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HomeMy WebLinkAbout2019-791-E Housing - Community Home Trust grant agreement 1 NORTH CAROLINA ORANGE COUNTY GRANT AGREEMENT This is an AGREEMENT between ORANGE COUNTY, NORTH CAROLINA, a general local governmental unit of the State of North Carolina, (hereinafter referred to as the “County”) and COMMUNITY HOME TRUST INC., a North Carolina non-profit corporation (hereinafter referred to as “CHT”). The effective date of this agreement is October 18, 2019. WITNESSETH WHEREAS, on May 4, 2011, the County, through its HOME Consortium, approved an award of federal HOME funds in the form of a loan not to exceed $300,000 at an interest rate of two percent (2%), to the Landings at Winmore to assist in the construction of a fifty-eight (58) unit affordable housing development known as “The Landings at Winmore” in Carrboro, North Carolina; and WHEREAS, the County, to assure the long term affordability of The Landings at Winmore, caused The Landings at Winmore to be encumbered by various means, including a Development Agreement dated April 13, 2011, and a Deed of Trust and Promissory Note and a Declaration of Restrictive Covenants, all dated May 4, 2011; and WHEREAS, on December 29, 2017, the County consented to the transfer of The Landings at Winmore to CHT, subject to CHT assuming the requirements of the Development Agreement, Promissory Note, Deed of Trust recorded in Book 5154 at Page 234, and Declaration of Restrictive Covenants recorded in Book 5154 at Page 175, Orange County Registry; and WHEREAS, CHT submitted a request dated February 15, 2019 for funding to assist the Landings at Winmore as it relates to its operational and capital reserves; and WHEREAS, on March 19, 2019, the Board of County Commissioners approved the February 15, 2019 request and allocated eighty thousand dollars ($80,000) of County funds to CHT to ensure adequate operating and capital reserves at the Landings at Winmore, subject to reporting requirements for periodic review of performance and ongoing improvement of identified challenges at the Landings at Winmore; and WHEREAS, the Landings at Winmore will continue to be subject to the long term affordability requirements of the Development Agreement, Deed of Trust and Promissory Note, and Declaration of Restrictive Covenants assigned to and assumed by CHT in Deed Book 6408, Page 572, Orange County Registry, as well at the terms of this Agreement; NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations contained herein, it is agreed between the parties hereto as follows: DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01 2 1. CHT shall provide the County its list of all needed and/or anticipated deferred maintenance and applicable operating and capital reserve items at the Landings at Winmore (hereinafter, the “Landings at Winmore” or the “Property”) for the year in which this Agreement is executed by December 31, 2019. 2. CHT shall provide the County an annual report addressing update(s) on deferred maintenance and applicable operating and capital reserve items undertaken and/or completed and updated financials. Annual reports shall be completed and submitted to the County in accordance with Section 6, Term & Timeliness, below. 3. CHT shall promptly notify the County in the event either operating or replacement reserve funds reach a level of ten thousand dollars ($10,000) and additional grant funds may be necessary. The County shall not be obligated by this Agreement to provide further support to CHT. 4. CHT agrees to rent dwelling units at the Landings at Winmore as follows: dwelling units to 15 low income eligible households earning less than 40% of the Area Median Income, 21 eligible households earning less than 50% of the Area Median Income, and 22 eligible households earning less than 60% of the Area Median Income by family size, as determined by the U.S. Department of Housing and Urban Development, consistent with the terms of the Development Agreement dated April 11, 2013 and applicable terms of the Amendment to the Development Agreement effective July 1, 2011. The terms of both the Development Agreement and the Amendment to the Development Agreement, are hereby incorporated by reference into and made part of this Agreement. 5. The period of affordability will be at least 99 years and shall be secured by the Declaration of Restrictive Covenants recorded in Book 5154 at Page 175, Orange County Registry and assumed by CHT in Deed Book 6408, Page 572, Orange County Registry . 6. AMOUNT AND USE OF FUNDS. Upon submission of the complete list of all needed and/or anticipated deferred maintenance and applicable operating and capital reserve items at the Landings at Winmore the County shall make available to CHT up to Eighty Thousand Dollars and 00/100 ($80,000) pursuant to this Agreement. Said funds shall be disbursed by a check payable to CHT for performance of the services described in this Agreement. All funds appropriated shall be used for purposes described herein. Any funds not used for the purposes stated shall be returned to the County. Any changes in the use of funds must be authorized in writing by the County prior to any expenditure of the funds by CHT. If the funds are expended not in accordance with this Agreement, at the discretion of the County CHT may be required to repay the funds to the County. 7. TERM & TIMELINESS The Project completion date is five (5) years from effective date of this Agreement. This Agreement may be renewed by the County Manager for up to two (2) additional five (5) DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01 3 year terms. Notwithstanding the foregoing, the Project completion date shall not exceed fifteen (15) years from the effective date of this Agreement. CHT shall complete and submit its list of all needed deferred maintenance and applicable operating and capital reserve items for 2019, 2020 and 2021 by December 31, 2019. CHT shall complete and submit its first annual report and updated financials by January 31, 2021. Thereafter, in the event this Agreement is renewed, CHT shall complete and submit its annual report and updated financials, together with a list of all needed and/or anticipated deferred maintenance and applicable operating and capital reserve items at the Property by January 31 of each year during which this Agreement and/or any renewal thereof is effective. In addition, CHT agrees to furnish to the County a copy of its annual audit performed by a certified public accountant within 120 days of the end of each fiscal year during which this Agreement and/or any renewal thereof is effective. In the event that CHT is unable to proceed with any aspect of the project in a timely manner, and County and CHT determine that reasonable extension(s) for completion will not remedy the situation, then the Termination of Agreement provisions of this Agreement shall pertain. CHT 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 completion date or declare CHT in default. CHT shall monitor each dwelling unit for affordability for the period of affordability – ninety-nine (99) years in accordance with the Declaration of Restrictive Covenants recorded in Book 5154 at Page 175, Orange County Registry and assumed by CHT in Deed Book 6408, Page 572, Orange County Registry. 8. MISCELLANEOUS PROVISIONS A. Termination of Agreement. In the event of any of the circumstances set forth below (hereinafter referred to as “default”), the County may immediately terminate this Agreement, in whole or in part, and from time to time. Notice of termination must be in writing, state the reason or reasons for the termination, and specify the effective date of the termination. Default includes any of the following: i. In the event that CHT shall cease to exist as an organization or shall enter bankruptcy proceedings, be declared insolvent, or liquidate all or substantially all of its assets, or significantly reduce its services or accessibility to Orange County residents during the term of this Agreement; or ii. In the event that CHT shall fail to comply with the reporting requirements as provided section 7 above, the County may terminate this Agreement and CHT shall return all payments already made to it by the County for grants funds which have not been used as DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01 4 contemplated by this Agreement or for which no satisfactory reporting has been rendered; or iii. In the event of any fraudulent representation by CHT in any verification required to obtain payment under this Agreement or other dishonesty on a material matter relating to CHT’s performance under this Agreement. iv. Nonperformance, incomplete service or performance, or failure to satisfactorily perform any part of this Agreement or to comply with any provision of this Agreement, as determined by the County in its sole discretion. v. Failure to adhere to the terms of applicable county, state or federal laws, regulations, or stated public policy. vi. In the event of default by CHT, the County may elect to terminate this Agreement, in whole or in part and/or require CHT to repay the funds within thirty (30) days from written notice of default. The County may (but shall not be required to) grant CHT an opportunity to cure the default without termination of this Agreement. This clause shall not be interpreted to limit the County’s remedies in law or in equity. B. Books and Records. CHT 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. CHT shall ensure access to records and financial statements, as necessary, to provide effective monitoring and evaluation of project performance. Additionally, CHT shall submit a copy of its annual audit to the County. ii. Upon reasonable advance notice, the County or its authorized representatives may from time to time inspect, audit, and make copies of any of CHT's records that relate to this contract. If any audit by the County discloses that payments to CHT were in excess of the amount to which CHT was entitled under this contract, CHT shall promptly pay to the County the amount of such excess. If the excess is greater than 1% of the contract amount, CHT shall also reimburse the County its reasonable costs incurred in performing the audit. iii. CHT, or CHT’s property manager, shall maintain files of all tenants residing in the dwelling units. Documentation shall verify eligibility for the dwelling unit prior to the initial signing of the lease and re-verified if required by HUD and/or Treasury. Information maintained shall include, as applicable: household income, household composition, race/ethnicity, familial status, and disability status. iv. CHT, or CHT’s property manager, shall maintain records verifying the affordability of the dwelling unit. C. 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 DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01 5 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 CHT: Community Home Trust 109 Conner Drive, Suite 1000 Chapel Hill, NC 27514 ATTN: Executive Director Either the County or CHT may change the person or address to which any future Notice shall be given as herein provided. D. No Assignment. No transfer or assignment of the interest of CHT on this Agreement shall occur without the prior written consent of the County; neither may CHT assign this Agreement without the prior written consent of the County. E. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. F. Indemnification. To the extent legally possible, CHT shall indemnify and hold the 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 CHT, its employees, agents, officers, and contractors in connection with this contract. In the event any such action or claim is brought against the County, CHT shall, upon the County's tender, defend the same at CHT’s sole cost and expense, promptly satisfy any judgment adverse to the County or to the County and CHT jointly, and reimburse the County for any loss, cost, damage, or expense, including attorney fees suffered or incurred by the County. G. Subcontracting. CHT shall not subcontract work under this Agreement, in whole or in part, without the County's prior written approval. CHT 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 CHT specified in this contract. Notwithstanding the County's approval of a subcontractor, DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01 6 CHT shall remain obligated for full performance of this contract and the County shall incur no obligation to any subcontractor. CHT shall indemnify, defend, and hold the County harmless from all claims of its contractors. H. No Joint Venture or Agency. The County and CHT each agree and acknowledge that nothing contained herein or otherwise, including, without limitation, any act of the County and CHT under this Agreement, shall be deemed or construed to create any relationship of joint venture, partnership or agency between the parties. I. 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 CHT 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 CHT be a waiver by the County of its rights and remedies with respect to that or any other breach. J. 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. CHT certifies by executing this Agreement that they have not been identified, and have not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.58. By executing this Agreement CHT certifies that they have not been identified, and have not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.81. By executing this Agreement CHT affirms they are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. K. 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 CHT 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 CHT 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. DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01 7 L. Equal Opportunity. CHT 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. M. Headings. Headings are for convenience only and shall not be used to interpret or construe its provision. N. 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. O. 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. P. 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, CHT shall comply with all federal, state and local laws, regulations and ordinances applicable to the expenditure of funds provided by the County. Q. Publicity; Signage. CHT 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. R. 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. S. No Third Party Rights. The parties hereto covenant and agree that nothing contained in this Agreement or any act by the County or CHT 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, CHT or any of their respective officers, agents or employees by any third party. T. 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. DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01 8 [SIGNATURES ON FOLLOWING PAGE] DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01 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. COMMUNITY HOME TRUST, INC. _________________________________ ______________________ _________________________, President Date ORANGE COUNTY, NORTH CAROLINA ________________________________ _______________________ Bonnie Hammersley, County Manager Date This document has been pre-audited in accordance with the N.C. Local Government and Fiscal Control Act. Gary Donaldson, Finance Director ___________________________ Approved as to form and legality ____________________________ John Roberts, County Attorney DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01 10 EXHIBIT A Legal Description Lying and being in Orange County, North Carolina, and more particularly described as follows: BEING all of Lot 177, containing a recombined area of 1.40 acres, 61,069 square feet, more or less; all of Lot 178, containing a recombined area of 0.95 acres, 41,333 square feet, more or less, and all of New Lot 180, containing 0.05 acres, 2,250 square feet, more or less, all as shown on a plat and survey by The John R. McAdams Company, Inc., dated 1/1/2010 and entitled “Winmore Subdivision, recombination and Easement Dedication Plat,” and recorded in Plat Book 106, Pages 102-104, inclusive, Orange County Registry. (PIN #s: 9779297369, 9779298520, 9779289733) DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01      DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). CONTACTPRODUCERNAME: FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: PRODUCER CUSTOMER ID #: INSURER(S) AFFORDING COVERAGE NAIC # INSURED INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ADDL SUBRINSR POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITSPOLICY NUMBERLTR (MM/DD/YYYY) (MM/DD/YYYY)INSR WVD GENERAL LIABILITY EACH OCCURRENCE $ DAMAGE TO RENTEDCOMMERCIAL GENERAL LIABILITY $PREMISES (Ea occurrence) CLAIMS-MADE OCCUR MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER:PRODUCTS - COMP/OP AGG $ PRO-$POLICY LOCJECT COMBINED SINGLE LIMITAUTOMOBILE LIABILITY $(Ea accident) ANY AUTO BODILY INJURY (Per person) $ ALL OWNED AUTOS BODILY INJURY (Per accident) $ SCHEDULED AUTOS PROPERTY DAMAGE $(PER ACCIDENT)HIRED AUTOS $NON-OWNED AUTOS $ UMBRELLA LIAB EACH OCCURRENCE $OCCUR EXCESS LIAB CLAIMS-MADE AGGREGATE $ $DEDUCTIBLE $RETENTION $ WC STATU- OTH-WORKERS COMPENSATION TORY LIMITS ERAND EMPLOYERS' LIABILITY Y / NANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $N / AOFFICER/MEMBER EXCLUDED? (Mandatory in NH)E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMIT $DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE © 1988-2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORDACORD 25 (2009/09) OP ID: HK 07/17/2019 Jeff Rubish, CICHigh & Rubish Insurance Agency P.O. Box 30406015 Farrington Rd. Ste 101Chapel Hill, NC 27517 Jeffrey A. Rubish 919-913-1144 913-913-1155 jeff@highandrubish.com COMMU-6 Community Home Trust PO Box 2315 Chapel Hill, NC 27515 Owners Insurance Company 32700 Hartford Fire Insurance Co 29424 1,000,000 AX X 9111638100 11/27/2018 11/27/2019 100,000 X 5,000 A 35116381 07/01/2018 07/01/2019 1,000,000 35116381 07/01/2019 07/01/2020 2,000,000 2,000,000 X 1,000,000 AX 9111638100 11/27/2018 11/27/2019 AX X A 35017592 01/02/2019 01/02/2020 1,000,000 35017592 01/02/2018 01/02/2019 1,000,000 1,000,000 B Dishonesty Bond 22BPEAM8065 09/11/2018 09/11/2019 500,000 Additional Insured: Orange County ORANGEC Orange County Government P.O. Box 8181 Hillsborough, NC 27278 DocuSign Envelope ID: F9614B21-556E-42D5-A5C1-2B3EF7E3AB01