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HomeMy WebLinkAboutAgenda - 11-19-1997 - 9c ORANGE COUNTY BOARD OF COMMISSIONERS Action Agenda Item No. ACTION AGENDA ITEM ABSTRACT Meeting Date: November 19, 1997 SUBJECT: HOME Program- Creel Street DEPARTMENT: Housing and Community Development PUBLIC HEARING: (Y/N) 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 authorize the transfer of one lot on Creel Street in Chapel Hill from the Orange Community Housing Corporation to EmPOWERment,Inc. and authorize the Chair to execute a Development Agreement with this agency on behalf of the Orange County HOME Consortium. BACKGROUND: In 1993, the Orange County HOME Consortium provided $16,000 in HOME funds to the Orange Community Housing Corporation to purchase a vacant lot on Creel Street in the Pine Knolls community with plans to build a house for a first time homebuyer. The Orange Community Housing Corporation(OCHC)has not developed this property to date. The OCHC Board of Directors has discussed the present situation and will not be able to move ahead with any new development plans until a new Director is on board. Meanwhile, officials at EmPOWERment, Inc. have expressed an interest and willingness to develop this lot within the next 12 months. Therefore, the Orange County HOME Council recommends the transfer of the vacant lot on Creel Street to EmPOWERment, Inc. . Upon transfer, the existing note and deed of trust with OCHC will be released and a new note and deed of trust in the same form shall be executed by EmPOWERment, Inc.. In addition, the County as the lead entity would enter into a Development Agreement with EmPOWERment,Inc. on behalf of the Orange County HOME Consortium. RECOMMENDATION(S): The Manager recommends the transfer of one lot on Creel Street in Chapel Hill from the Orange Community Housing Corporation to EmPOWERment, Inc. and authorize the Chair to execute a Development Agreement with this agency on behalf of the Orange County HOME Consortium upon the County Attorney's review and approval. r 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, Inc., a North Carolina nonprofit corporation (hereinafter referred to as "EmPOWERment"). The date of this Agreement is WITNESSETH WHEREAS, the Orange County HOME Consortium has expended $16,000 in FY 1992 HOME funds for the purpose of acquiring the property more particularly described in Exhibit A attached hereto and made a part of this Agreement (hereinafter referred to as the"Property"); and WHEREAS, the County is the lead entity of the Orange HOME Consortium, so designated in an agreement dated August 27, 1992, and amended January 26, 1993, and July 28, 1993, 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.) el. s=-) (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, EmPOWERment intends to develop the Property for the purpose of constructing homeownership opportunities for first-time homebuyers. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto do agree as follows: 1. EmPOWERment agrees to accept conveyance of the Property and then to market the Property, construct a single family home on the Property for the selected buyer and complete the sale of the Property to the selected buyer on or before December 31, 1998. The sales price of the Property to the selected buyer shall not exceed the North Carolina Housing Financing Agency maximum new home sales price in effect at the time of the sale to the selected buyer. 2. The conveyance of the Property shall be secured by a note from EmPOWERment to the County and a deed of trust constituting a first lien on the Property which deed of trust shall designate the County as the secured party/beneficiary. The note and deed of trust shall be in the form of the documents that are attached to and a part of this Agreement. The County agrees to subordinate its lien on the Property to a first lien securing private 3 construction financing acquired by EmPOWERment in order to complete the project. 3. EmPOWERment agrees to sell the home to a qualified buyer 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. At the closing of the sale to a homebuyer, EmPOWERment shall repay the County $16,000 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 lien on each lot to a first lien securing private permanent financing acquired by the homebuyer. The period of affordability for HOME funds in accordance with the Act, its regulations and State Program Requirements shall be 20 years from the date of execution of this Agreement. The default interest rate shall be 7% per annum. EmPOWERment shall provide to the County, prior to closing the sale of the Property to the homebuyer, documentation satisfactory to the County verifying the income of the homebuyer. 4. The County and EmPOWERment agree to comply with the Act, its regulations and State Program Requirements in the purchase and sale of the Property. The County and EmPOWERment further agree to comply with the provisions of the funding agreement, dated July 28, 1993, attached hereto and made a part of this Agreement (Exhibit B). 5. Miscellaneous Provisions. a. Termination of Agreement The obligations of the parties hereunder and the specific obligation of EmPOWERment to accept conveyance of the Property and construct a house thereon shall terminate upon the completion of the sale of the Property to a homebuyer. Continuing obligations of the homebuyer shall be contained in the note and deed of trust to be recorded at the time of closing of the sale of the Property. 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 4 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. 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. d. Conflict with HOME Agreement. Notwithstanding anything herein to the contrary, the parties hereto acknowledge the due execution of a HOME Program Agreement between the County and the U.S. Department of Housing and Urban Development and agree that any conflict between the provisions, requirements, duties or obligations of this Agreement and the HOME Agreement shall be resolved in favor of the HOME 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 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 St. Carrboro, N.C. 27510 Either the County or EmPOWERment may change the person or address to which any future Notice shall be given as herein provided. f. No Assignment. No transfer or assignment of EmPOWERment's interest in this Agreement shall occur without the prior written consent of the County. 5 g. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. h. Entire Agreement; Modification. This Agreement, with all exhibits and attachments hereto, constitutes the entire agreement between the County and EmPOWERment. 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 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. I. 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 ini i . 6 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, 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 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. 7 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 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: 8 EmPOWERment, 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 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 1997. Notary Public My commission expires: