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HomeMy WebLinkAbout2000 NS Housing - Empowerment Inc Development Agreement Housing & Empowerment for$90,000 DRAFT 2 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 EmPOWERment, Incorporated, a North Carolina non-profit housing organization (hereinafter referred to as"EmPOWERment"). The effective date of this agreement is WITNESSTH WHEREAS, the County, in the implementation of the Orange County Affordable Housing Bond Program solicited applications for funding from interested non-profit organizations; WHEREAS, EmPOWERment submitted an application for Housing Bond funding on July 8, 1999 for $90,000 for Property acquisition for future housing development approved by the Board of County Commissioners on December 7, 1999; and WHEREAS, EmPOWERment intends to purchase a tract of land on Pine Hill Drive in Carrboro (herein after referred to as the "Property"), and described in EXHIBIT A attached hereto and incorporated herein; and WHEREAS, EmPOWERment intends to replace four condemned properties with four, 1188 square four units available to first-time homebuyers earning between 52% - 58% of HUD area median income. WHEREAS, EmPOWERment agrees to utilize bond funds provided by the County for the purpose of acquiring Property for the purpose of constructing four dwelling units for first- time homebuyer families as described in their bond application dated July 8, 1999 which is EXHIBIT B to this Agreement, and hereinafter referred to"the Project". NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations contained herein, it is agreed between the parties hereto as follows: 1. EmPOWERment shall construct the dwelling units defined in the Project , obtain all permits and licenses necessary to construct the homes on the Property, 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. EmPOWERment is responsible for soliciting buyers for the homes they intend to construct on the Property. EmPOWERment and/or their buyers shall be responsible for securing permanent mortgage financing for the homes built by them on the Property. 2 DRAFT 3 EmPOWERment shall be responsible for explaining the second mortgage program to potential homebuyers and certify by written documentation signed by the homebuyer that the program requirements have been fully explained. EmPOWERment shall maintain purchaser files for a period of 99 years following completion of the development of the Property. 2. Progress Payments. The County shall make progress payments, when requested by EmPOWERment, as the work progresses. Payments shall be based upon work completed and approved by County. Progress payment requests shall be based on actual costs incurred by EmPOWERment identified in the Budget as described in attached Exhibit B. Payment requests shall be accompanied by copies of documentation for actual expenses. Request amounts shall be verified by County for satisfactory completion prior to payment. The bond funding provided by the County will be provided as a deferred second mortgage transferable to the individual families at the time of sale. The bond investment will be secured by a forty (40) year Deed of Trust and Promissory Note, forgivable at the end of 40 years. The period of affordability will be 99 years and will be secured by a deed covenant that will incorporate a right of first refusal that may be exercised by EmPOWERment and/or Orange County. If the Property is sold during the term of affordability, all equity realized from the sale will be divided 50150 by the seller of the Property and the County. 3. Time for Commencement and Completion. EmPOWERment, Incorporated must submit a sound, site-specific development proposal for developing the Property within eighteen (18) months of initial award. Actual construction must begin within three (3) years of the original application date. EmPOWERment will responsible for providing status reports to the County quarterly detailing the project activities until project completion. In addition, EmPOWERment 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 each fiscal year until the Project is complete. Completion date shall be designated as the closing date of the purchase of the final Pine Hill Drive property. In the event that EmPOWERment is unable to proceed with any aspect of the project in a timely manner, and County and EmPOWERment determine that reasonable extension(s) for completion will not remedy the situation, then the conditions of termination shall be in effect. EmPOWERment may, at its option, submit a written request for a delay of completion for County approval. Any delay in the completion date shall be approved by County. EmPOWERment 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. 4. Affordability Requirement. The units must remain affordable for period of ninety-nine years. EmPOWERment retains full responsibility for compliance with the affordability 3 DRAFT 4 benefit for assisted units, unless affordability restrictions are terminated due to the occurrence of any of the following events: 1) foreclosure, 2) transfer in lieu of foreclosure, or 3) assignment of an FHA insured mortgage to HUD. EmPOWERment shall assure compliance with affordability of assisted units by recording Exhibit C "Declaration of Restrictive Covenants" on every assisted property. 5. Resale Provisions. EmPOWERment 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 original buyer no longer uses the Improvement as a principal residence or is unable to continue ownership, then the buyer must sell, transfer, or otherwise dispose of its interest in the Improvement only to a low-income household,one whose combined income does not exceed 80%of the median household income as determined annually by HUD,to use as their principal residence. 5.2 The original buyer shall receive a fair return on investment(including the buyer's investment and any capital investment). 5.3 The resale provision shall remain in effect for the full affordability period—99 years. 6. Miscellaneous Provisions. a. Termination of Agreement.The full benefit of the Project will be realized only after the completion of the affordability periods for all properties constructed with funds provide affordable units to low-income families. It is the County's intention that the full public benefit of this project shall be completed under the auspices of EmPOWERment for the assisted units as follows: i. In the event that EmPOWERment is unable to proceed with any aspect of the Project in a timely manner, and County and EmPOWERment determine that reasonable extension(s) for completion will not remedy the situation, then EmPOWERment will retain responsibility for requirements for any units assisted and County will make no further payments to EmPOWERment. ii. In the event that EmPOWERment,prior to the close of the final affordability period, is unable to continue to function due to,but, not limited to,closure or insolvency of the organization, filing a petition of bankruptcy or similar proceedings, or is adjudged bankrupt or fails to comply or perform with provisions of this agreement as required by federal regulations,then EmPOWERment shall,upon the County's request, convey to the County the properties assisted with funds. Conveyance shall be at the sole discretion of County and on a property by property basis. Conveyance of properties shall be on the terms set forth herein: 4 DRAFT 5 Conveyance of properties shall occur within thirty (30) days of County and EmPOWERment's agreement of EmPOWERment's inability to continue as a viable organization. EmPOWERment shall convey the subject properties to County by statutory warranty deed, free and clear of all liens and encumbrances of record. b. Default, Remedies. This Agreement may be terminated by a non-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. C. Books and Records. EmPOWERment shall maintain records of its grant requirements under this contract for a period of not less than five (5) full fiscal years following completion date of this contract as follows: i. EmPOWERment shall ensure access to records and financial statements, as necessary,to provide effective monitoring and evaluation of project performance. Upon reasonable advance notice, County or its authorized representatives may from time to time inspect, audit, and make copies of any of EmPOWERment's records that relate to this contract. If any audit by County discloses that payments to EmPOWERment were in excess of the amount to which EmPOWERment was entitled under this contract, EmPOWERment shall promptly pay to County the amount of such excess. If the excess is greater than 1% of the contract amount, EmPOWERment shall also reimburse County its reasonable costs incurred in performing the audit. ii. EmPOWERment shall maintain files of all buyers, regardless of length of occupancy,residing in assisted units. Documentation shall verify eligibility for federal assisted housing, at the point of initial closing on the unit, and every subsequent buyer thereafter for the period of affordability. Information maintained shall include buyer income level, ethnic data, female head of household, and disability status and Property and Improvement purchase price. iii. EmPOWERment shall maintain records verifying the affordability of the assisted units. Each party agrees that any authorized representative of the County shall at all reasonable times, have access to and the right to inspect, copy, audit and examine all of the books, records and other documents relating to the grant and the fulfillment of this Agreement for a period of five (5) fiscal years following the completion of the Project. d. 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 5 DRAFT 6 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 EmPOWERment: EmPOWERment, Inc. 705-A Rosemary Street Carrboro, NC 27510 ATTN: Executive Director Either the County or EmPOWERment may change the person or address to which any future Notice shall be given as herein provided. e. No Assignment. No transfer or assignment of EmPOWERment interest in this Agreement shall occur without the prior written consent of the County. f, Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 9- Indemnification.To the extent legally possible, EmPOWERment 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 EmPOWERment and EmPOWERmenfs employees, agents, officers, and contractors in connection with this contract. In the event any such action or claim is brought against County, EmPOWERment shall, upon County's tender, defend the same at EmPOWERmenf s sole cost and expense, promptly satisfy any judgment adverse to County or to County and EmPOWERment, jointly, and reimburse County for any loss, cost, damage,or expense,including attorney fees suffered or incurred by County. h. Subcontracting. EmPOWERment shall not subcontract work under this contract, in whole or in part,without County's prior written approval. EmPOWERment 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 obligations of EmPOWERment specified in this contract. Notwithstanding County's approval of a subcontractor, EmPOWERment shall remain obligated for full performance of this contract and County shall incur no obligation to any subcontractor EmPOWERment shall indemnify, defend, and hold County harmless from all claims of its contractors. 6 A DRAFT 7 i. No Joint Venture or Agency. The County and EmPOWERment each agree and acknowledge that nothing contained herein or otherwise, including, without limitation, any act of the County or EmPOWERment under this Agreement, shall be deemed or construed to create any relationship of joint venture, partnership or agency between the parties. j. 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 EmPOWERment 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 EmPOWERment be a waiver by the County of its rights and remedies with respect to that or any other breach. k. 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. 1. 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 EmPOWERment 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 EmPOWERment 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. M. Equal Opportunity. EmPOWERment 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 this Project. Further, EmPOWERment shall provide a Statement regarding the utilization of minority and women-owned businesses in the planning and development of the Project. This statement will be Exhibit C to this agreement. n. Headings. Headings are for convenience only and shall not be used to interpret or construe its provision. o. 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 7 DRAFT • 8 entity when the context so requires. The singular number includes the plural and vice versa, whenever the context so requires. P. 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. q. 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, EmPOWERment 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. r. Publicity; Signage. EmPOWERment 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. S. 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. t. No Third Party Rights. The parties hereto covenant and agree that nothing contained in this Agreement or any act by the County or EmPOWERment 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, EmPOWERment or any of their respective officers, agents or employees by any third party. U. 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. 8 DRAFT 9 ` 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. COUNTY OF ORANGE,NORTH CAROLINA (SEAL) John M. Link, Jr., County Manager ATTEST: Beverly A. Blythe Clerk to the Board of Commissioners NORTH CAROLINA ORANGE COUNTY This is to certify that on this day personally came before me Beverly A. Blythe, with whom I am personally acquainted, and being by me duly sworn, says that John M. Link, Jr. is the County Manager of Orange County, NC, and that she the said Beverly A. Blythe, is the Clerk to the Board of Commissioners of the County of Orange, the body politic and corporate named within and which executed the foregoing instrument; that she knows the common seal of said County; that the seal affixed to said instrument is said common seal; that the name of Orange County was subscribed thereto by the said County Manager of Orange County, NC and said Beverly A. Blythe subscribed their names hereto and said common seal was affixed, all by order of the Board of County Commissioners of Orange County and that said instrument is the act and deed of Orange County. Witness my hand and notarial seal, this the day of 2000. Notary Public My commission expires: 9 DRAFT 10 EmPOWERment,Inc. (SEAL) President ATTEST: Secretary NORTH CAROLINA ORANGE COUNTY I, , Notary Public in and for the above named County and State, do hereby certify that on this day personally appeared before me with whom I am personally acquainted, who, being by me duly sworn, says at he is Secretary and that is President of EmPOWERment, Inc., a North Carolina corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its President, sealed with its corporate seal and attested to by its Secretary. Witness my hand and notarial seal, this the day of 2000. Notary Public My commission expires: Approved as to form and legality Geoffrey Gledhill, County Attorney This document has been preaudited in accordance with the N.C. Local Government and Fiscal Control Act. Kenneth Chavious, Finance Director 10