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HomeMy WebLinkAbout2005 S Housing - Orange Co 2005-2006 Home Prog -The Chrysalis Foundation for Mental Health, Inc~- ~` V NORTH CAROLINA ORANGE COUNTY DEVELOPMENT AGREEMENT This is an AGREEMENT between ORANGE COUNTY, a body politic and corporate, a political subdivision of the State of North Carolina, (hereinafter referred to as the "County") and The Chrysalis Foundation for Mental Health, Inc. a North Carolina non-profit corporation (hereinafter referred to as "Chrysalis"). The effective date of this Agreement is ~~-t~-~~ WITNESSTH WHEREAS, the Orange County HOME Consortium has designated $100,000 in FY 2005 HOME funds to assist in the acquisition of existing housing for lease to persons with disabilities; and WHEREAS, the County is the lead entity of the Orange County HOME Consortium, so designated in an agreement dated July 1, 2005 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. seq.) (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, Chrysalis intends to purchase two condominium units. The condominium units are Units 203 and 213, Building D, Ashley Forest in Chapel Hill, NC (herein after referred to as "the Project dwelling units" or "the Project"). The Project dwelling units are more particularly described in EXHIBIT A attached hereto and made a part of this Agreement (hereinafter referred to as "the Property"); and WHEREAS, Chrysalis agrees to utilize HOME funds provided for the purpose of acquiring the Property as described in its HOME Program application dated February 28, 2005 which are hereby incorporated into this Agreement and hereinafter referred to as "the Project"; and WHEREAS, Chrysalis intends to make the Project dwelling units available for lease to families earning up to 50% of HUD area median income; and WHEREAS, notwithstanding any provision of this Agreement, the County and Chrysalis hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or 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. a. Chrysalis shall acquire the Property including the Project dwelling units and ensure that the units meet the property standards in 24 CFR 92.251 and the lead-based paint requirements in 92.355 at the time of project completion. A Section 8 Housing Quality Standards (HQS) inspection must be conducted prior to purchase to ensure compliance. Any repair work necessary must be completed in accordance with applicable building and zoning ordinances. Chrysalis agrees to lease the Project dwelling units to families whose income does not exceed 50% 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. Monthly rents must not exceed the HOME Program Rents in effect at the time of occupancy. Residential leases will not exceed one year in term. b. Financial assistance in the amount of $100,000 in Orange County HOME Investment Partnership Program will be provided in the form of a deferred loan with aninety-nine (99) year loan term. A Deed of Trust and Promissory Note will secure the loan funds. This Deed of Trust and Promissory Note shall constitute a lien on the Property subordinate only to the Declaration of Restrictive Covenants described in Section 2 of this Agreement. The Project dwelling units must remain affordable for a period of 99 years. This 99 year affordability requirement will be secured by a Deed of Trust, Promissory Note, and Declaration of Restrictive Covenants that will incorporate a right of first refusal that may be exercised by the County. Chrysalis may request in writing the disbursement of funds under this Agreement for actual project costs. Any program income arising from this project must be expended prior to requesting HOME funds. After acquisition of the property, any program income must be repaid to the County each year. c. The Property shall be acquired and the Project dwelling units rehabilitated and occupied by June 30, 2007. In the event that Chrysalis is unable to complete its obligations to acquire, rehabilitate, and occupy the Project dwelling units within this time or by extensions approved by the County under the terms of this Agreement, Chrysalis will be required to repay the full amount of the County's outstanding loan as provided in the loan documents. 2 d. Each Project dwelling unit must have a value that does not exceed 100% of its appraised value. An independent, qualified appraiser must conduct the appraisal. e. An annual rental operations budget must be submitted to the County each year at least sixty days prior to the July 1 beginning date for the fiscal year. f. Chrysalis is responsible for verifying the income of prospective tenants and maintaining eligibility data. Chrysalis shall maintain tenant files as part of its Books and Records as required and for the period of time required by Section 4f. of this Agreement. Chrysalis must provide the County an initial occupancy report verifying the income eligibility of all tenants at the time of initial lease-up. Chrysalis must furnish the County with an annual report on the Project dwelling units by July 31 of each year thereafter certifying that all tenants earn less than 50% 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. 2. Affordability Requirement. Each of the Project dwelling units must remain affordable for a period of ninety-nine years. Chrysalis retains full responsibility for compliance with the affordability requirement for each of the Project dwelling units, unless affordability restrictions are terminated due to the sale of the Property to anon-qualified buyer in which event the Resale Provisions of Section 3 of this Agreement pertain. Chrysalis shall assure compliance with affordability of each of the Project dwelling units by having recorded a "Declaration of Restrictive Covenants" (EXHIBIT B) on the Property. This Declaration shall constitute and remain a first lien on the Property during the period of affordability. It is further the responsibility of Chrysalis to rerecord the Declaration of Restrictive Covenants 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. Orange County retains the right to, periodically and every 30 years after the first recording of the Declaration of Restrictive Covenants on the Property 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 § 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 Agreement that the 99 year duration of this Declaration of Restrictive Covenants be accomplished and that any future owner of the Property, Chrysalis, 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, Chrysalis and Orange County agree to do what each must do to accomplish the 99-year duration of this Declaration of Restrictive Covenants. 3 3. Resale Provisions. Chrysalis shall assure compliance with affordability of each of the Project dwelling units through the Declaration of Restrictive Covenants. The Declaration of Restrictive Covenants shall include at least the following elements in their resale provisions for the Improvements: 3.1 If Chrysalis no longer uses the Property as rental property or is unable to continue ownership, then the Chrysalis must sell, transfer, or otherwise dispose of its interest in the Property only to an agency with similar interest in affordable housing and serve families with incomes not exceeding 50% 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 transfer. The non-profit fund, foundation, or corporation of like purposes must have established its tax-exempt status under Section 501 (c)(3) of the Internal Revenue Code. 3.2 However, if the Property is sold, transferred, or otherwise disposed of to other than an agency with similar interest in affordable housing during the term of affordability, the Right of First Refusal provision of the County's Long-Term Housing Affordability Policy must be followed and the net sales proceeds (sales price less: (1) selling cost, (2) the unpaid principal amount of the original first mortgage and (3) the unpaid principal amount of the initial County contribution and any other initial government contribution secured by a deferred payment promissory note and deed of trust) or "equity" will be divided 50/50 by the seller of the Property and the County. 3.3 The resale provision shall remain in effect for the full affordability period - 99 years. 4. Miscellaneous Provisions. a. Uniform Administrative Requirements. Chrysalis must comply with the applicable uniform administrative requirements of 24 CFR §92.505. b. Other Program Requirements. Chrysalis must carry out each activity in compliance with all Federal laws and regulations described in 24 CFR, Part 92, subpart H except that the subrecipient does not assume the responsibilities for environmental review or intergovernmental review. c. Affirmative Marketing. If HOME funds will be used for housing containing five (5) or more assisted units, Chrysalis must prepare and submit an Affirmative Marketing Plan to the County. d. Termination of Agreement. The full benefit of the Project will be realized only after the completion of the affordability periods for all Project dwelling units. It is the County's intention that the full public benefit of the Project shall be completed under the auspices of 4 Chrysalis for the assisted units as follows: i. In the event that Chrysalis is unable to proceed with any aspect of the Project in a timely manner, and County and Chrysalis determine that reasonable extension(s) for completion will not remedy the situation, then Chrysalis will retain responsibility for requirements for any dwelling units assisted and County will make no further payments to Chrysalis. ii. In the event that Chrysalis, 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 Chrysalis shall, upon the County's request, convey to the County the Property assisted with HOME funds. Conveyance shall be at the sole discretion of County and on a Project dwelling unit by Project dwelling unit basis. Conveyance shall be on the terms set forth herein: Conveyance shall occur within thirty (30) days of County and Chrysalis' agreement of Chrysalis inability to continue as a viable organization. Chrysalis 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 Deed of Trust). e. Default, Remedies. This Agreement maybe 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. f. Books and Records. Chrysalis 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. Chrysalis shall ensure access to records and financial statements, as necessary, to provide effective monitoring and evaluation of project performance. Additionally, Chrysalis 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 Chrysalis records that relate to this contract. If any audit by County discloses that payments to Chrysalis were in excess of the amount to which Chrysalis was entitled under this contract, Chrysalis shall promptly pay to County the amount of such excess. If the excess is greater than 1 % of the contract 5 amount, Chrysalis shall also reimburse County its reasonable costs incurred in performing the audit. ii. Chrysalis shall maintain files of all tenants, regardless of length of occupancy, residing in assisted units. Documentation shall verify eligibility for federal assisted housing at the point of initial tenancy and every subsequent year thereafter for the period of affordability. Information maintained shall include: tenant income level; name of family members; ethnic data; family type - e.g. female head of household; disability status; and monthly rent. iii. Chrysalis shall maintain records verifying the affordability of the dwelling units. g. 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 Chrysalis: Chrysalis Foundation for Mental Health, Inc. 101 East Weaver Street, Suite G-7 Carrboro, NC 27510 ATTN: Executive Director Either the County or Chrysalis may change the person or address to which any future Notice shall be given as herein provided. h. No Assignment. No transfer or assignment of the interest of Chrysalis in this Agreement shall occur without the prior written consent of the County; neither may Chrysalis assign this Agreement without the prior written consent of County. i. Conflict of Interest. Chrysalis 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 any financial interest, direct or indirect, that would conflict in any manner or degree with the performance of services required under this Agreement. Chrysalis further covenants that in performance of this Agreement no person having such a financial interest shall be employed or retained by Chrysalis hereunder. These conflicts of interest provisions apply to any person who is an employee, agent, consultant, or elected official or 6 appointed .official of the County, or any designated public agencies or subrecipients that are receiving funds under the County HOME Investment Partnership Program. j. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. k. Indemnification. To the extent legally possible, Chrysalis 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 Chrysalis, its employees, agents, officers, and contractors in connection with this contract. In the event any such action or claim is brought against County, Chrysalis shall, upon County's tender, defend the same at Chrysalis' sole cost and expense, promptly satisfy any judgment adverse to County or to County and Chrysalis jointly, and reimburse County for any loss, cost, damage, or expense, including attorney fees suffered or incurred by County. 1. Subcontracting. Chrysalis shall not subcontract work under this Agreement, in whole or in part, without the County's prior written approval. Chrysalis 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 Chrysalis specified in this contract. Notwithstanding County's approval of a subcontractor, Chrysalis shall remain obligated for full performance of this contract and County shall incur no obligation to any subcontractor Chrysalis shall indemnify, defend, and hold County harmless from all claims of its contractors. m. No Joint Venture or Agency. The County and Chrysalis each agree and acknowledge that nothing contained herein or otherwise, including, without limitation, any act of the County or Chrysalis under this Agreement, shall be deemed or construed to create any relationship of joint venture, partnership or agency between the parties. n. 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 Chrysalis 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 Chrysalis be a waiver by the County of its rights and remedies with respect to that or any other breach. o. 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. p. 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. 7 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 Chrysalis 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 Chrysalis 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. q. Equal Opportunity. Chrysalis 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. r. Headings. Headings are for convenience only and shall not be used to interpret or construe its provision. s. 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. t. 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. u. 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, Chrysalis 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. v. Publicity; Signage. Chrysalis 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. w. 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. x. No Third Party Rights. The parties hereto covenant and agree that nothing contained in this Agreement or any act by the County or Chrysalis shall be deemed or construed 8 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, Chrysalis or any of their respective officers, agents or employees by any third party. y. 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. z. Duration of Agreement. This Agreement shall be effective on the date of execution and shall remain in effect during the period of affordability required by the Act under 24 CFR Part 92. 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. Appro d as to form and legality eo fr 1 1, County Attorney .,._ ~.:- This document has--been preaudited in Chairman of Board of Directors ATTEST: Elaine J. Foster ,Secretary ,NGE COUNTY, NORTH CAROLINA ~~ ~ Blackmon, County Manager accordance with the N.C. Local Government and Fiscal Cont\Q~~~tll//~~~ _\~~~. ~!~ ~ y fy /~~~~-~ Kenneth Chavious, Finance Director y ~+ ~ ~ / ~/~ The Chrysalis Foundation for Mental Health, ~ ~ ~ = Inc. (SEAL ~ t ~^'1 °~ w~~1 iii ~.• ``~~ C.~ ~ `~~ ;;,( ~j~~/,`,flll~~~~\\ Paul ,_.indsaY 9 Clerk to the Board of Commissioners EXHIBIT A PROPERTY DESCRIPTION BEING KNOWN AND DESIGNATED AS UNITS NUMBER 203 AND 213, BUILDING D, AS SHOWN ON A PLAT OR PLATS ENTITLED "ASHLEY FOREST", RECORDED IN CONDOMINIUM AND UNIT OWNERSHIl' BOOK 40, AT PAGES 78 THROUGH SO, IN THE OFFICE OF THE REGISTER OF DEEDS OF ORANGE COUNTY. NORTH CAROLINA, REFERENCE TO WHICH IS HEREBY MADE FOR A MORE PARTICULAR DESCRIPTION; AND TOGETHER WITH AN UNDIVIDED 1.61290323% FEE SIMPLE INTEREST PER UNIT IN AND TO THE COMMON AREA SHOWN ON THE REFERENCE RECORDED PLAT. TOGETHER WITH ALL RIGHTS AND EASEMENTS APPURTENANT TO EACH OF THE AFORESAID UNITS AS SPECIFICALLY ENUMERATED IN THE "DECLARATION OF CONDOMINIUM", ISSUED BY ASSOCIATED C.H. DEVELOPERS RECORDED IN THE OFFICE OF THE REGISTER OF DEEDS OF ORANGE COUNTY IN BOOK 492, PAGE 450, ET SEQ., AND PURSUANT THERETO, MEMBERSHIP IN ASHLEY FOREST OWNER'S ASSOCIATION INC., A NORTH CAROLINA NON-PROFIT COFPORATION RECORDED WITH THE DECLARATION OF CONDOMINIUM AS EXHIBIT "D". TOGETHER WITH ALL RIGHTS IN AND TO THE LIMITED COMMON AREAS AND FACILITIES, IF ANY, APPURTENANT TO EACH OF THE AFORESAID UNITS; AND TOGETHER WITH ANON-EXCLUSIVE EASEMENT FOR INGRESS, EGRESS AND REGRESS OVER THE ROADWAYS AS SHOWN ON THE CONDOMINIUM PLATS ABOVE REFERRED TO; AND SUBJECT TO THE SAID DECLARATION OF CONDOMINIUM, AND THE EXHIBITS ANNEXED THERETO, WHICH ARE INCORPORATED HEREIN A;: IF SET FORTH IN THEIR ENTIRETY, AND BY WAY OF ILLUSTRATION AND NOT BY WAY OF LIMITATION, PROVIDE FOR: (1) 1.61290323% AS THE PERCENTAGE OF' UNDNIDED FEE SIMPLE INTEREST APPERTAINING TO EACH OF THE AFORESAID UNITS IN THE COMMON AREAS AND FACILITIES; (2) USE AND RESTRICTION OF USE OF EACH UNIT FOR RESIDENTIAL AND LODGING ACCOMMODATION PURPOSES, AND OTHER USES REASONABLY INCIDENTAL THERETO; (3) PROPERTY RIGHTS OF PURCHASER AS A UNIT OWNERS, AND ANY GUESTS OR INVITEES OF THE PURCHASER, IN AND TO THE COMMON AREA; (4) OBLIGATION AND RESPONSIBILITY OF THE PURCHASER FOR REGULAR MONTHLY ASSESSMENTS AND SPECIAL ASSESSMENTS AND THE EFFECT OF NON-PAYMENT THEREOF AS SET FORTH IN SAID DECLARATION AND BY-LAWS ANNEXED THERETO; (5) LIMITATIONS UPON USE OF COM20N AREAS; (6) OBLIGATIONS OF PURCHASER AND THE ASSOCIATION FOR MAINTENANCE; (7) RESTRICTIONS UPON USE OF THE UNIT OWNERSHIP IN REAL PROPERTY CONVEYED HEREBY. EXHIBIT B Prepared by: Geoffrey E. Gledhill, Attorney at Law, P.O. Drawer 1529; Hillsborough, NC 27278 After recording return to: Coleman, Gledhill & Hargrave, P.O. Drawer 1529; Hillsborough, NC 27278 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTNE COVENANTS (Declaration), dated by Chrysalis Foundation for Mental Health, Inc. for itself and its successors and assigns (Owner), is given as a condition precedent to the award of Orange County HOME Investment Partnership Program funds. RECITALS: WHEREAS, the Orange County HOME Consortium has designated $100,000 in FY 2005 HOME funds to assist in the acquisition of existing housing for lease to persons with disabilities; and WHEREAS, the County is the lead entity of the Orange County HOME Consortium, so designated in an agreement dated July 1, 2005 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. seq.) (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, Chrysalis intends to purchase two condominium units. The condominium units are Units 203 and 213, Building D, Ashley Forest in Chapel Hill, NC (herein after referred to as "the Project dwelling units" or "the Project"). The Project dwelling units are more particularly described in EXHIBIT A attached hereto and made a part of this Agreement (hereinafter referred to as "the Property"); and WHEREAS, Chrysalis agrees to utilize HOME funds provided for the purpose of acquiring the Property as described in its HOME Program application dated February 28, 2005 which are hereby incorporated into this Agreement and hereinafter referred to as "the Project"; and WHEREAS, Chrysalis intends to make the Project dwelling units available for lease to families earning up to 50% of HUD area median income; and WHEREAS, notwithstanding any provision of this Agreement, the County and Chrysalis hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or 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 promises and covenants hereinafter set forth and of other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Owner intends, declares, and covenants that the regulatory and restrictive covenants set forth herein governing the use, occupancy, and transfer of the Property shall be and are covenants pertaining to the Property and running with the land for the term stated herein and are binding upon all subsequent owners of the Property and for such term, except as specifically provided herein, and are not merely personal covenants of Owner. SECTION 1 REPRESENTATIONS, COVENANTS AND WARRANTIES OF OWNER Owner hereby represents, covenants and warrants as follows: a. It is contemplated that the Property and the Project will be used, during the ninety-nine years after Project Completion (defined as the last of the following events: the Property is acquired, rehabilitated, if necessary, and the last of the two Project dwelling units occupied by aloes-income family), for rental housing to families earning up to 50% of HUD area median income. In the event Owner sells, transfers or exchanges the Property or any portion of the Property, the following shall pertain: 1. Subject to the requirements of the DEVELOPMENT AGREEMENT (Exhibit B hereto), the Orange County HOME Investment Partnership Program and this Declaration, Owner may sell, transfer, or exchange the Property to anon-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 Orange County; provided, however, Owner shall obtain the written agreement, in form satisfactory to Orange County, of any buyer or successor or other person acquiring the Declaration of Restrictive Covenants Page 2 Property or any interest therein, that such acquisition is subject to the requirements of this Declaration and to the requirements of the DEVELOPMENT AGREEMENT and the Orange County HOME Investment Partnership Program . Owner agrees that Orange County may void any sale, transfer, or exchange of the Property or any portion of this Property if the buyer or successor or other person fails to assume in writing the requirements of this Declaration and the requirements of the DEVELOPMENT AGREEMENT and the Orange County HOME Investment Partnership Program. 2. Any assignment, sale, transfer, conveyance or other disposition of the Property or any part of the Property other than as described in subparagraph 1 above, whether voluntary or involuntary or by operation of law shall be subject to the provisions of SECTION 4 of this Declaration. b. Owner will, at the time of execution, delivery and recording of this Declaration, have good and marketable title to the Property, free and clear of any lien or encumbrance (except encumbrances created pursuant to this Declaration or other permitted encumbrances which are shown on Exhibit C hereto). c. Owner warrants that it has not and will not execute any other declaration with provisions contradictory to, or in opposition to, the provisions hereof, 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, apply to the Property immediately upon recordation, and Owner shall comply with all restrictive covenants herein. This declaration shall terminate ninety-nine years after Project Completion, unless Orange County HOME Investment Partnership Program affordability restrictions are terminated due to the sale of the Property to anon-qualified buyer as provided herein. SECTION 3 RECORDING AND FILING; COVENANTS TO RUN WITH THE LAND a. Upon execution of this Declaration by Owner, Owner shall cause this declaration and all amendments hereto to be recorded and filed in the Office of the Register of Deeds of Orange County. b. Owner intends, declares and covenants, on behalf of itself and all future Owners of the Project 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 .Owner's successors in title and all subsequent Owners of the Property; (2) are not merely personal covenants of Owner; and (3) shall bind Owner (and the benefits shall inure to Orange County and any past, present or prospective owner Declaration of Restrictive Covenants Page 3 of the Property) and its respective successors and assigns during the term of this Declaration. Owner hereby agrees that any and all requirements or privileges of estate are intended to be satisfied, or in the alternate, that an equitable servitude has been created to insure that these restrictions run with the Property. For the term of this Declaration, each and every contract, 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 contracts, 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 Owner to rerecord the Declaration of Restrictive Covenants 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. Orange County retains the right to, periodically and every 30 years after the first recording of the Declaration of Restrictive Covenants on the Property 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 § 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 that the 99 year duration of this Declaration of Restrictive Covenants be accomplished and that any future owner of the Property, OPC Foundation, 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, OPC Foundation and Orange County agree to do what each must do to accomplish the 99-year duration of this Declaration of Restrictive Covenants. SECTION 4 ENFORCEMENT OF AFFORDABLE HOUSING REQUIREMENTS A. Rights of Refusal a. Grant and Effect. Orange County is granted a right of first refusal to purchase the Property as described in this Section. Any assignment, sale, transfer, conveyance, or other disposition of the Property or any part thereof whether voluntarily or involuntarily or by operation of law ("Transfer") shall not be effective unless and until the below- described procedure is followed. b. Right of First Refusal. If Owner contemplates a Transfer to other than an agency with similar interest in affordable housing serving families with incomes not exceeding 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 transfer, the non- profit fund, foundation, or corporation of like purposes must have established its tax- exempt status under Section 501 (c)(3) of the Internal Revenue Code. Owner shall send to Orange County, at the address noted in the Notice section of this Declaration, not less than 90 days prior to the contemplated closing date of the Transfer, a "Notice of Intent to Declaration of Restrictive Covenants Page 4 Sell." This Notice of Intent to Sell shall be accompanied by a copy of a completed, fully executed bona fide offer to purchase the Property on the then current North Carolina Bar Association "Offer to Purchase and Contract" form. If Orange County elects to exercise its said right of refusal, it shall notify the Owner of its election to purchase within 30 days of its receipt of the Notice and shall purchase the Property or portion thereof within 90 days of the receipt of the "Notice of Intent to Sell." c. Sales After Failure to Exercise Rights of Refusal. If Orange County does not advise Owner in a timely fashion of an intent to purchase the Property, then Owner shall be free to transfer the property in accordance with this Section. d. Assignability Orange County may assign its right of first refusal without Owner's consent. B. Resale Provisions a. If the Owner no longer uses the Property as affordable rental property, then Owner must sell, transfer, or otherwise dispose of its interest in the Property only to an agency with similar interest in affordable housing and to serve families with incomes not exceeding 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 transfer. The non-profit fund, foundation, or corporation of like purposes must have established its tax- exempt status under Section 501 (c)(3) of the Internal Revenue Code. b. However, if the property is not sold, transferred, or otherwise disposed of to an agency with similar interest in affordable housing during the term of affordability, the net sales proceeds (sales price less: (1) selling cost, (2) the unpaid principal amount of the original first mortgage and (3) the unpaid principal amount of the initial Orange County contribution and any other initial government contribution secured by a deferred payment promissory note and deed of trust) or "equity" will be divided 50/50 by the seller of the Property and Orange County. c. The resale provisions shall remain in effect for the full affordability period - 99 years. C. Owner covenants that it will not knowingly take or permit any action that would result in a violation of the affordability requirements of Orange County or of the Orange County HOME Investment Partnership Program. Orange County, together with Owner, may execute and record any amendment or modification of this Declaration and such amendment or modification shall be binding on third parties granted rights under this Declaration. D. Owner acknowledges that the primary purpose for requiring compliance by Owner with restrictions provided in this Declaration is to assure compliance with the affordability requirements of Orange County and the Orange County HOME Investment Partnership Program AND BY REASON THEREOF, OWNER IN CONSIDERATION FOR RECEIVING ORANGE Declaration of Restrictive Covenants Page 5 COUNTY HOME INVESTMENT PARTNERSHIP PROGRAM FUNDS FOR THE PROPERTY HEREBY AGREES AND CONSENTS THAT ORANGE 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 OWNER'S OBLIGATIONS UNDER THIS DECLARATION 1N A STATE COURT OF COMPETENT JURISDICTION, WITH VENUE IN ORANGE COUNTY. Owner hereby further specifically acknowledges that the beneficiaries of Owner's obligations hereunder cannot be adequately compensated by monetary damages in the event of any default hereunder. E. This Declaration may be enforced by Orange County or its designee in the event Owner fails to satisfy any of the requirements of this Declaration by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant. If legal costs are incurred by Orange County, such legal costs, including attorney fees and court costs (including costs of appeal), are the responsibility of, and may be recovered from the Owner. SECTION 6 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 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 Orange County: Orange County c/o Housing and Community Development Department P.O. Box 8181 Hillsborough, NC 27278 ATTN: Director ii. To Chrysalis: The Chrysalis Foundation for Mental Health, Inc. 101 E. Weaver Street, Suite G-7 Carrboro, NC 27510 ATTN: Executive Director c. Governin 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. Declaration of Restrictive Covenants Page 6 IN WITNESS WHEREOF, the Owner has caused this Declaration to be signed by its duly authorized representative, on the day and year first above written. The Chrysalis Foundation for Mental Health, Inc. President ATTEST: Secretary 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 at he is Secretary and that is President of The Chrysalis Foundation for Mental Health, 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 and attested to by its Secretary. Witness my hand and notarial seal, this the day of 2007. Notary Public My commission expires: Declaration of Restrictive Covenants Page 7