
Wisconsin. Commonly known as 654 Frederick St. Oshkosh, Wisconsin 54901.
"Term" means the period of time from the Effective Date of this Agreement to the Expiration Date.
The Expiration date will be ten (10) years from the Completion Date, which is December 31, 2027.
2. CitesObligations.
(a) Conveyance of Property to ADVOCAP. The Owner will convey fee simple title to the
Property to ADVOCAP 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 ordinan ,e nd taxes (if any) for the year in which the
conveyance takes place. ��
(b) Building Construction A
loans in the amount of Fifty Thousand ;
be utilized at ADVOCAP's discretion
accessible single family residentialtu
mortgage liens attached to the Property
dstanc Mij& City will provide ADVOCAP with a no- interest
N9 11"0 dollars ($50,000.00) (collectively, Building Loan) to
Ify costs associated with constructing a fully handicap
me
T. the Property. The Building Loan shall be secured with
nth the specific terms of the loan and mortgage to be set forth in
separate documents. The Building Loa ii shall not accrue interest, and ADVOCAP 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 ADVOCAP to the ADVOCAP- approved new owner of the
single family residential structure when ADVOCAP conveys the Property to the new owner. The Building
Loan shall become due and payable without further notice when the initial ADVOCAP- approved new
owner conveys or transfers some or all of the Property to any other person or entity for any reason.
3. City Mortgages. The City anticipates the existence of at least one (1) mortgage lien that will be
held by the City and placed against the Property. Namely, mortgage associated with loan for Building
Construction Assistance. There will also be other mortgage liens placed against the Property by
ADVOCAP and others. It is the City's expectation that the mortgage, which will secure the Building
Construction note, will constitute the initial liens on the Property and therefore will initially be in first
"place" in terms of liens on the Property. Upon ADVOCAP's conveyance, the City's mortgage to the
qualified buyer 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 ADVOCAP 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
1 S` Mortgage
City — Healthy Neighborhoods Initiative Funding
Fed. Home Loan Bank Homebuyer Assistance
4. Conditions Precedent to City's Obligations. In addition to all other conditions and
requirements set forth in this Agreement, the obligations of the Owner hereunder (including, without
limitation, the obligation of the City to provide loan identified) are conditioned upon the completion of
each and every of the following conditions to the Owner's satisfaction:
(a) On or before the date of this Agreement, ADVOCAP 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 ADVOCAP are authorized to do so, that ADVOCAP is duly authorized entry into
this Agreement, and other matters as are reasonably requested by the City.
(b) On or before the date of this Agreement, ADVOCAP 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.
(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 ADVOCAP.
follows:
(a) ADVOCAP is a non -stock
with all administrative entity formation 1
licenses, permits, and franchises to owns]
P.n
represents and warrants to the City as
rduly organized by the State of Wisconsin, is current
is of the State, and has the power and all necessary
and properties and to carry on its business.
(b) ADVOCAP is duly lic8-sed or qualified to do business in the State of Wisconsin and all
other jurisdictions in which failure to o 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 ADVOCAP, and constitute the valid and binding obligations of
ADVOCAP 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 ADVOCAP's obligations pursuant to this
Agreement will not violate or conflict with ADVOCAP's Articles of Organization or other corporate
operating agreements or bylaws, or any indenture, instrument or agreement by which ADVOCAP is
bound, nor will the execution, delivery or performance of ADVOCAP's obligations pursuant to this
Agreement violate or conflict with any law applicable to ADVOCAP or to the Project.
(e) There is no litigation or proceeding pending or affecting ADVOCAP, or, to the best of
ADVOCAP's knowledge, threatening ADVOCAP or the Project, that would adversely affect the Project
or ADVOCAP, or the enforceability of this Agreement, the ability of ADVOCAP to complete the Project
or the ability of ADVOCAP to perform its obligations under this Agreement.
(f) To the best of ADVOCAP'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 ADVOCAP is not in
default (beyond any applicable notice and cure period) of any of its obligations under any other agreement
or instrument to which ADVOCAP is a party or an obligor.
6. ADVOCAP Covenants. During the Term of this Agreement, ADVOCAP, 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) ADVOCAP 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 th�ny be required by any governmental authority or
nongovernmental entity in connection with the de o . en, construction, management and operation of lt
the Project shall be obtained and be in effect at, t11
(g) ADVOCAP will not, wit_ ou� h City's consent, initiate any change in the zoning
classification of all or any portion of the " °erfY
(h) All terms and require ke ts, f the City's loans shall be complied with.
8. Site / Environmental Issues. The City has been in possession of the Property for a relatively short
period of time, and after taking possession razed the structures on the Property. As part of the demolition
process, the structure basement and foundation was intended to be removed. However, the City has not
verified that the removal actually occurred. Furthermore, the City has not undertaken, or had reason to
undertake, environmental testing of the site. In short, the City is unaware of any conditions on the Property
that would result in the applicability of environmental rules, regulations, and laws, or for additional
expense in preparing the site for construction. The City has shared with ADVOCAP its findings regarding
the property, and ADVOCAP affirmatively states that it is comfortable with its knowledge of the Property
condition and accepts it in its condition, or "as -is," upon conveyance.
9. Damage; Destruction.
(a) In the event of fire, damage, or any other casualty to any part of the Project, ADVOCAP
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 approved by the City for
ADVOCAP's use. ADVOCAP 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 ADVOCAP.
10. City's Right to Cure Default. In case of a failure by ADVOCAP 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 ADVOCAP to the City.
11. Real Estate Taxes and Assessments. Unless otherwise exempt, ADVOCAP 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, ADVOCAP
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 ownersh of a taxable entity, and that this Agreement
prohibits the future inclusion of deed restrictions haNvuld exclude or inhibit potential uses for any
development on the Property that is othe rwis dt colinphant with the Zoning Ordinance; that after
ADVOCAP conveys the property, it shall not be coteyed to or owned by any tax - exempt entity for the
Term of this Agreement; and that no addi Ana deed restriction shall be placed on the Property which
would constrain or limit the use of the P p e-,tyli any way. The City may, at its discretion, also insert
these restrictions within the deed and a s 6Vocuments at the time of conveyance to ADVOCAP.
13. Nondiscrimination. ADVOC all 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 ADVOCAP 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) ADVOCAP, or any successor, fails to pay when due any amount due from it under this
Agreement; or
(b) Any representation or warranty made by ADVOCAP, or any successor, in this Agreement
or any document delivered by ADVOCAP, 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) ADVOCAP, 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 ADVOCAP (or such longer period of time as is
necessary to cure the default as long as ADVOCAP 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) ADVOCAP: (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 ADVOCAP 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 ADVOCAP, the Property, and /or the Project.
(b) ADVOCAP has represented to the Qf that they maintain a separate agreement which
describes their respective obligations to perform th,,' Masks described in this Development Agreement and
to thereafter receive the benefits for performing, thiese tasks. The City remains only interested in the
appropriate and lawful use of public funds, the�levelopment of the Property, and the timely completion
s _7
of the Project. Therefore, the Parties a ee thdt ADVOCAP 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. " he�ty 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 a loan and other support for
the Project, it remains an ADVOCAP project and ADVOCAP is responsible for the Property and activities
related to the Property and Project after the City conveys it to ADVOCAP. Therefore, ADVOCAP
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 ADVOCAP, its partners, agents,
6
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. 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 ADVOCAP 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 ADVOCAP, and then only to the extent specifically
set forth in writing.
(c) Notices. All communications or noticesartquired or permitted by this Agreement shall be
N
in writing and shall be deemed to have been given (i.p delivery to an officer or the person entitled to
such notice, if hand delivered, or (ii) two busine days following deposit in the United States Mail,
postage prepaid, or with a nationally recognized - o� ight commercial carrier that will certify as to the
date and time of delivery, air bill prepaid, upon transmission if by facsimile, any such
communication or notice shall be add res zd oows, unless and until any such party notifies the other
in accordance with this section of any chin e 0 ddress:
If to the City: City bf 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 ADVOCAP: ADVOCAP, Inc.
Attn: Executive Director
2929 Harrison St.
Oshkosh, WI 54901
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
ADVOCAP 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
ADVOCAP 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.
(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
unenforceable in any jurisdiction shall, as to such
or enforceability without invalidating the remaini
affecting the validity or enforcement of any pro(
on of this Agreement which is prohibited or
h, be in effect to the extent of such prohibition
nsions of this Agreement in such jurisdiction or
any other jurisdiction.
(i) No Partnership or Joint V , nffi-reA Nothing contained in this Agreement or any other
documents executed pursuant to this Agree shall be deemed or construed as creating a partnership or
joint venture between the City and A VOAP, or between the City and any other person or entity related
to the Project, or cause the City to be�pnsible in any way for the debts or obligations of ADVOCAP,
or of any other person or entity related to the Project, or cause ADVOCAP to be responsible in any way
for the debts or obligations of the City. The City and ADVOCAP 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.
0) 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.
(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, ADVOCAP 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. ADVOCAP's
compliance with the terms of this Agreement shall not relieve ADVOCAP 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 ADVOCAP, or the Project, compliance by ADVOCAP with the terms of this Agreement
shall not relieve ADVOCAP from complying with such different or more restrictive conditions.
Likewise, any less restrictive conditions imposed on ADVOCAP, or the Project by any governmental or
non - governmental authority shall not relieve ADVOCAP, or the Project from complying with all of the
terms and conditions of this Agreement.
[SIGNATURE PA v-FO OW]
����
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;Fnance Director
STATE OF WISCONSIN )
SS
COUNTY OF WINNEBAGO )
2 1 above-named Mark A. Rohloff
Personally came before me this day of 0 6, the abo v
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]
10
ADVOCAP, INC.
Mike Bonertz, Executive Director
WE
Tony Beregszazi, Deputy Director
STATE OF WISCONSIN )
) SS
COUNTY OF WINNEBAGO )
On this day of , 2016 personally came before me Mike Bonertz and Tony
Beregszazi, to me known to be the persons who executed the foregoing instrument and acknowledged the same.
Notary Public, State of Wisconsin
My co 1#i§ ion expires:
11