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HomeMy WebLinkAboutS Grant - Housing - Consolidated Housing Plan Annual Update/HOME Program 05-05-2009-5kl' } --Please return this copy to NORTH CAROLINA Clerk to the Board's office for P 5 -5 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 June 21, 2010 WITNESSETH WHEREAS, the Orange County HOME Consortium has designated $139,033 in FY 2009 HOME funds for the purpose of homeownership assistance for first-time homebuyers of Land Trust homes by reducing the purchase price to meet buyers' affordability needs hereafter referred to as the "Project" or the "project dwelling units"; and WHEREAS, the County is the lead entity of the Orange HOME Consortium, so designated in an agreement dated July 1, 2008 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.) et. sec .) (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, the Community Home Trust (CHT) formerly known as Orange Community Housing and Land Trust (OCHLT) is a designated Community Housing Development Corporation (CHDO) as defined in 24 CCR Part 92, Subpart A, Section 92.2 interested in serving as sponsor, developer, and/or advocate for potential first-time homebuyers; and WHEREAS, afirst-time homebuyer for the purposes of this program is defined as any household earning up to 80% of HUD area median income that has not owned a home within the past three (3) years including households living in manufactured housing not permanently affixed to a foundation, or owner-occupants of homes not feasible for rehabilitation; and WHEREAS, CHT intends to make them available for lease, as described herein, to families earning up to 80% of HUD area median income as described in the FY 2009 OCHLT HOME Program Application which Application is incorporated by reference into this Agreement. The FY 2009 HOME Program Application is on file in the office of the Orange County Department of Housing and Community Development. WHEREAS, notwithstanding any provision of this Agreement, the County and CHT hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or 1 site approval, and that such commitment of funds or approval may occur only upon satisfactory completion of an environmental review and receipt by Orange County of a Release of Funds from the U.S. Department of Housing and Urban Development under 24 CFR Part §58 if applicable. The parties further agree that the provision of such funds to the project is conditioned on Orange County's determination to proceed with, modify, or cancel the project based on the results of a subsequent environmental review. NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations contained herein, it is agreed between the parties hereto as follows: 1. CHT agrees to lease dwelling units to first-time homebuyers in the following manner. a. CHT shall lease the housing units, as herein defined, to qualified buyers whose income is up to but no more than 80% of the area median household income by family size, as determined by the U.S. Department of Housing and Urban Development at the time of the sale. c. The period of affordability will be at least 99 years and will be secured by a CHT Ground Lease of the housing units with restrictions to ensure compliance. Further security shall be in the form of a Declaration of Restrictive Covenants (Exhibit A) that will make the County a third party beneficiary of and successor to the long term affordability remedies in the Ground Lease in the event of a failure of or inability of CHT to enforce the long term affordability remedies in the Ground Lease. d. CHT is responsible for soliciting CHT Ground Lease tenants for the housing units. CHT and/or the Ground Lease tenants shall be responsible for securing permanent mortgage financing for the housing units. e. CHT is responsible for verifying the income of the Ground Lease tenants, explaining the land trust program and the CHT Ground Lease to potential tenants and certifying by written documentation signed by the tenants that the program requirements have been fully explained. CHT shall maintain purchaser files as part of its Books and Records as required and for the period of time required by Section 7.c. of this Agreement. 2. At the time of resale of each of the project dwelling units, CHT will convey a housing unit to a qualified homebuyer. Each housing unit will consist of a 99 year Ground Lease (renewable for an additional 99 years) to the project dwelling unit. The Ground Lease, the form of which is Exhibit B hereto, provides for the long term affordability (at least 99 years) of the housing unit and provides remedies to insure the long term affordability of the housing unit. CHT hereby declares and covenants, on behalf of itself and all future owners of the Property, that, during the term of the Declaration of Restrictive Covenants, the County is a third party beneficiary of and successor to each and every remedy intended to insure the long term affordability of the housing unit that is provided for in the Ground Lease and may, in the event of the failure or default of the Lessor in the Ground Lease to insure the long term affordability of the housing unit as provided for in 2 the Ground Lease, exercise all rights and remedies available to the Lessor in the Ground Lease for that purpose. 3. Each housing unit must have a value that does not exceed 95% of the area median purchase price for that type of housing. Value must be established by one of the following methods: i. An appraisal by a qualified appraiser. ii. Tax assessments may be used to establish value, but only if they are current and can be computed at 100% of market value. 4. Amount of HOME funds/Form of Subsidy The County shall make available to the Owner up to One Hundred Thirty-nine Thousand Thirty-Three Dollars ($139,033 pursuant to this Agreement. Funds shall be distributed at the time necessary for payment of eligible costs. The HOME Program subsidy will be provided as a grant to each subject property as a fixed subsidy. 5. Time for Commencement and Completion. The Project must begin within one (1) year of the date of this Agreement. CHT will be responsible for providing status reports to the County quarterly detailing the project activities until project completion. In addition, CHT agrees to furnish to the County a copy of its annual audit performed by a certified public accountant within 90 days of the end of each fiscal year until the Project is complete. The Project completion date is the closing date of the Ground Lease by a qualified buyer of the last of the Project dwelling units. 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 (Section 7.a.) 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 the housing units for affordability for the period of affordability - ninety-nine (99) years and, if renewed, an additional ninety-nine years. Final contract completion date shall be the end date of the last affordability period. 6. Affordability Requirement. Each housing unit must remain affordable for a period of ninety-nine years. CHT retains full responsibility for compliance with the affordability requirement for assisted housing units. CHT shall assure compliance with affordability of assisted housing units by having recorded, no later than the time it leases the first of the housing units, a "Declaration of Restrictive Covenants" (Exhibit A) on the Property. To further assure compliance with the affordability requirements the Ground Lease shall be made an attachment to the Declaration of Restrictive Covenants and recorded therewith. All other security documents should be recorded thereafter. 3 This Declaration shall constitute and remain a first lien on the Property during the period of affordability, unless otherwise provided by law or unless otherwise agreed by County. It is further the responsibility of CHT to rerecord the Declaration of Restrictive Covenants no later than one day before the expiration of 30 years of the date of its lease of each of the housing units in the event the homeowner leasing the housing unit from CHT is still the owner of the housing unit at the time of the rerecording. County retains the right to periodically and every 30 years after the first recording of the Declaration of Restrictive Covenants to register, with the Register of Deeds of Orange County, a notice of preservation of the restrictive covenants on the Property as provided in North Carolina General Statute § 4713-4 or any comparable preservation law in effect at the time of the recording of the notice of preservation. It is the intent of this Section of this Agreement that the 99 year affordability requirement contained herein be accomplished and that CHT and the County will do what is necessary to ensure that the same is not extinguished by the Real Property Marketable Title Act or any comparable law purporting to extinguish, by the passage of time, non possessory interests in real property. CHT and the County agree to do what each must do to accomplish the 99 year affordability requirement. 7. Resale Provisions. CHT shall assure compliance with long term affordability of assisted housing units as provided for in the Ground Lease, which Ground Lease shall, as to resale provisions, remain in substantially the form of the current version of the Ground Lease, a copy of which is an exhibit to the Declaration of Restrictive Covenants, for at least 99 years. 8. Miscellaneous Provisions. a. Termination of Agreement. The full benefit of the Project will be realized only after the completion of the affordability periods for all dwelling units purchased under this Agreement. It is the County's intention that the full public benefit of the Project shall be completed under the auspices of CHT for the assisted housing units as follows: i. 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 CHT will retain responsibility for requirements for any dwelling units assisted and County will make no further payments to CHT. ii. In the event that CHT, prior to the contract completion date, is unable to continue to function due to, but, not limited to, dissolution or insolvency of the organization, its filing a petition for bankruptcy or similar proceedings, or is adjudged bankrupt or fails to comply or perform with provisions of this agreement, then CHT shall, upon the County's request, convey to the County the Property assisted with the HOME funds. Conveyance shall be at the sole discretion of County and on a dwelling unit by dwelling unit basis. 4 Conveyance shall be on the terms set forth herein: Conveyance shall occur within thirty (30) days of County and CHT's agreement of CHT's inability to continue as a viable organization. CHT shall convey the Property to the County by general warranty deed, free and clear of all liens and encumbrances of record except those which create a beneficial interest in County (Declaration of Restrictive Covenants) and any other agreed to by County in writing. b. Default, Remedies. This Agreement may be terminated by anon-defaulting party 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. 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. 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. 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. Upon reasonable advance notice, County or its authorized representatives may from time to time inspect, audit, and make copies of any of CHT' records that relate to this contract. If any audit by 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 County the amount of such excess. If the excess is greater than 1 % of the contract amount, CHT shall also reimburse County its reasonable costs incurred in performing the audit. ii. CHT shall maintain files of all purchasers residing in assisted units. Documentation shall verify eligibility for federal assisted housing at the initial occupancy. Information maintained shall include: tenant income level; name of family members; ethnic data; family type - e.g. female head of household and disability status. iii. CHT shall maintain records verifying the affordability of the dwelling units. d. 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: 5 r 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 P.O. Box 307 Carrboro, NC 27510 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. e. No Assignment. No transfer or assignment of the interest of CHT in this Project shall occur without the prior written consent of the County; neither may CHT assign this Agreement without the prior written consent of County. f. Conflict of Interest. CHT agrees to abide by the provisions of 24 CFR 570.611 with respect to conflicts of interest, and covenants that it presently has no financial interest and shall acquire no financial interest, direct or indirect, that would conflict in any manner or degree with the performance of services required under this Agreement. CHT further covenants that in performance of this Agreement no person having such a financial interest shall be employed or retained by CHT hereunder. These conflicts of interest provisions apply to any person who is an employee, agent, consultant, or elected official or appointed official of the County, or any designated public agencies or subrecipients that are receiving funds under the HOME Investment Partnership Program. 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. Indemnification. To the extent legally possible, CHT shall indemnify and hold 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 County, CHT shall, upon County's tender, defend the same at CHT' sole cost and expense, promptly satisfy any judgment adverse to County or to County and CHT jointly, and reimburse County for any loss, cost, damage, or expense, including attorney fees suffered or incurred by County. i. 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, 6 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 County's approval of a subcontractor, CHT shall remain obligated for full performance of this contract and County shall incur no obligation to any subcontractor CHT shall indemnify, defend, and hold County harmless from all claims of its contractors. j. 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 or CHT under this Agreement, shall be deemed or construed to create any relationship of joint venture, partnership or agency between the parties. k. 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. 1. 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. m. 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. n. 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. o. Headings. Headings are for convenience only and shall not be used to interpret or construe its provision. 7 ,; p. 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. q. 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. r. 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, to purchase and develop the Property. s. Publicity; Signage. CHT agrees to provide such publicity with respect to the County's participation in the Project, as the County shall reasonably require. Any Signage at the dwelling unit shall acknowledge the County's role and contribution. t. 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. u. 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. v. Performance of Government Functions. Notwithstanding anything in this Agreement which maybe 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. [SIGNATURES APPEAR ON FOLLOWING PAGE] 8 IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have set their hands on the day and year first above written. ATTEST: ~' ~av ORANGE COUNTY, NORTH CAROLINA Frank W. Tifton, Jr unty Manager Donna Baker ~' Clerk to the Board of Commissioners NORTH CAROLINA ORANGE COUNTY I, l~a v~ d~ ~ h~ , a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of said County, the foregoing instrument was signed in its name by Frank W. Clifton, Jr., the County Manager, and attested by him as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal, this the /S~' day of ~~~ 201 ~ . OFFICIAL SEAL ~~ ` Notary Public, North Carolina .~_,:/ ORANGE COUNTY Notary Public DAVID HUNT ,My Opmmissbn Expires My commis es: w.e ~. 2 ~ ~ ~- App o ed a to form and legality Ann e M. Moore, Staff Attorney This document has been pre-audited in accordance with the N.C. Local Government and Fiscal Control Act. C~(- ~ Clarence Grier, Financial Services Director COMMUNITY HOME TRUST I/~`~ President 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 ~~ ~ wit ~ whom I am personally acquainted, who, being by me duly sworn, says that he is V j~t~~ of Community Home Trust, Inc, a North Carolina corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed by him on behalf of the corporation. Witness my hand and notarial seal, this t ~~1 ay o t~~~~ 20L. Notary P blic My commission expires: ~l `,,~~~QygTA! `F s~ ~i v ~~~% ~tpT.g9~ ~~~. p '~suG V .,~~~G~ Cpu'N```````~~ %9ti ..,,~~..tt?.` 10 Exhibit A Prepared by and return to: Annette Moore, Orange County Attorney's Office: P.O. Box 8181; Hillsborough, NC 27278 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (Declaration), dated by Community Home Trust, Inc, and its successors and assigns (Owner), is given as a condition precedent to the award of Federal HOME Investment Partnership Program funds by Orange County, North Carolina, a body politic and corporate, a political subdivision of the State of North Carolina, (hereafter "the County") together with any successor to its rights, duties, and obligations. RECITALS: WHEREAS, the Orange County HOME Consortium has designated $139,033 in FY 2009 HOME funds for the purpose of homeownership assistance for first-time homebuyers of Land Trust homes by reducing the purchase price to meet buyers' affordability needs hereafter referred to as the "Project" or the "project dwelling units"; and WHEREAS, the County is the lead entity of the Orange HOME Consortium, so designated in an agreement dated July 1, 2008 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.) et. ~.) (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, the Community Home Trust (CHT) formerly known as Orange Community Housing and Land Trust (OCHLT) is a designated Community Housing Development Corporation (CHDO) as defined in 24 CCR Part 92, Subpart A, Section 92.2 interested in serving as sponsor, developer, and/or advocate for potential first-time homebuyers; and 11 WHEREAS, afirst-time homebuyer for the purposes of this program is defined as any household earning up to 80% of HUD area median income that has not owned a home within the past three (3) years including households living in manufactured housing not permanently affixed to a foundation, or owner-occupants of homes not feasible for rehabilitation; and WHEREAS, CHT intends to make them available for lease, as described herein, to families earning up to 80% of HUD area median income as described in the FY 2009 OCHLT HOME Program Application which Application is incorporated by reference into this Agreement. The FY 2009 HOME Program Application is on file in the office of the Orange County Department of Housing and Community Development. WHEREAS, as particularly described herein, the Property will be held by CHT, ensuring affordability of the project dwelling unit for at least 99 years; and WHEREAS, CHT has signed this Declaration agreeing to the terms of this Declaration, its obligations pursuant to this Declaration and agreeing to the terms of the Development Agreement between the County and CHT of even date; and NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations contained herein, it is agreed between the parties hereto as follows: SECTION 1 REPRESENTATIONS, COVENANTS AND WARRANTIES OF OWNER CHT hereby represents, covenants and warrants as follows: a. Subject to the requirements of the GRANT AGREEMENT, an unsigned copy of which is Exhibit B hereto, and this Declaration, CHT may sell, transfer, or exchange the Property to a non-profit fund, foundation, or corporation of like purpose which is organized and operated exclusively for charitable and educational purposes and which has established its tax exempt status under Section 501(c)(3) of the Internal Revenue Code, or to the County, but Owner shall notify in writing and obtain the agreement of any buyer or successor or other person acquiring the Property or any interest therein, that such acquisition is subject to the requirements of this Declaration and to the requirements of the GRANT AGREEMENT and the Federal HOME Investment Partnership Program. CHT agrees that County may void any sale, transfer, or exchange of the Property or any portion of the Property if the buyer or successor or other person fails to assume in writing the requirements of this Declaration and the requirements of the GRANT AGREEMENT. b. Contemporaneously with the execution, delivery and recording of this Declaration, CHT will acquire good and marketable title to the Property, free and clear of any lien or encumbrance (except encumbrances created pursuant to this Declaration or other encumbrances permitted by Orange County). c. CHT warrants that it will not accept title to the Property subject to and will not execute any other declaration with provisions contradictory to, or in opposition to, the provisions hereof, 12 and that in any event, the requirements of this Declaration are paramount and controlling as to the rights and obligations herein set forth and supersede any other requirements in conflict herewith. SECTION 2 TERM OF DECLARATION a. This Declaration (and the terms of affordability specified herein) applies to the Property immediately upon the recordation of this Declaration. CHT and all subsequent owners of the Property shall comply with all covenants herein. This Declaration shall terminate ninety-nine years after the Project completion date as specified in the GRANT AGREEMENT. SECTION 3 RECORDING AND FILING; COVENANTS TO RUN WITH THE LAND a. CHT shall cause this declaration and all amendments hereto to be recorded and filed in the Office of the Register of Deeds of Orange County upon its execution. CHT shall pay all fees and charges incurred in connection therewith. b. CHT intends, declares and covenants, on behalf of itself and all future owners of the Property during the term of this Declaration, that this Declaration and the covenants and restrictions set forth in this Declaration regulating and restricting the use, occupancy and transfer of the Property (1) shall be and are covenants running with the land, encumbering the Property for the term of this Declaration, binding upon all present and future owners of the Property; (2) are not personal covenants of Declarant; and (3) shall bind all present and future owners (and the benefits shall inure to the County and any prospective owner of the Property) and its respective successors and assigns during the term of this Declaration. For the term of this Declaration, each and every contract, lease, deed or other instrument hereafter executed conveying the Property or portion thereof shall expressly provide that such conveyance is subject to this Declaration, provided, however, the covenants contained herein shall survive and be effective regardless of whether such contract, lease, deed, or other instrument hereafter executed conveying the Property or portion thereof provides that such conveyance is subject to this Declaration. It is further the responsibility of CHT to rerecord this Declaration periodically and no less often than one day less than every 30 years from the date hereof for the purpose of renewing the rights of first refusal in the Property or portion thereof including any leasehold interest in the Property or portion thereof. The County retains the right to, periodically and every 30 years after the first recording of the Ground Lease created in Exhibit C hereof, register, with the Register of Deeds of Orange County, a notice of preservation of the Restrictive Covenants on the Property as provided in North Carolina General Statute § 47B-4 or any comparable preservation law in effect at the time of the recording of the notice of preservation. It is the intent of this Section 3 of this Declaration that the 99 year duration of this Declaration of Restrictive Covenants be accomplished and that any future owner of the Property, CHT and Orange County will do what is necessary to ensure that the same is not extinguished by N.C. Gen. Stat. § 41-29 or any comparable law purporting to extinguish, by the passage of time, preemptive rights in the Property and by the Real Property Marketable Title Act or any comparable law purporting to extinguish, by the passage of time, non possessory interests in real property. Any future owner of the Property, CHT and Orange County will to do 13 what each must do to accomplish the 99 year duration of this Declaration of Restrictive Covenants. SECTION 4 ENFORCEMENT OF AFFORDABLE HOUSING REQUIREMENTS a. At the time of resale of the project dwelling unit, CHT will convey a housing unit to qualified homebuyer. Each housing unit will consist of a 99 year Ground Lease (renewable for an additiona199 years) to the project dwelling unit. The Ground Lease, the form of which is Exhibit C hereto, provides for the long term affordability (at least 99 years) of the housing unit and provides remedies to insure the long term affordability of the housing unit. CHT hereby declares and covenants, on behalf of itself and all future owners of the Property, that, during the term of this Declaration, the County is a third party beneficiary of and successor to each and every remedy intended to insure the long term affordability of the housing unit that is provided for in the Ground Lease and may, in the event of the failure or default of the Lessor in the Ground Lease to insure the long term affordability of the housing unit as provided for in the Ground Lease, exercise all rights and remedies available to the Lessor in the Ground Lease for that purpose. b. CHT covenants that it will not knowingly take or permit any action that would result in a violation of the affordability requirements of the GRANT AGREEMENT.. Orange County, together with any future owner of the Property may execute and record any amendment or modification of this Declaration necessary to insure the successful completion of the Project and the long term affordability (at least 99 years) of the housing units on the Property and such amendment or modification shall, to the extent permitted by law, either relate back to the date of recording of this Declaration or not as necessary to carry out the intent of this Declaration, and be binding on third parties granted rights under this Declaration. CHT expressly covenants and agrees to rerecord this Declaration periodically and no less often than one day less than every 30 years from the date hereof for the purpose of renewing the Lessor's option to purchase and right of first refusal, that are contained in the Exhibit C Ground Lease, in the Property or portion thereof including any leasehold interest in the Property or portion thereof. c. CHT acknowledges that the primary purpose for requiring compliance by CHT with restrictions provided in this Declaration is to assure compliance with the long term affordability requirements of the HOME INVESTMENT PARTNERSHIP PROGRAM, AND BY REASON THEREOF, CHT, IN CONSIDERATION FOR RECEIVING HOME INVESTMENT PARTNERSHIP PROGRAM FUNDS FOR THE PROPERTY, HEREBY AGREES AND CONSENTS THAT THE COUNTY SHALL BE ENTITLED, FOR ANY BREACH OF THE PROVISIONS HEREIN, AND IN ADDITION TO ALL OTHER REMEDIES PROVIDED BY LAW OR IN EQUITY, TO ENFORCE BY SPECIFIC PERFORMANCE CHT'S OBLIGATIONS UNDER THIS DECLARATION IN A STATE COURT OF COMPETENT JURISDICTION, WITH VENUE IN ORANGE COUNTY. CHT hereby further specifically acknowledges that the beneficiaries of CHT's obligations hereunder cannot be adequately compensated by monetary damages in the event of any default hereunder. If legal costs are incurred by the County, such legal costs, including attorney fees and court costs (including costs of appeal), are the responsibility of, and maybe recovered from the CHT. 14 SECTION 5 MISCELLANEOUS a. Severability. The invalidity of any clause, part, or provision of this Declaration shall not affect the validity of the remaining portions thereof. b. 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 herein 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 Declarant: To CHT: Community Home Trust P.O. Box 307 Carrboro, NC 27510 ATTN: Executive Director c. Governing Law. This Declaration shall be governed by the laws of the State of North Carolina and, where applicable, the laws of the United States of America. IN WITNESS WHEREOF, CHT has caused this Declaration to be signed by its duly authorized representative, on the day and year first above written. [SIGNATURES APPEAR ON FOLLOWING PAGE] 15 COMMUNITY HOME TRUST By: G~'~~f.~~ President NORTH CAROLINA ORANGE COUNTY I, ~a-~i ~,t a„ ~j • C ~~S ,Notary Public in and for the above named County and State, do hereby certify that on this day personally appeared before me' ~ u~l~n wi whom I am personally acquainted, who, being by me duly sworn, says that he is - e/lt of Community Home Trust, Inc., a North Carolina corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed by him on behalf of the corporation. /~ Witness my hand and notarial seal, this the day of `--~ U fie-- , 20 L~ Notary Public My commission expires: ~o Jl ~ ~ao l ~ PATRICIA B CATES NOTARY PUBLIC ALAMANCE COUNTY, NC My Commission Expires 10-12-2010 EXHIBIT A Property Description ~` EXHIBIT B Grant Agreement I" EXHIBIT C Ground Lease Agreement