"It’s unsurprising that the real estate transactions are fuzzy in the public mind, and even in the minds of some councilmembers. They were arranged by the Community Foundation, a private entity.
Hagan called the transactions “transparent,” by which he said he meant its details were known to the sellers, the Community Foundation and the City of Greensboro.
...Hagan and the Community Foundation put together the deal for the eight parcels, including their prices and commissions, and presented them to the City Council.
It’s unclear how often the City Council was briefed on the deal in closed session as it developed, but by the time it became public, it was frozen in a web of contracts that couldn’t easily be undone without killing the project.
...the Community Foundation never took title to the properties.
...Although the sites were made public, the Community Foundation’s real estate negotiations, by their nature, were not. How much attention the City Council paid to them is hard to tell.
...Hagan’s marching orders were the opposite of the way the City of Greensboro would normally have acquired land for the performing arts center.
...Hagan negotiated with the owners, assembled the eight properties and then had the Community Foundation sign purchase agreements for them. The Community Foundation had to pay only a nominal amount of earnest money – $1,000 for most of the properties. The purchase agreements were placeholders for the city’s eventual purchase of the properties.
Normally, if the city decided to buy land for a project, it would have its internal real estate buyers, who are on salary instead of commission, represent the city in the transaction – or it would have hired an outside real estate agent to do so, in which case the City Council would have known the agent’s commissions up front.
If the City Council had hired Hagan, for example, it would have an agency contract with him – a contract required by the North Carolina Real Estate Commission that makes clear who, in a transaction, an agent represents.
Hagan’s commission would be paid by the seller, not the buyer. But the commissions are built into the asking price.
That’s how Hagan’s commissions were built into the deal the City Council eventually approved. His contracts with the property owners provided that the contracts, including the commissions, would be binding on the parties and “their respective successors and assigns.
Then the Community Foundation, for each property, signed an “assignment and assumption agreement” with the city, transferring the right to purchase the property – and, Hagan, Wooten and city officials argue, Hagan’s commission – to Greensboro.
Not everyone agrees that a commission can be transferred through an assignment contract.
“I wouldn’t think so,” said Betsy Penney, an information officer with the Regulatory Affairs Division of the North Carolina Real Estate Commission. “I would think they would require a new buyer agent agreement. I’ve never heard of anyone assigning a buyer agent agreement to a third party.”
Informed of Penney’s opinion, Councilmember Jim Kee said, “Ooh, that’s not good, then.”
Hagan, however argued that the wording of his contracts with the sellers should suffice to transfer his commissions to the city.
“I would have thought that the obligation and the agency agreement is binding on successors and assigns,” he said. “We didn’t need a separate agency agreement with the city because it went through the successors and assigns clause.”
That’s another reason some councilmembers may have been surprised by the cost of Hagan’s commissions. The city had no direct contract with Hagan; his commissions were buried in the asking prices of the sellers; but a Sept. 18, 2013 spreadsheet broke out each of Hagan’s commissions for the City Council. They totaled $585,799.”
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