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HomeMy WebLinkAbout1994 S Housing - Orange Community Housing Corporation - Development Agreement w NORTH CAROLINA ORANGE COUNTY DEVELOPMENT AGREEMENT i 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 ORANGE COMMUNITY HOUSING CORPORATION, a North Carolina nonprofit corporation (hereinafter referred to as "OCHC"). The date of this Agreement is MARCH 15, 1994. This agreement will not become effective until all conditions placed upon County's funding approval are satisfied and funds are released by the N.C. Department of Commerce. WITNESSETH WHEREAS, OCHC has purchased and intends to develop the Property for the purpose of constructing homeownership opportunities for first-time homebuyers with incomes at or below 80% of the area median family income for the Raleigh-Durham MSA. WHEREAS, the County desires to participate in this project and received a preliminary award of $250,000 from the N.C. Department of Commerce in February, 1994, for the purpose of providing Public Improvements for Magnolia Place subdivision, a 42-unit single family homeownership project, which property is more particularly described in Exhibit A attached hereto and made a part of this Agreement (hereinafter referred to as the "Property"). "Public Improvements" shall include water facilities, storm and sanitary sewer facilities, street grading and paving, a sewer lift station needed to provide sewer service to the Property, and requisite grading and improvements needed to satisfy the County Sedimentation and Erosion Control requirements; and NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto do agree as follows: 1. OCHC agrees to sell and construct 42 single-family housing units on the Property. All units will be sold to low- and moderate-income persons. 2. OCHC shall provide to the County all engineering design plans and specifications for the public improvements to be installed on the Property. 3. County agrees to execute its responsibilities as defined in the CDBG Grant Application and within the times set forth therein. 4. For all contracted work to be funded by the County under the terms and provisions of this Agreement, public bidding requirements shall apply. The County shall offer and advertise the plans and specifications for public bid in accordance with federal, state and local laws. The County shall accept and evaluate the public bids received and award the contract for the installation of I Public Improvements on the Property. OCHC shall bear the cost of any engineering services, printing and advertising needed to complete the public bid process. 5. The contribution of CDBG funds by the County toward the construction of Public Improvements on the Property shall not exceed $247,050. Should the bid of the selected contractor with the lowest responsible bid exceed this amount, OCHC shall pay to the County any amount over $247,050 from sources other than the CDBG funds provided by the County prior to the commencement of construction. 6. Prior to the commencement of construction of Public Improvements on the Property by the County, OCHC shall execute a promissory note which shall be substantially in the form of Exhibit B attached hereto in the amount of $247,050 to secure the investment by the County in the Property. Repayment of the note shall be secured by a deed of trust in the principal amount of $247,050 naming the County as beneficiary, which deed of trust shall be substantially in the form of Exhibit B attached hereto. 7. OCHC shall market and sell the lots, construct homes for the selected buyers, and complete the sale of the homes on the a minimum of twenty lots in Magnolia Place subdivision by December 31, 1995. 8. The County agrees to subordinate its mortgage interest on the Property to private construction financing acquired by OCHC or its designated homebuilder in order to finance additional Public Improvements and construct a home on the Property. 9. At the closing of each sale to a homebuyer, OCHC shall repay the County with a credit to the homebuyer. The $12,352.50 credit to the homebuyer shall be documented by a promissory note from the homebuyer to the County in the amount of $12,352.50 which note shall be secured by a deed of trust on the parcel to be sold naming the County as beneficiary. The County shall provide a release deed to OCHC at the closing of each sale to a homebuyer, releasing the parcel to be sold from further obligation under the master note and deed of trust between OCHC and the County. The County agrees to subordinate its mortgage interest on each home to a first lien private mortgage acquired by the buyer. The promissory notes and deeds of trust shall be substantially in the form of Exhibit C to this Agreement and in accordance with the Act and its regulations. 10. OCHC agrees to market and sell the homes at a price not to exceed the N.C. Housing Finance Agency maximum new home sales price, currently $97,000, as amended from time to time. OCHC and the County acknowledge that this price is below the maximum allowable HOME sales price. OCHC further agrees to sell the homes to buyers whose incomes do not exceed 80% of the area median income by family size, as defined by the U.S. Department of Housing and Urban 2 Development, as amended from time to time. OCHC shall provide to the County prior to closing the sale of each home documentation, satisfactory to the County, verifying the income of each buyer. 11. The County and OCHC agree to comply with the Act and its regulations in the purchase and sale of the Property. The County and OCHC further agree to comply with the provisions of the Grant Agreement dated , attached hereto and made a part of this Agreement (Exhibit D). 12. Miscellaneous Provisions. a. Termination of Agreement. The obligations of the parties hereunder and the specific obligation of OCHC to construct homes on the Property shall terminate upon the completion of the sale of twenty homes to qualified buyers. Continuing obligations of the buyers shall be contained in the note and deed of trust to be recorded at the time of closing of the sale of each home. 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 parry 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, unless a satisfactory cure cannot be obtained in thirty (30) days, in which case the defaulting party must diligently and continually thereafter work to cure as soon as is possible. 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, and the defaulting parry does not correct or diligently and continually act to cure such default within thirty (30) days after written notice of the default from the non-defaulting parry, or, if a satisfactory cure cannot be obtained within thirty (30) days, the defaulting party does not correct or diligently and continually act to cure such default as soon as is possible. 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. 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 all closeout procedures respecting the Community Development funds and the final settlement and conclusion of all issues arising out of the Community Development project. 3 d. Conflict with CDBG Agreement. Notwithstanding anything herein to the contrary, the parties hereto acknowledge the due execution of a CDBG Grant Agreement between the County and the State and agree that any conflict between the provisions, requirements, duties or obligations of this Agreement and the CDBG Grant Agreement shall be resolved in favor of the CDBG Grant 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 hereinabove 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 OCHC: Orange Community Housing Corporation P.O. Box 307 Carrboro, NC 27510-0307 ATTN: Executive Director Either the County or OCHC 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 OCHC's interest in this Agreement shall occur without the prior written consent of the County. 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 OCHC. 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 OCHC each agree and acknowledge that nothing contained herein or otherwise, including, without limitation, any act of the County or OCHC under this Agreement, shall be deemed or construed to create any relationship of joint venture, partnership or agency between the parties. 4 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 OCHC 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 OCHC 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. Severabllity. 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 OCHC 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 OCHC 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. OCHC 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. 5 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, OCHC 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. OCHC 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 OCHC 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, OCHC 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 estop, 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. 6 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. COU14TY OF GRAN , NORTH CAROLINA (SEAL) Moses Carey, Jr., Chairman Orange County Board of Co missioners ATTEST: Beverly A.43lythe 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 Moses Carey, Jr., 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 (o day of -MAf%Gk , 190: Notary Public My commission expires: 1 'Z• 2 'z - 9 $ 7 ORANGE COMMUNITY HOUSING CORPORATION (SEAL) Keith E. Aldridge, Chair Board of Directors ATTEST: Susan Rodemeir, Secretary Board of Directors G cc NORTH CAROLINA ORANGE COUNTY 1, DV ty . eli A GL 4:V oe Notary Public in and for the above named County and State, do hereby certify that on this day personally appeared before me Susan Rodemeir, with whom I am personally acquainted, who, being by me duly sworn, says at she is Secretary and that Keith E. Aldridge is Chair of the Board of Directors of Orange Community Housing Corporation, 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 1994. yP C. Awl °r'�• Notary Public pTA Ry r co is4ion expires: " PUB L 1 C •' ' 8