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HomeMy WebLinkAbout2009-110 Housing - XDS, Inc. - Rehab Program Agreement~- o ~ ~b NORTH CAROLINA REHAB PROGRAM AGREEMENT ORANGE COUNTY This is an AGREEMENT between Orange County, a general local governmental unit of the State of North Carolina, (hereinafter referred to as the "County") and XDS, Inc., a North Carolina non-profit c i oration hereinafter referred to as "Owner"). The effective date of this Agreement is ~0 WITNESSTH WHEREAS, the Orange County Board of Commissioners also awarded the Owner $27,940 in Community Development Program Income to assist with the rehabilitation of the rental property and to establish a maintenance and operating reserve for the property; and WHEREAS, the Owner intends to repair the dwelling unit (herein after referred to as "the Project dwelling unit" or "the Project") that are located on properties more particularly described in EXHIBIT A attached hereto and made a part of this Agreement (hereinafter referred to as "the Property"); and WHEREAS, the Owner intends to make the Project dwelling units available for lease to families earning up to 50% of HUD area median income d hereafter referred to as ``The Project" in accordance with the April 30, 2009 letter requesting transfer of the property from the Chrysalis Foundation for Mental Health. A copy of the April 30, 2009 letter is on file in the office of the Housing and Community Development Department; and WHEREAS, notwithstanding any provision of this Agreement, the County and the Owner hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or site approval, and that such commitment of funds or approval may occur only upon satisfactory completion of an environmental review and receipt by Orange County of a Release of Funds from the U.S. Department of Housing and Urban Development under 24 CFR Part §58 if applicable. The parties further agree that the provision of such funds to the project is conditioned on Orange County's determination to proceed with, modify, or cancel the project based on the results of a subsequent environmental review. NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations contained herein, it is agreed between the parties hereto as follows: I. USE OF COUNTY FUNDS I. The Owner shall perform the projects or tasks within the proposed budget outlined in Exhibit B. Exhibit B is hereby made a part of this Agreement and is incorporated by reference, as it now reads or as it may be modified by the parties. 2. The Owner may not request disbursement of funds under this Agreement until the funds are needed for payment of eligible costs. The amount of each request must be limited to eligible costs as determined by the County's Housing and Community Development Department ("OCHCD"). No funds may be shifted between line-items without the prior approval of the County. The value of rehabilitation work done pursuant to the PROJECT for each RESIDENCE shall be considered as a grant to the OWNER with the following condition: OWNER must maintain said property and its grounds and equipment according to applicable Housing Quality Standards (HQS) and all local and State codes and ordinances and must carry appropriate fire and hazard insurance thereon. The OWNER shall provide and file a certificate of said coverage with the COUNTY, the proceeds of which, in the event said structure shall be destroyed or damaged by fire or other casualty, shall be used for reconstruction of said structure upon the said real estate. II. AMOUNT OF COUNTY FUNDS/FORM OF SUBSIDY The County shall make available to the Owner up to Twenty-seven Thousand Nine Hundred and Forty Dollars ($27,940) pursuant to this Agreement. Said funds shall be disbursed by the County to the Owner for performance of the services as provided in Exhibit B. County funds will be provided as a grant to each subject property. III. TIMELINESS The Owner shall complete the Project within six (6) months from the date of this Agreement. However, in the event of any alterations or additions or of circumstances beyond the control of the Owner, which in the opinion of the Director of the County's Department of Housing and Community Development will require additional time for completion of the Project, then in that case, the time of completion shall be extended by the County Manager in writing for a period of time not to exceed six (6) months. Any further extensions will require the approval of the Orange County Board of County Commissioners. IV. DURATION OF THE AGREEMENT This Agreement will remain in effect for the Period of Affordability established below. V. AFFORDABILITY REQUIREMENTS Owner agrees to lease the Project dwelling units to families whose income does not exceed 50% of the area median income by family size, as determined by the U.S. Department of Housing and Urban Development and as amended from time to time. Monthly rents must not exceed the HOME Program Rents in effect at the time of occupancy. Residential leases will not exceed one year in term. Each of the Project dwelling units must remain affordable for a period of ninety-nine years. The Owner retains full responsibility for compliance with the affordability requirement for each of the Project dwelling units, unless affordability restrictions are terminated due to the sale of the Property to anon-qualified buyer in which event the Resale Provisions of Section 3 of this Agreement pertain. The Owner shall assure compliance with affordability of each of the Project dwelling units as provided in the Declaration on the Property. This Declaration shall constitute and remain a first lien on the Property during the period of affordability. It is further the responsibility of the Owner to rerecord the Declaration of Restrictive Covenants periodically and no less often than one day less than every 30 years from the date hereof for the purpose of renewing the rights of first refusal in the Property or portion thereof including any leasehold interest in the Property or portion thereof. Orange County retains the right to, .periodically and every 30 years after the first recording of the Declaration of Restrictive Covenants on the Property to register, with the Register of Deeds of Orange County, a notice of preservation of the Restrictive Covenants on the Property as provided in North Carolina General Statute § 47B-4 or any comparable preservation law in effect at the time of the recording of the notice of preservation. It is the intent of this Agreement that the 99 year duration of this Declaration of Restrictive Covenants be accomplished and that any future owner of the Property, Owner, and Orange County will do what is necessary to ensure that the same is not extinguished by N.C. Gen. Stat. § 41-29 or any comparable law purporting to extinguish, by the passage of time, preemptive rights in the Property and by the Real Property Marketable Title Act or any comparable law purporting to extinguish, by the passage of time, non possessory interests in real property. Any future owner, Owner and Orange County agree to do what each must do to accomplish the 99-year duration of this Declaration of Restrictive Covenants. Resale Provisions The Owner shall assure compliance with affordability of each of the Project dwelling units through the Declaration of Restrictive Covenants. The Declaration of Restrictive Covenants shall include at least the following elements in their resale provisions for the Improvements: If Owner no longer uses the Property as rental property or is unable to continue ownership, then the Owner must sell, transfer, or otherwise dispose of its interest in the Property only to an agency with similar interest in affordable housing and serve families with incomes not exceeding 50% of the area median household income by family size, as determined by the U.S. Department of Housing and Urban Development at the time of the transfer. The non-profit fund, foundation, or corporation of like purposes must have established its tax-exempt status under Section 501 (c) (3) of the Internal Revenue Code. However, if the Property is sold, transferred, or otherwise disposed of to other than an agency with similar interest in affordable housing during the term of affordability, the Right of First Refusal provision of the County's Long-Term Housing Affordability Policy must be followed and the net sales proceeds (sales price less: (1) selling cost, (2) the unpaid principal amount of the original first mortgage and (3) the unpaid principal amount of the initial County contribution and any other initial government contribution secured by a deferred payment promissory note and deed of trust) or "equity" will be divided 50/50 by the seller of the Property and the County. The resale provision shall remain in effect for the full affordability period - 99 years. VI. OWNER PERFORMANCE UNDER THIS AGREEMENT Owner agrees and authorizes the County and HUD to conduct on-site reviews, examine client and contractor records, client applications and to conduct any other procedures or practices to assure compliance with these provisions. Owner agrees to not violate any State or Federal laws, rules or regulations regarding a direct or indirect illegal interest on the part of any employee or elected official of the Owner in the Project or payments made pursuant to this Agreement. Owner agrees that to the best of its knowledge, neither the Project nor the funds provided therefore, and the personnel employed in the administration of the program shall be in any way or to any extent engaged in the conduct of political activities in contravention of Chapter 15 of Title 5, United States Code, referred to as the Hatch Act. Owner shall adopt the audit requirements of the Office of Management and Budget (hereinafter "OMB") Circular A-110, "Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Nonprofit Organizations," and Circular A-122, "Cost Principles for Nonprofit Organizations," and OMB Circular A-133, "Audits of Institutions of Higher Education and Other Non-Profit Institutions." Owner shall submit to the County copy of said audit report. Owner shall permit the authorized representatives of the County, HUD and the Comptroller General of the United States to inspect and audit all data and reports of the Owner relating to its performance under the Agreement. County shall provide, upon request, copies of all laws, regulations and orders cited in this Agreement. Owner and County shall at all times observe and comply with Title 24 CFR Part 92 and all applicable laws, ordinances or regulations of the Federal, State, County, and local government, which may in any manner affect the performance of this Agreement, and Owner shall perform all acts with responsibility to the County in the same manner as the County is required to perform all acts with responsibility to the Federal government. Owner hereby assures and certifies that it will comply with the regulations, policies, guidelines and requirements with. respect to the acceptance and use of a previously HOME Project in accordance with the Act and the policies of the County as applicable to the HOME Program. Also, Owner certifies with respect to the Project that: 1. The Project will be conducted and administered in compliance with: Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352, 42 U.S.C. Sec 2000d et seq.) and implementing regulations issued at 24 CFR Part I; Title VIII of the Civil Rights Act of 1968 (Pub. L. 90-208, 42 U.S.C. Sec 2000d at seq.), as amended; and that the Owner will administer all programs and activities related to housing and community development in a manner to affirmatively further fair housing; Section 109 of the Housing and Community Development Act of 1974, as amended; and the regulations issued pursuant hereto; Section 3 of the Housing and Urban Development Act of 1968, as amended; Executive Order 11246-Equal Opportunity, as amended by Executive Orders 11375 and 12086, and implementing regulations issued at 41 CFR Chapter 60; Executive Order 11063-Equal Opportunity in Housing, as amended by Executive Order 12259, and implementing regulations at 24 CFR Part 107; Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended, and implementing regulations when published in effect; The Age Discrimination Act of 1975 (Pub. L. 94135), as amended, and implementing regulations when published for effect; The Fair Housing Act (42 U.S.C. 3601-20); 2. The Owner's notification, inspection, testing and abatement procedures concerning lead- based paint will comply with Title 24 CFR 92.355 and 24 CFR Part 35. Verification of lead work shall be on file for each participant. VII. ADMINISTRATION AND REPORTING REQUIREMENTS A. Owner shall administer the County funds in conformance with the regulations, policies, guidelines and requirements of Title 24 CFR 92, Part 85 and OMB Circular number A-110, A- 122, and A-133, as they relate to the acceptance and use of Federal funds for the Project. Owner shall submit all required information to the County demonstrating its compliance with applicable laws, rules and regulations, as specified in this Agreement; further, Owner shall submit to the County a quarterly Progress Report no later than the fifth day of the months of January, April; July; October until the activity has been reported completed. Miscellaneous Provisions a. Uniform Administrative Requirements. The Owner must comply with the applicable uniform administrative requirements of 24 CFR §92.505. b. Other Program Requirements. The Owner must carry out each activity in compliance with all Federal laws and regulations described in 24 CFR, Part 92, subpart H except that the subrecipient does not assume the responsibilities for environmental review or intergovernmental review. c. Affirmative Marketing. If County funds will be used for housing containing five (5) or more assisted units, The Owner must prepare and submit an Affirmative Marketing Plan to the County. d. Termination of Agreement. The full benefit of the Project will be realized only after the completion of the affordability periods for all Project dwelling units. It is the County's intention that the full public benefit of the Project shall be completed under the auspices of the Owner for the assisted units as follows: In the event that the Owner is unable to proceed with any aspect of the Project in a timely manner, and County and the Owner determine that reasonable extension(s) for completion will not remedy the situation, then The Owner will retain responsibility for requirements for any dwelling units assisted and County will make no further payments to the Owner. In the event that the Owner, prior to the contract completion date, is unable to continue to function due to, but, not limited to, dissolution or insolvency of the organization, its filing a petition for bankruptcy or similar proceedings, or is adjudged bankrupt or fails to comply or perform with provisions of this agreement, then the Owner shall, upon the County's request, convey to the County the Property assisted with COUNTY funds. Conveyance shall be at the sole discretion of County and on a Project dwelling unit by Project dwelling unit basis. Conveyance shall be on the terms set forth herein: Conveyance shall occur within thirty (30) days of County and The Owner' agreement of the Owner' inability to continue as a viable organization. The Owner shall convey the Property to the County by general warranty deed, free and clear of all liens and encumbrances of record except those which create a beneficial interest in County (Declaration of Restrictive Covenants and Deed of Trust). e. Default, Remedies. This Agreement may be terminated by anon-defaulting party upon an event of default hereunder, after written notice thereof and thirty (30) days grace period in which the defaulting party may act to cure. As used herein, the term "an event of default" shall mean and refer to a failure or act of omission by either party with respect to any undertaking, obligation, covenant or condition as set forth in this Agreement. With respect to any event of default, the non-defaulting party may exercise any right available to it at law or in equity with respect to such default. f. Books and Records. The Owner shall maintain records of its grant requirements under this contract for a period of not less than five (5) full fiscal years following the contract completion date. i. The Owner shall ensure access to records and financial statements, as necessary, to provide effective monitoring and evaluation of project performance. Additionally, The Owner shall submit a copy of its annual audit to the County. ii. Upon reasonable advance notice, County or its authorized representatives may from time to time inspect, audit, and make copies of any of The Owner records that relate to this contract. If any audit by County discloses that payments to The Owner were in excess of the amount to which The Owner was entitled under this contract, The Owner shall promptly pay to County the amount of such excess. If the excess is greater than 1% of the contract amount, The Owner shall also reimburse County its reasonable costs incurred in performing the audit. iii. The Owner shall maintain files of all tenants, regardless of length of occupancy, residing in assisted units. Documentation shall verify eligibility for federal assisted housing at the point of initial tenancy and every subsequent year thereafter for the period of affordability. Information maintained shall include: tenant income level; name of family members; ethnic data; family type - e.g. female head of household; disability status; and monthly rent. iv. The Owner shall maintain records verifying the affordability of the dwelling units. g. Notices. Any Notice shall be in writing and shall be given by depositing the same in the United States mail, post-paid and registered or certified, and addressed to the party to be notified, with return-receipt requested, or by delivering the same in person to an officer or principal of such party. Notice deposited in the mail in the manner here in above described shall be effective upon mailing. For purposes of Notice, the addresses of the parties shall, unless changed as hereinafter provided, be as follows: To the County: Orange County c/o Housing and Community Development Department P.O. BOX 8181 Hillsborough, NC 27278 ATTN: Director ii. To The Owner: XDS, Inc. c/o Executive Director 800 Eastowne Drive, Suite 200 Chapel Hill, NC 27514 Either the County or The Owner may change the person or address to which any future Notice shall be given as herein provided. h. No Assignment. No transfer or assignment of the interest of The Owner in this Agreement shall occur without the prior written consent of the County; neither may The Owner assign this Agreement without the prior written consent of County. i. Conflict of Interest. The Owner agrees to abide by the provisions of 24 CFR 570.611 with respect to conflicts of interest, and covenants that it presently has no financial interest and shall acquire any financial interest, direct or indirect, that would conflict in any manner or degree with the performance of services required under this Agreement. The Owner further covenants that in performance of this Agreement no person having such a financial interest shall be employed or retained by The Owner hereunder. These conflicts of interest provisions apply to any person who is an employee, agent, consultant, or elected official or appointed official of the County, or any designated public agencies or subrecipients that are receiving funds under this Agreement. j. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. k. Indemnification. To the extent legally possible, The Owner shall indemnify and hold County, its officers, agents, and employees, harmless from and against any and all claims, actions, liabilities, costs, including attorney fees and other costs of defense, arising out of or in any way related to any act or failure to act by The Owner, its employees, agents, officers, and contractors in connection with this contract. In the event any such action or claim is brought against County, The Owner shall, upon County's tender, defend the same at The Owner' sole cost and expense, promptly satisfy any judgment adverse to County or to County and The Owner jointly, and reimburse County for any loss, cost, damage, or expense, including attorney fees suffered or incurred by County. 1. Subcontracting. The Owner shall not subcontract work under this Agreement, in whole or in part, without the County's prior written approval. The Owner shall require any approved subcontractor to agree, as to the portion subcontracted, to comply with all applicable federal, state, and local laws, rules, ordinances, and regulations at all times and in the performance of the work and to comply with all applicable obligations of The Owner specified in this contract. Notwithstanding County's approval of a subcontractor, The Owner shall remain obligated for full performance of this contract and County shall incur no obligation to any subcontractor The Owner shall indemnify, defend, and hold County harmless from all claims of its contractors. m. No Joint Venture or Agency. The County and The Owner each agree and acknowledge that nothing contained herein or otherwise, including, without limitation, any act of the County or The Owner under this Agreement, shall be deemed or construed to create any relationship of joint venture, partnership or agency between the parties. n. Effect of Waiver or Forbearance. No failure by the County to insist upon the strict performance of any term or condition of this Agreement, or to exercise any right or remedy upon the breach by The Owner of any of its obligations, agreements, or covenants hereunder, shall be a waiver of such affected term or condition or of such breach; nor shall any forbearance by the County to seek a remedy for any breach by The Owner be a waiver by the County of its rights and remedies with respect to that or any other breach. o. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of North Carolina. Any litigation arising out of this Agreement shall be brought in courts sitting in North Carolina, with venue in Orange County. p. Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by the fact that for any reason any other provision may be invalid or unenforceable in whole or in part. If any provision of this Agreement or the application thereof to any person or circumstances shall, to any extent, be or become invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. The County and The Owner agree to substitute for such provision of this Agreement or the application thereof determined to be invalid or unenforceable, such other provision as most closely approximates, in a lawful manner, such invalid, illegal or unenforceable provision. If the County and The Owner cannot agree, they shall apply to a court of competent jurisdiction to substitute such provision as the court deems reasonable and judicially valid, legal and enforceable. Such provision determined by the court shall automatically be deemed part of this Agreement ab initio. q. Equal Opportunity. The Owner shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, political affiliation or belief, age, handicap, or familial status in the implementation of the Project. r. Headings. Headings are for convenience only and shall not be used to interpret or construe its provision. s. Gender; Singular and Plural. As used herein, the neuter gender includes the feminine and masculine. The masculine includes the feminine and neuter, and the feminine includes the masculine and neuter and each includes a corporation, partnership or other legal entity when the context so requires. The singular number includes the plural and vice versa, whenever the context so requires. t. Recording. The parties hereto agree that upon notice to the other and at its own cost and expense, a party may record this Agreement in the Office of Register of Deeds for Orange County. u. Compliance with Laws. To the extent applicable, each party hereto agrees to comply with all laws, ordinances and regulations affecting the Property from and after the date hereof. Without limiting the generality of the foregoing, The Owner shall comply with all federal, state and local laws, regulations and ordinances applicable to the expenditure of funds provided by the County, to purchase and develop the Property. v. Publicity; Signage. The Owner agrees to provide such publicity with respect to the County's participation in the development of the Property as the County shall reasonably require. Any signage at the Property shall acknowledge the County's role and contribution. w. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute on and the same instrument. x. No Third Party Rights. The parties hereto covenant and agree that nothing contained in this Agreement or any act by the County or The Owner shall be deemed or construed by the parties or any third party to create any relationship of third party beneficiary, including third party principal or agent, or to create any right, claim or cause of action against the County, The Owner or any of their respective officers, agents or employees by any third party. y. Performance of Government Functions. Notwithstanding anything in this Agreement which may be to the contrary, nothing contained in this Agreement shall in any way stop, limit or impair the County from exercising or performing any regulatory, policing or governmental powers or functions with respect to the Property including, without limitation, inspection of the Property in the performance of such functions. z. Duration of Agreement. This Agreement shall be effective on the date of execution and shall remain in effect during the period of affordability required by the Act under 24 CFR Part 92. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have set their hands and seals on the day and year first above written. ORANGE COUNTY, NORTH CAROLINA F tia°° •~ ATTEST: 5a u ~ Donna Baker Clerk to the Board of Commissioners ~@ ~~ wort ~ ~~~o A oved to form and legality A ette Moore, Staff Attorney This document has been preaudited in accordance with the N.C. Local Government and Fiscal Control °'ct. ll ~'1~i,~.u/ ~~ ~ ,Clarence Grier, Finance Director XDS, C. D ~ a V "' Pr~sid~'~'t ~C~ du~j~ . ATTEST: Igo ~.~,t,~,~j~-(,( s~' EXHIBIT B Scope of Services Funds awarded under this Agreement will be provided to XDS, Inc for the renovation costs of 1100 Roosevelt Drive, Units 1, 2 & 3 in Chapel Hill, NC. The Owner shall ensure that the Project dwelling unit meet the property standards in 24 CFR 92.251 and the lead-based paint requirements in 92.355 at the time of project completion in addition to applicable building and zoning ordinances. The costs of lead paint assessments and clearance test shall be included in the rehabilitation costs. A Section 8 Housing Quality Standards (HQS) inspection must be conducted prior to leasing to ensure compliance and at least once every three years throughout the life of the project. Copies of inspection reports must be maintained in project files. Additionally, the COUNTY shall provide the following items on the following schedule. 1. Transaction Costs Invoice after Contract Execution 2. Replacement Reserve Invoice after Rehab Completion . (Funds are to be held in a restricted account with annual accounting provided to the County for the full affordability period.) 3. Operating Reserve Invoice after Rehab Completion Project Budget Rehab Costs 1100 Roosevelt Drive Units 1, 2 & 3 $20,755 Contingency $1,355 Tota I $22,110 Miscellaneous Tasks Transaction Costs $625 Replacement Reserve $2,602 Operating Reserve $2,603 Tota I $27, 940 Source of Funds Orange County Program Income $27,940