HomeMy WebLinkAbout2005 S Housing - Orange Co 2005-2006 Home Program - Design Habitat For Humanity of Orange Co$100,000C/~ G
NORTH CAROLINA
ORANGE COUNTY
DEVELOPMENT AGREEMENT
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 HABITAT
FOR HUMANITY OF ORANGE COUNTY, NC, INC., a North Carolina non-profit housing
organization (hereinafter referred to as "Habitat"). The effective date of this agreement is
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WITNESSTH
WHEREAS, .the Orange County HOME Consortium has designated approximately
$100,000 in FY 2005 HOME funds and $250,000 in FY 2006 HOME funds for the purpose of
predevelopment and infrastructure costs in the development of a proposed Purefoy Drive
subdivision in Orange County and;
WHEREAS, the County is the lead entity of the Orange HOME Consortium, so designated
in an agreement dated July 1, 2005, and as such is the lead entity in a representative capacity for all
members of the Orange HOME Consortium for the purposes of carrying out the HOME Program in
accordance with the Title II of the Cranston-Gonzalez National Affordable Housing Act (Pub. L.
101-625), (42 U.S.C. 3535(d.) et. seg.) (hereinafter referred to as the "Act"), and as further defined
in the Federal Program Requirements provided by the U.S. Department of Housing and Urban
Development; and
WHEREAS, Habitat intends to construct a 20 unit subdivision with dwelling units for
first-time homebuyers earning up to 60% of HUD area median income as described in their FY
2005 HOME Program Proposal dated February 28, 2005 and their FY 2006 HOME Program
Proposal dated February 28, 2006 which is hereby incorporated into this Agreement, and
hereafter referred to as "The Project". A copy of the 2005 and 2006 HOME Program Proposals
are on file in the office of the Housing and Community Development Department; and
WHEREAS, Habitat intends to assist twenty (20) first-time homebuyers earning up to
60% of HUD area median income purchase newly constructed housing in the Purefoy Drive
subdivision; and
WHEREAS, afirst-time homebuyer for the purposes of this program is defined as any
low income household that has not owned a home within the past three (3) years including
households living in manufactured housing not permanently affixed to a foundation, or owner-
occupants of homes not feasible for rehabilitation and has lived or worked in Orange County for
at least one year prior to the home purchase;
WHEREAS, notwithstanding any provision of this Agreement, the County and Habitat
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:
1. a. Habitat shall construct the necessary infrastructure and build at least twenty (20)
dwelling units as defined in the Project, obtain all permits and licenses necessary for
construction, and comply with applicable building and zoning ordinances and the N.C.
Housing Finance Agency Energy Standards. The Project shall be undertaken without
residential displacement.
b. Habitat shall sell the newly constructed dwelling units to qualified buyers whose
income up to 60% 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 sale.
c. The funding provided by the County will be provided as a deferred second
mortgage transferable to the individual families at the time of sale to them. The
investment will be secured by a forty (40) year Deed of Trust and Promissory Note,
forgivable at the end of 40 years. This Deed of Trust and Promissory Note shall
constitute a lien on the Property, second only to the Declaration of Restrictive Covenants
described in paragraph 4 of this Agreement, with the County as the secured
party/beneficiary. The County agrees to subordinate its Deed of Trust lien on the
Property to a lien securing private construction financing acquired by Habitat in order to
complete the project.
d. At the time of closing of the sale of each of the dwelling units to a homebuyer,
Habitat shall repay the County $17,500.00 in the form of a credit to the homebuyer. The
credit to the homebuyer shall be documented by a Promissory Note from the homebuyer
to the County which note shall be secured by a Deed of Trust on the Property naming the
County as beneficiary. The County agrees to subordinate its Deed of Trust lien to a lien
securing private permanent financing acquired by the homebuyer.
e. Tl~e period of affordability will be 99 years and will be secured by a Declaration
of Restrictive Covenants that will incorporate a right of first refusal that maybe exercised
by Habitat and/or Orange County.
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f. Habitat is responsible for soliciting buyers for the dwelling units constructed on
the Property. Habitat and/or its buyers shall be responsible for securing permanent
mortgage financing for the homes built on the Property.
g. Habitat is responsible for verifying the income of the homebuyers, explaining the
second mortgage program to potential homebuyers and certifying by written
documentation signed by the homebuyer that the program requirements have been fully
explained. Habitat shall maintain purchaser files as part of its Books and Records as
required and for the period of time required by Section 6.c. of this Agreement.
2. Progress Payments. The County shall make payments when requested by Habitat in
order to facilitate the development of the project infrastructure. Copies of documentation
for actual expenses shall accompany payment requests.
3. Time for Commencement and Completion. The Project completion date is the closing
date of the purchase by a qualified buyer of the last of the 20 units to be constructed. In
the event that Habitat is unable to proceed with any aspect of the Project in a timely
manner, and County and Habitat determine that reasonable extension(s) for completion
will not remedy the situation, then the Termination of Agreement provisions of this
Agreement (Section 6.a.) shall pertain. Habitat may, at its option, submit a written request
for a delay of completion for County approval. The County may, at its option, approve
any delay in the Project completion date or declare Habitat in default.
Habitat shall monitor the constructed units for affordability for the period of affordability
- ninety-nine (99) years. Final contract completion date shall be the latest end date of all
assisted unit affordability periods.
In addition, Habitat agrees to furnish to the County a copy of its annual audit, performed
by a certified public accountant within 90 days of the end of the fiscal year of expenditure
of the HOME Program Funding.
4. Affordability Requirement. Each unit must remain affordable for a period of ninety-nine
years. Habitat retains full responsibility for compliance with the affordability
requirement for assisted 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 4 of this Agreement pertain. Habitat shall assure compliance with affordability of
each of the twenty (20) dwelling units, "Declarations of Restrictive Covenants" on the
Property recorded at Book 3936, Page 434, Orange County Registry ,and at Book 3936,
Page 465, Orange County Registry. These Declarations constitute and shall remain a first
lien on the Property during the period of affordability.
It is further the responsibility of Habitat to rerecord the Declaration of Restrictive
Covenants no later than one day before the expiration of 30 years of the date of its sale of
each of the 20 dwelling units in the event the homeowner purchasing the property from
Habitat is still the owner of the dwelling unit at the time of the rerecording and no later
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than one day before the expiration of 30 years of the sale of the 20 units. County retains
the right to periodically and every 30 years after the first recording of the Declazation 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 Cazolina 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 Section of
this Agreement that the 99 year affordability requirement contained herein be
accomplished and that Habitat and the County will do what is necessary to ensure that the
same is not extinguished by the Real Property Marketable Title Act or any compazable
law purporting to extinguish, by the passage of time, non possessory interests in real
properly. Both Habitat and County agree to do what each must do to accomplish the 99-
yeaz affordability requirement.
5. Resale Provisions. Habitat shall assure compliance with affordability of assisted 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:
5.1 If the buyer no longer uses the Property as a principal residence or is unable to
continue ownership, then the buyer must sell, transfer, or otherwise dispose of
their interest in the Property only to a qualified homebuyer, i.e., aloes-income
household, one whose combined income does not exceed 80% of the azea median
household income by family size, as determined by the U.S. Department of
Housing and Urban Development at the time of the transfer, to use as their
principal residence.
5.2 However, if the property is sold during the term of affordability to anon-qualified
homebuyer, the Right of First Refusal provision of the New and Existing First-
Time Homebuyer Program portion 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.
5.3 The resale provision shall remain in effect for the full affordability period - 99
yeazs.
6. Miscellaneous Provisions.
a. Uniform Administrative Requirements. Habitat must comply with the applicable
uniform administrative requirements of 24 CFR §92.505.
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b. Other Program Requirements. Habitat 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 HOME funds will be used for housing containing five
(5) or more assisted units, Habitat 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
Habitat for the assisted units as follows:
i. In the event that Habitat is unable to proceed with any aspect of the Project in a timely
manner, and County and Habitat determine that reasonable extension(s) for
completion will not remedy the situation, then Habitat will retain responsibility for
requirements for any dwelling units assisted and County will make no further
payments to Habitat.
ii. In the event that Habitat, 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 Habitat shall, upon
the County's request, convey to the County the Property assisted with HOME 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 Habitat's agreement of
Habitat inability to continue as a viable organization. Habitat 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 maybe 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.
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f. Books and Records. Habitat 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. Habitat shall ensure access to records and financial statements, as necessary, to
provide effective monitoring and evaluation of project performance. Additionally,
Habitat shall submit a copy of its annual audit to the County.
Upon reasonable advance notice, County or its authorized representatives may from time
to time inspect, audit, and make copies of any of Habitat records that relate to this
contract. If any audit by County discloses that payments to Habitat were in excess of the
amount to which Habitat was entitled under this contract, Habitat shall promptly pay to
County the amount of such excess. If the excess is greater than 1 % of the contract
amount, Habitat shall also reimburse County its reasonable costs incurred in performing
the audit.
ii. Habitat 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.
iii. Habitat 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:
i. To the County: Orange County
c/o Housing and Community Development
Department
P.O. Box 8181
Hillsborough, NC 27278
ATTN: Director
ii. To Habitat: Habitat for Humanity
1829 E. Franklin Street #1200B
Chapel Hill, NC 27514
ATTN: Executive Director
Either the County or Habitat may change the person or address to which any future Notice shall
be given as herein provided.
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h. No Assignment. No transfer or assignment of the interest of Habitat in this
Agreement shall occur without the prior written consent of the County; neither may Habitat
assign this Agreement without the prior written consent of County.
i. Conflict of Interest. Habitat 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. Habitat
further covenants that in performance of this Agreement no person having such a financial
interest shall be employed or retained by Habitat 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 the County HOME Investment Partnership Program.
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, Habitat 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 Habitat, its employees, agents, officers, and
contractors in connection with this contract. In the event any such action or claim is brought
against County, Habitat shall, upon County's tender, defend the same at Habitat' sole cost and
expense, promptly satisfy any judgment adverse to County or to County and Habitat jointly, and
reimburse County for any loss, cost, damage, or expense, including attorney fees suffered or
incurred by County.
1. Subcontracting. Habitat shall not subcontract work under this Agreement, in
whole or in part, without the County's prior written approval. Habitat 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 Habitat specified in this contract.
Notwithstanding County's approval of a subcontractor, Habitat shall remain obligated for full
performance of this contract and County shall incur no obligation to any subcontractor Habitat
shall indemnify, defend, and hold County harmless from all claims of its contractors.
m. No Joint Venture or Agency. The County and Habitat each agree and
acknowledge that nothing contained herein or otherwise, including, without limitation, any act of
the County or Habitat 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 Habitat 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
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County to seek a remedy for any breach by Habitat 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 Cazolina. 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 aze 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 Habitat
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 Habitat 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. Habitat 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 aze 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, Habitat 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.
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v. Publicity; Signage. Habitat 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 Habitat 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,
Habitat 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.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have set their hands
and seals on the da and year first above written.
~sb~s«'~
COUNTY OF ORANGE, NORTH CAROLINA
(SEAL) u ~
o~ Laura Blackmon, County Manager
~Ar~b ~~~°°t
ATTEST:
Donna Baker
Clerk to the Board of Commissioners
Appro ed as to form and legality
eoffr le ill, ounty Attorney
This document has been preaudited in accordance with the N.C. Local Government and Fiscal
Contr Ac~
,Kenneth Chavious, Finance Director
Habitat for Humanity of Orange County, NC,
Inc.
(SEAL)
~u ~ Hgi2/in~ ,President
ATTEST: ~~ K
p i- ,Secretary
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EXHIBIT A
PROPERTY DESCRIPTION
Being all of Tract 1, and Tract 2, as shown on the plat entitled "Plat of Partition Property
Surveyed for Julia Bell Jones, Samuel Buck Jones and Carl Lee Purefoy" and recorded in Plat
Book 54, Page 48, Orange County Registry, to which reference is hereby made for a more
particulaz description of same.
PIN: 9870-64-1606
9870-64-3619
TBML: 7.23...1
7.23...1C
Tract I
Beginning at an iron stake at the point of intersection of the east side of Edgar Street and the
north side of Purefoy Drive, and thence running with and along the east side of Edgar street north
04 DEG 04 min, east 122.98 feet to a stake, the southwest corner of Lot No. 2 in Block B of plat
hereinafter mentioned; thence running with and along the southern boundary line of said Lot No.
2, Block B. South 8.5 deg 56 min east 177.22 feet to a stake, the southeast corner of said Lot no.
2, block B; thence running South 04 deg 06 min west 124.24 feet to an iron stake in the north
side of Purefoy drive thence running with and along the north side of Purefoy drive north 86 deg
27 min West 171.15 feet to a stake, the point and place of beginning, and being Lot No. 1, Block
B of subdivision of Lot #3, Purefoy Estate, .property of Roberts Construction Company, Inc.
Chapel Hill Township, Orange. County, North Carolina, as per survey of Creole Engineering
Company dated Apri19, 1973, map of which is duly recorded in the office of the Register Deeds
of Orange County, North Cazolina, to which reference is made for a more complete description.
PIN: 9870-54-9248
TBML: 7. 23B.B.7
Tract II
Beginning at an iron stake at the point of intersection of the what side of Edgaz Street with the
north side of Purefoy Drive, thence running with and along the north side of Purefoy Drive north
86 deg 27 min west 171.15 feet to an iron stake; thence running north 04 deg 04 min east 124.87
feet to an iron stake, southwest corner of Lot No. 2, Block A, map hereinafter referred to; thence
rnnning with and along the west property line of Edgar Street South 04 deg 04 min west 123.35
feet to a stake, the point and place of beginning the same being Lot No. 1, block a subdivision of
Lot No. 3 Purefoy Estate property of Roberts Construction Company, Inc., Chapel Hill
Township, Orange County, North Cazolina, map of which is duly recorded in the office of the
Register of Deeds for Orange County in Plat book 21, at page 89, to which reference is hereby
made for a more particular description of same.
PIN: 9870-54-7219
TBML: 7.23B.A. 7
Being all of Lots 2, 3, 4, 5, 6 and 7 of Block A and Lots 2, 3, 4, 5, 6 and 7 of Block B of
subdivision of Lot #3, Purefoy Estate, Property of Roberts Construction Company, Inc., Chapel
Hill Township, Orange County, North Carolina, as per survey of Creole Engineering Company,
dated Apri19, 1973, map of which is duly recorded in the office of the Register of Deeds of
Orange County, North Carolina, to which reference, is made for a more complete description.
PIN: TMBL
9870-54-7411 (#2 BLOCK A) 7.23B.A.6
9870-54-7514 (#3 BLOCK A) 7.23B.A.5
9870-54-762.7 (#4 BLOCK A) 7.23B.A.4
9870-54-7830 (#5 BLOCK A) 7.23B.A.3
9870-54-7922 (#6 BLOCK A) 7.23B.A.2
9870-55-7013 (#7 BLOCK A) 7.23B:A.1
9870-54-9441 (#2 BLOCK B) 7.23B.B.6
9870-54-9543 (#3 BLOCK B) 7.23B.B.5
9870-54-9679 (#4 BLOCK B) 7.23B.B.4
9870-54-9850 (#5 BLOCK B) 7.23B.B.3
9870-54-9950 (#6 BLOCK B) 7.23B.B.2
9470-55-.9063 (#7 BLOCK B) 7.23B.B.I