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HomeMy WebLinkAboutAgenda - 06-02-1997 - 8k 1 4 ORANGE COUNTY BOARD OF COMMISSIONERS Action Agenda Item No. 8-k ACTION AGENDA ITEM ABSTRACT Meeting Date: June 2, 1997 SUBJECT: Efland Estates -Development Agreement DEPARTMENT: Housing and Community Development PUBLIC HEARING: (Y/N) h BUDGET AMENDMENT: (Y/N) ATTACHMENT(S): INFORMATION CONTACT: Development Agreement Tara L. Fikes TELEPHONE NUMBERS: --ext. 2490 Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 Mebane 227-2031 PURPOSE: To approve a Development Agreement with Habitat for Humanity of Orange County,NC, Inc. for the Efland Estates Community Development Block Grant(CDBG)Program. BACKGROUND: In August 1996,the County was granted $145,750 in Community Development Block Grant (CDBG) funds to provide the public water and sewer and street paving for a small, nine (9) single family subdivision being developed by Habitat for Humanity of Orange Co.,NC,Inc. in the Efland community. In order to proceed with this grant,the Division of Community Assistance(DCA) requires the County to enter into a legally binding agreement to ensure that Habitat will construct and sell five (5)homes by July 8, 1998 -the County's scheduled completion date according to DCA. This document has been forwarded to the County Attorney for comment and review. RECOMMENDATION(S): The Manager recommends approval of the Development Agreement with Habitat for Humanity of Orange County,NC,Inc. and authorize the Chair to sign the document on behalf of the Board. f 2 NORTH CAROLINA ORANGE COUNTY DEVELOPMENT AGREEMENT ", D ru L U 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 Co., NC, Inc., a North Carolina nonprofit corporation (hereinafter referred to as "Habitat"). This agreement will not become effective until all conditions placed upon the County's funding approval are satisfied and funds are released by the N.C. Department of Commerce-Division of Community. The date of this Agreement is WITNESSETH WHEREAS, Habitat owns a parcel of approximately 4.67 acres located in the Cheeks Township of Orange County more particularly described in Exhibit A attached hereto and made a part of this Agreement(hereinafter referred to as the "Property"); and hereinafter referred to as"the Property"; and WHEREAS, Habitat desires to improve the Property by constructing homeownership opportunities for first-time homebuyers, in accordance with all applicable legal requirements and the Charter and Bylaws of Habitat, for sale to low and moderate income families; and WHEREAS, Orange County desires to participate in this project and has received a Community Development Block Grant (CDBG) from the N.C. Department of Commerce Division of Community Assistance (DCA) in the amount of $145,750 to be used for the provision of public water and sewer and street paving on the Property; and NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,the parties hereto do agree as follows: 1. Habitat agrees to execute its responsibilities identified in the County's CDBG application to DCA dated March 20, 1996 (Exhibit B). 2. Habitat further agrees to construct no fewer than five (5) houses for low and moderate income families and complete sales of the homes by July 8, 1998. With prior approval from DCA,this commitment may be partially waived by the County, if failure to meet the commitment is determined to be due to events beyond the control of the Developer including, but not limited to, an unfavorable, unforeseable occurrences of severe economic conditions and where such waiver will not substantially affect the project as described in the application. 3. The County agrees to execute its responsibilities as defined in the approved grant application as amended(Exhibit B) and Grant Agreement within the times set forth therein. 3 4. Habitat agrees to sell the homes to qualified buyers whose income does not exceed 80% 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. The period of affordability shall be 20 years from the date of execution of this Agreement. 5. The County and Habitat agree to comply with the CDBG regulations in the construction and sale of the identified dwelling units. The County and Habitat further agree to comply with the provisions of the Grant Agreement dated July 8, 1998 attached hereto and made a part of this Agreement(Exhibit Q. 6. Upon completion of the obligation of each party under this Agreement, and the receipt of a Certificate of Completion from DCA; the County shall notify Habitat in writing that all requirements have been fulfilled thereby releasing Habitat from its obligations herein stated. 7. Miscellaneous Provisions. a. Termination of Agreement. The obligations of the parties hereunder and the specific obligation of Habitat to accept conveyance of the Property and construct a houses thereon shall terminate upon the completion of the sale of the Property to each homebuyer. Notwithstanding the foregoing, the parties hereto may terminate this Agreement at any time by a mutual agreement to that effect in writing. b. Default, Remedies. This Agreement may be terminated by a non-defaulting party upon an event of default hereunder, after written notice thereof is given giving the defaulting party thirty (30)days in which to cure the default. As used herein, the term "an event of default" shall mean and refer to a breach of any of the terms of this Agreement including a failure to meet the time limitations contained in this Agreement and a failure to act as required by this Agreement by either party with respect to any undertaking, obligation, covenant or condition as set forth in this Agreement which the defaulting party has not cured. 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. In the event of default by Habitat, the County is not responsible for paying or reimbursing Habitat for expenses incurred by Habitat in the development or sell of the property. c. Books and Records. Each party shall keep and maintain books, records and other documents relating directly to the receipt and disbursement of grant funds and the fulfillment of this Agreement. Each party agrees that any authorized representative of the County, the State, the U.S. Department of Housing and Urban Development and Comptroller General of the United States 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 three (3) years following the completion of the Project. 4 f d. Conflict with CDBG Agreement. Notwithstanding anything herein to the contrary, the parties hereto acknowledge the due execution of a CDBG Program Agreement between the County and the N.C. Department of Commerce and agree that any conflict between the provisions, requirements, duties or obligations of this Agreement and the CDBG Agreement shall be resolved in favor of the CDBG Agreement. e. 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 parry. 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: L 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 of Orange Co.,NC, Inc. 200 Davis Rd. Hillsborough,NC 27278 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. L No Assignment. No transfer or assignment of Habitat's interest in this Agreement shall occur without the prior written consent of the County. g. Binding Effect. This Agreement constitutes a legally enforceable contract and shall be governed by and construed in accordance with the laws of the State of North Carolina. h. Entire Agreement; Modification. This Agreement, with all exhibits and attachments hereto, constitutes the entire agreement between the County and Habitat. No modification or amendment to this Agreement shall be binding upon either party unless made in writing and executed by each party. i. 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. 5 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 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 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. 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 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. M. 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, or handicap. 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 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 6 ; 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. r. 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. 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 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. 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. 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) William Crowther, Chairman Orange County Board of Commissioners 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 William Crowther is the Chairman of the Orange County Board of Commissioners, and that she the said Beverly A. Blythe, is the Clerk to the Board of Commissioners of the County of Orange, the body politic i 7 z 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 Chairman of the Orange County Board of Commissioners and that the said Chairman of the Orange County Board of Commissioners 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 1997. Notary Public My commission expires: HABITAT FOR HUMANITY OF ORANGE COUNTY,NC,INC. (SEAL) President Board of Directors ATTEST: Secretary, Board of Directors 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 that she/he is Secretary and that is President of the Board of Directors of Orange County Habitat for Humanity of Orange Co., 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 1997. Notary Public My commission expires: