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HomeMy WebLinkAboutS Grant Agreement Housing Trust Fund – Approve Transfer of Appropriation NORTH CAROLINA ORANGE COUNTY GRANT AGREEMENT This is an AGREEMENT between ORANGE COUNTY, a general local governmental unit of the State of North Carolina, (hereinafter referred to as the "County") and ORANGE COMMUNITY HOUSING AND, LAND TRUST, a North Carolina non-profit housing organization (hereinafter referred to as "OCHLT"). The effective date of this agreement is July 24, 2002. WITNESSTH WHEREAS, the Orange County HOME Consortium has designated $18,340 in FY 2001 HOME funds for the purpose of conveying these funds to Orange Community Housing and Land Trust for the acquisition of a building lot on Dillard Street in Carrboro hereinafter referred to as the "Project", which property is more particularly described in Exhibit A attached hereto and made a part of this Agreement(hereinafter referred to as the "Property"); and WHEREAS, the County is the lead entity of the Orange HOME Consortium, so designated in an agreement dated July 1, 1999 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 11 of the Cranston-Gonzalez National Affordable Housing Act (Pub. L. 101-625), (42 U.S.C. 3535(d.) et. seg.) (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, Orange Community Housing and Land Trust intends to partner with Habitat for Humanity of Orange County,NC, Inc. to develop one single-family dwelling unit at this property for purchase by a first-time homebuyer; and WHEREAS, a first-time homebuyer for the purposes of this program is defined as any low-income household 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; WHEREAS, the land would be held in a Community Land Trust (CLT), ensuring affordability of the homes for at least 99 years;and NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations contained herein, it is agreed between the parties hereto as follows: 1. a. OCHLT shall ensure the construction of one dwelling unit as defined in the Project, obtain all permits and licenses necessary to construct the homes on the Property, and comply with applicable building and zoning ordinances and the N.C. Housing Finance Agency Energy Standards. The Project shall be undertaken without residential displacement. HOME funds will be used for costs associated with the acquisition of the building lot designated for constructing the dwelling unit that will be placed in the CLT. OCHLT has indicated plans to partner with Habitat for Humanity of Orange County, NC to complete this project as evidenced by a Memorandum of Understanding between Habitat and OCHLT that is incorporated into this document as Exhibit B. Notwithstanding, development of the Property remains the responsibility of Orange Community Housing and Land Trust. b. OCHLT shall convey the housing unit to a qualified homebuyer with incomes up to 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. The housing unit will consist of a 99-year ground lease (renewable for an additional 99 years) to the Property and a warranty deed to the improvements on the Property. C. The period of affordability will be 99 years and will be secured by an OCHLT Ground Lease with restrictions to ensure compliance. Further security shall be in the form of a Declaration of Restrictive Covenants 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 OCHLT to enforce the long-term affordability remedies in the Ground Lease. d. OCHLT is responsible for soliciting a buyer.for the housing unit. OCHLT and/or its buyer shall be responsible for securing permanent mortgage financing for the home built on the Property. e. OCHLT is responsible for verifying the income of the homebuyer, explaining the grant program to potential homebuyers and certifying by written documentation signed by the homebuyer that the program requirements have been fully explained. OCHLT 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. f. HOME funds will be used for the costs associated with the acquisition of the Property. The HOME assisted housing unit must be the principal residence of the first- time homebuyer. 2. Progress Payments. The County shall make progress payments, when requested by OCHLT, as the work progresses. Payments shall be based upon work completed and approved by County. Progress payment requests shall be based on actual costs incurred by OCHLT identified in the Budget as described in the Project. Payment requests shall be accompanied by copies of documentation for actual expenses. Request amounts shall be verified by the County for satisfactory completion prior to payment. 3. Time for Commencement and Completion. OCHLT shall commence the work by March 1, 2003 and complete construction and sale of the townhouse within eighteen (18) months of execution of this Grant Agreement. Additionally, OCHLT will be responsible for providing status reports to the County quarterly detailing the project activities until project completion. The project completion date is the closing date of the purchase by a qualified buyer of the proposed housing unit. In the event that OCHLT is unable to proceed with any aspect of the project in a timely manner, and County and OCHLT determine that reasonable extension(s) for completion will not remedy the situation, then the Termination of Agreement provisions of this Agreement (Section 6.a.) shall pertain. OCHLT 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 OCHLT in default. OCHLT shall monitor the housing unit for affordability for the period of affordability — ninety-nine (99) years. Final completion of this Grant Agreement shall be the latest end date of the assisted unit affordability period. 4. Affordability Requirement. Each unit must remain affordable for a period of ninety- nine years. OCHLT retains full responsibility for compliance with the affordability requirement for the housing unit, unless affordability restrictions are terminated due to the sale of the Property to a non-qualified buyer in which event the Resale Provisions of Section 5 of this Agreement pertain. OCHLT shall assure compliance with affordability of the housing unit by having recorded, at the time of the sale of the housing unit, a "Declaration of Restrictive Covenants" (EXHIBIT C) 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 OCHLT 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 ground lease created in Exhibit B 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 § 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 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, OCHLT 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 , OCHLT and Orange County will to do what each must do to accomplish the 99 year duration of this Declaration of Restrictive Covenants. 5. Resale Provisions. OCHLT shall assure compliance with affordability of the assisted unit through the Declaration of Restrictive Covenants and the Ground Lease. 6. Property Standards. HOME assisted units must, at a minimum, meet the housing quality standards of the HOME program 24 CFR 982.401. In addition, HOME assisted units must meet all applicable local codes, ordinances, and zoning ordinances. The housing must meet the accessibility requirements in the regulations referenced 24. CFR 5.105 (a) which implement the Fair Housing Act and Section 504 of the Rehabilitation Act of 1973. 7. Miscellaneous Provisions. a. Termination of Agreement. The full benefit of the Project will be realized only after the completion of the affordability periods for the property constructed with HOME funds provides an affordable unit to a low-income family. It is the County's intention that the full public benefit of this project shall be completed under the auspices of OCHLT for the assisted unit as follows: i. In the event that OCHLT is unable to proceed with any aspect of the Project in a timely manner, and County and OCHLT determine that reasonable extension(s) for completion will not remedy the situation, then OCHLT will retain responsibility for requirements for any dwelling unit assisted and County will make no further payments to OCHLT. ii. In the event that OCHLT, 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;romply or perform with provisions of this agreement, then OCHLT shall, upon the County's request, convey to the County the property assisted with funds. Conveyance shall be at the sole discretion of County and on a dwelling unit by dwelling unit basis. Conveyance of property shall be on the terms set forth herein: Conveyance of property shall occur within thirty (30) days of County and OCHLT's agreement of OCHLT's inability to continue as a viable organization. OCHLT shall convey the subject 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). b. Default, Remedies. This Agreement may be terminated by a non-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. 2 C. Books and Records. OCHLT 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. OCHLT shall ensure access to records and financial statements, as necessary, to provide effective monitoring and evaluation of project performance. Upon reasonable advance notice, County or its authorized representatives may from time to time inspect, audit, and make copies of any of OCHLT's records that relate to this contract. If any audit by County discloses that payments to OCHLT were in excess of the amount to which OCHLT was entitled under this contract, OCHLT shall promptly pay to County the amount of such excess. If the excess is greater than 1% of the contract amount, OCHLT shall also reimburse County its reasonable costs incurred in performing the audit. ii. OCHLT shall maintain files of all buyers,regardless of length of occupancy, residing in the assisted unit. Documentation shall verify eligibility for federal HOME assisted housing, at the point of initial closing on the unit, and every subsequent buyer thereafter for the period of affordability. Information maintained shall include buyer income level,ethnic data, female head of household, and disability status and Property and Improvement purchase price. iii. OCHLT shall maintain records verifying the affordability of the assisted unit. Each party agrees that any authorized representative of the County, the State, the U.S. Department of Housing and Urban Development and Comptroller General of the United States shall, at all reasonable times, have access to and the right to inspect, copy, audit and examine all of the books, records and other documents relating to the grant and the fulfillment of this Agreement for a period of five (5) fiscal years following the completion of the Project. d. Conflict with HOME Agreement. Notwithstanding anything herein to the contrary, the parties hereto acknowledge the due execution of a HOME Program Agreement between the County and the U.S. Department of Housing and Urban Development and agree that any conflict between the provisions, requirements, duties or obligations of this Agreement and the HOME Agreement shall be resolved in favor of the HOME Agreement. e. Notices. Any Notice shall be in writing and shall be given by depositing the same in the United States mail, post-paid and registered or certified, and addressed to the party to be notified, with return-receipt requested, or by delivering the same in person to an officer or principal of such party. Notice deposited in the mail in the manner 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 3 ii. To OCHLT: Orange Community Housing and Land Trust P.O. Box 307 Carrboro,NC 27510 ATTN: Executive Director Either the County or OCHLT may change the person or address to which any future Notice shall be given as herein provided. f. No Assignment. No transfer or assignment of the interest of OCHLT in this Agreement shall occur without the prior written consent of the County; neither may OCHLT assign this Agreement without the prior written consent of County. g. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. h. Indemnification. To the extent legally possible, OCHLT 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 OCHLT, its employees, agents, officers, and contractors in connection with this contract. In the event any such action or claim is brought against County, OCHLT shall, upon County's tender, defend the same at OCHLT's sole cost and expense,promptly satisfy any judgment adverse to County or to County and OCHLT jointly, and reimburse County for any loss, cost, damage, or expense, including attorney fees suffered or incurred by County. i. Subcontracting. OCHLT shall not subcontract work under this contract, in whole or in part, without County's prior written approval. OCHLT 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 obligations of OCHLT specified in this contract. Notwithstanding County's approval of a subcontractor, OCHLT shall remain obligated for full performance of this contract and County shall incur no obligation to any subcontractor OCHLT shall indemnify, defend, and hold County harmless from all claims of its contractors. j. No Joint Venture or Agency. The County and OCHLT each agree and acknowledge that nothing contained herein or otherwise, including, without limitation, any act of the County or OCHLT under this Agreement, shall be deemed or construed to create any relationship of j oint 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 OCHLT 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 OCHLT be a waiver by the County of its rights and remedies with respect to that or any other breach. 4 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 OCHLT 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 OCHLT 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. OCHLT 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 this Project. Further, OCHLT shall provide a Statement regarding the-utilization of minority and women- owned businesses in the planning and development of the Project. This statement will be Exhibit C to this agreement. o. Headings. Head_ings are for cony-.nience only and shall not be used to interpret or construe its provision. 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, OCHLT 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. 5 S. Publicity; Signage. OCHLT 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. 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 OCHLT 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, OCHLT or any of their respective officers, agents or employees by any third party. V. 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. I 6 IN WITNESS-WHEREOF, the parties hereto, intending to be legally bound, have set their hands and seals on the day and year first above written. COUNTY OF ORANGE,NORTH CAROLINA (SEAL) Roden k Visser, Assistant County Manager for John M. Link, Jr.,County Manager ATTEST: 4X,744 J Donna S. Baker Clerk to the Board of Commissioners Appr ed as to form and legality eo G�Aiif' County Attorney This document has been preedied in accordance with the N.C. Local Government and Fiscal _ Control Act. �'�— ,Kenneth Chavious, Finance Director NORTH CAROLINA ORANGE COUNTY This is to certify that on this day personally came before me Donna S. Baker, with whom I am personally acquainted, and being by me duly sworn, says that Roderick Visser is the Assistant County Manager of Orange County, NC, and that she the said Donna S. Baker, is the Clerk to the Board of Commissioners of the County of Orange, the body politic and corporate named within and which executed the foregoing instrument; that she knows the common seal of said County; that the seal affixed to said instrument is said common seal; that the name of Orange County was subscribed thereto by the said Assistant County Manager of Orange County, NC and said Donna S. Baker subscribed their names hereto and said common seal was affixed, all by order of the Board of County Commissioners of Orange County and that said instrument is the act and deed of Orange County. Witness my hand and notarial.seal,this the .-Z 6' day of 2002 `� Notary Public My commission expires: lG "�3 - -;1ZV 7 ORANGE COMMUNITY HOUSING AND LAND TRUST (SEAL) +residdRt V+ue. �i�.S.cjtewt ATTEST: 1rY —, Secretary Eleanor NORTH CAROLINA CAROLINA ORANGE COUNTY I, Jvn nne L- lTyt , Notary Public in and for the above named County and State, do hereby certify that on this day personally appeared before me E(&&fir .-(./jMQ with whom I am personally acquainted, who, being by me duly sworn, says tha&e is Secretary and that r is�Psident of Orange Community Housing and Land Trust, 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 itMesident, sealed-with its corporate seal and attested to by its Secretary. Witness my hand and notarial seal, this the ay of 20 dWL No�o Public My commission expires: ** 's .dG *"Nrui�t� 8 EXHIBIT A Property Description Being all of Lot A, consisting of 10,337 square feet according to the plat recorded at Plat Book 89,Page 13, Orange County Registry to which reference is made for a more particular description. Exhibit B Prepared by and return to: Geoffrey E. Gledhill,P.O. Drawer 1529, Hillsborough,NC 27278 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (Declaration), dated , by Orange Community Housing and Land 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, a body politic and corporate, a political subdivision of the State of North Carolina, together with any successor to its rights, duties, and obligations. RECITALS: WHEREAS, the Orange County HOME Consortium has designated $18,340 in FY 2001 HOME funds for the purpose of conveying these funds to Orange Community Housing and Land Trust for the acquisition of a building lot on Dillard Street in Carrboro hereinafter referred to as the "Project", which property is more particularly described in Exhibit A attached hereto and made a part of this Agreement(hereinafter referred to as the "Property"); and WHEREAS,the County is the lead entity of the Orange HOME Consortium, so designated in an agreement dated July 1, 1999 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 providLu' by the U.S. Department of Housing and Urban Development;and WHEREAS, Orange Community Housing and Land Trust intends to partner with Habitat for Humanity of Orange County, NC, Inc. to develop one single-family dwelling unit at this property for purchase by a first-time homebuyer;and WHEREAS, a first-time homebuyer for the purposes of this program is defined as any low-income household 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, the Project will be carried out on the Property; and WHEREAS,the land will be held by OCHLT, ensuring affordability of the homes for at least 99 years; and WHEREAS, Orange County requires and Owner agrees to the requirement, as a condition precedent to the awarding of HOME Investment Partnership Program funds, that Owner execute, deliver and record this Declaration in the Office of the Register of Deeds of 1 Orange County in order to create certain covenants pertaining to the Property and running with the land for the purpose of enforcement of the affordability requirements of the HOME Investment Partnership Program. WHEREAS, OCHLT has signed this Declaration agreeing to the terms of this Declaration and its obligations pursuant to this Declaration; and NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations contained p herein, it is agreed between the parties hereto as follows: SECTION 1 REPRESENTATIONS, COVENANTS AND WARRANTIES OF OWNER OCHLT hereby represents, covenants and warrants as follows: a. Subject to the requirements of the GRANT AGREEMENT (Exhibit B hereto) and this Declaration, OCHLT 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 Orange County, provided, however, 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. OCHLT 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. Immediately following the execution, delivery and recording of this Declaration, OCHLT 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. OCHLT 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, 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. OCHLT 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. SECTION 3 RECORDING AND FILING; COVENANTS TO RUN WITH THE LAND 2 a. OCHLT 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. OCHLT shall pay all fees and charges incurred in connection therewith. b. OCHLT 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 Orange 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, 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 OCHLT 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 each 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-uf this Declaration of Restrictive Covenants be accomplished and that any future owner of the Property, OCHLT 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 , OCHLT and Orange County will 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. Upon completion of construction of the Project, OCHLT will convey a housing unit to a qualified homeowner. The housing unit will consist of a 99 year ground lease (renewable for an additional 99 years) to the housing unit and a warranty deed to the improvements on the leased premises. 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. OCHLT hereby declares and covenants, on behalf of itself and all future owners of the Property, that, during the term of this Declaration, Orange 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 3 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. OCHLT 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 carryout the intent of this Declaration, and be binding on third parties granted rights under this Declaration. OCHLT 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. OCHLT acknowledges that the primary purpose for requiring compliance by OCHLT 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, OCHLT, IN CONSIDERATION FOR RECEIVING 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 OCHLT'S OBLIGATIONS UNDER THIS DECLARATION IN A STATE COURT OF COMPETENT JURISDICTION, WITH VENUE IN ORANGE COUNTY. OCHLT hereby further specifically acknowledges that the beneficiaries of OCHLT's obligations hereunder cannot be adequately compensated by monetary damages in the event of any default hereunder. 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 OCHLT. 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 4 P.O. Box 8181 Hillsborough,NC 27278 ATTN: Director ii. To Declarant: To OCHLT: Orange Community Housing and Land 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, Owner and OCHLT have caused this Declaration to be signed by their duly authorized representatives, on the day and year first above written. [SIGNATURES APPEAR ON FOLLOWING PAGE] 5 ORANGE COMMUNITY HOUSING AND LAND TRUST By: Robert Dowling, 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 that he is Secretary and that . is President of Orange Community Housing and Land Trust, 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 , 2,002. Notary Public My commission expires: l sg:orangecounty\ochltdeclofrestcov I I 6 Exhibit C 2 7�aC Memorandum Of Understanding Between Habitat for Humanity, Orange County,NC,Inc. 122 South Churton Street Hillsborough,NC, 27278 Orange Community Housing and Land Trust 104-C Jones Ferry Road Carrboro,NC 27510 Re. 102-A Dillard Street; Carrboro,NC 27510 RECITALS: L Orange Community Housing and Land Trust(hereinafter"OCHLT') intends to purchase the lot located at at 102-A Dillard Street; Carrboro,NC 27510(hereinafter the`property-). 2. OCHLT intends to acquire the Property with$18,340 in final project financing to be provided by the Orange County HOME Investment Partnership program. (hereinafter "HOME Program"),which financing will be subject to the provisions of a certain agreement regarding the development and maintenance of affordable housing 0. pportunities in Orange County. 3- Among the provisions to be stipulated in the performance Agreement are: • Environmental review. • Sale prices affordable to households earning no greater than 80'/0 of the adjusted area median income,-<heminafter"Low Income Households"). Adjusted area median income is specified in chart in Exhibit D., • Homes occupied by Low to Moderate Leconte Households. • Homes occupied by Orange County Residents. 4. Habitat for Humanity, Orange County,NC,Inc.(hereinafter"Habitat")has among its purposes to develop affordable homeownership opportunities in Orange County,NC (hereinafter the"Habitat Program"), Key elements of the Habitat Program are: • To build well-constructed, low cost Domes in partnership with f unilies/individuals who earn at or below 50019 of the area median income, • To involve the community in the building of the homes as volunteers and donors. • To provide no interest mortgages to the fiamilies/individuals who purchase the homes. 1 ■ To work collaboratively with other organizations in the community to further our mission of eliminating substandard housing in Orange County. 5. Habitat expects the duration of the construction period for a home on the site to last approximately A specific start date for construction is unknown at this time. 6, Habitat wishes to establish and maintain control over the.homebuyer selection process. 7, OCHLT supports the stated objectives of the Habitat program and desires to collaborate with Habitat on its successful implementation. g. OCHLT has among its purposes to develop, support the development of and promote permanently affordable homeownership opportunities in Orange County,NC (hereinafter the "OCHLT Program,,). Key elements of the OCHLT Program are: • To acquire Property and retain ownership of the land in perpetuity for the benefit of the surrounding community, • To sell, or cause to be sold,the improvements located on the land to low and moderate- income families, individuals,housing cooperatives and community organizations. • To enter into long-term ground lease agreements (hereinafter"OCHLT Ground Lease Agreement")with owners of improvements located on its land. • To include provisions in the OCHLT Land Lease Agreement that strike a fair balance between the improvement owner's opportunity to accuunilate wealth and the . community's interest in assuring continuing affordability of the property to future low to moderate income households, 9. Habitat supports the OCIILT Program and desires to collaborate with OCHLT on its - successful implementation. 10. OCHLT understands that Habitat uses stock building and site dmg plans,and agrees to bear the cost of any substantial modifications it requests to these plans. Therefore, Habitat and OCHLT hereby agree to the following: 1. Habitat and OCHLT agree to collaborate as partners in the following described "Project": • A single-family dwelling unit to be constructed on the Land at 102-A Dillard Street (hereinafter the"Dwelling Unit'. • The Dwelling Unit will be constructed by Habitat subject to the terms of a"Construction Contract"between OCHLT as Owner, and Habitat as Contractor. Such terms and conditions may include amongst other provisions Habitat's right to secure and protect its interest in the improvements against OCHLT's bankruptcy, assignment for the benefit of creditors, etc. • Financing for construction of the Dwelling unit will be provided by Habitat(hereinafter the "Construction Financing 2 • Habitat will have sole right and obligation to select a purchaser for the Dwelling Unit only from among Low Income Households who have received adequate orientation to,and who agree to honor and abide by the terms of both the Habitat Program and the OCHLT Program(hereinafter"Purchaser'). • Prior to closing, OCHLT agrees to execute its standard Offer to Purchase and Contract, using the form in Exhibit C, attached,and on the closing date, OCHLT will execute a ground lease with the buyer, using the form in Exhibit D,attached,and will convey title to improvements to.the buyer using the deed attached as Exhibit E. Habitat's staff w d legal council may review Exhibits C, D, and E,at Habitat's expense,and suggest amendments. Habitat understands, however,that OCHLT may choose not to amend Exhibits C,D, and E as these documents represent the"core"of OCHLT's program ' • In future re-sales of the home, the resale price will be calculated based upon the urmula contained in the OCHLT Ground Lease,rather than according to Habitat's appreciation schedule. • Mortgage financing for Purchaser's acquisition of the Dwelling Unit and the OCHLT Ground Lease Agreement will be provided to Purchaser by Habitat on terns agreeable to Purchaser and Habitat(hereinafter"Mortgage Financing')- • If additional subsidy for this project is sought from the municipal governments, the OCHLT and Habitat agree to jointly request that the fluids be given in the form of a grant to the Project rather than as a second mortgage to the homeowner. 2. Habitat and OCHLT will together be responsible for implementing the Project in compliance with the provisions of the Performance regarding Purchaser. OCHLT will be responsible fo p a�ing the Pro�>eligibility with Provisions of the Performance Agreement regarding continuing affordability. Not withstanding this provision,HHOC intends to include language in its agreement with OCHLT and with Purchaser, which describes its option to nominate fixture purchasers of The . Property in the event of resale. OC UT shall honor such nominations, if so made, to the extent they do not conflict with the other terms of this agreement. . 3. The Construction Contract shall: • Include building specifications for the Dwelling Unit that are satisfactory to both parties. • Include site-planning specifications that are satisfactory to both pantie& • Require Habitat to carry builder's insurance - • Be for an amount equal to the Purchase Price as described below. 4. OCHLT agrees to provide Habitat with access to the Property"as is"for the purpose of constructing a Dwelling Unit in accordance with the Habitat Program, subject to the tam of this MOU. Habitat and OCHLT hereby acknowledge and agree: • That if the Property does not meet current County/City building lot requirements, the responsibility for obtaining necessary permits or zoning variances, together with any and all fees, site design,civil engineering and/or infrastructure installation costs associated with obtaining such variances and any other required permits shall be borne by Habitat and included in the Project Development Expenses attached hereto as Exhibit F. 3 5. Habitat agrees to pay OCHLT a Development Fee of$1,500 for development rights to the property. 6. Habitat shall be solely responsible for supervising and otherwise assuring the safe and timely construction of the Dwelling Unit per the terms of the Construction Contract. 7. The Purchase and Sales Contract between Purchaser and OCHLT shall: a) Be in the amount of the value of the improvements as determined by an appraisal upon the completion of construction. b) Include as an exhibit,a copy of the form of the OCHLT Ground Lease Agreement. c) Reference the intent of this MOU(Le. that the Property's underlying land will be owned by the OCHLT and leased to the Purchaser per the terms of the OCHLT Ground Lease Agreement and Performance Agreement). d) Include a letter of stipulation and attorney's declaration to this MOU providing no more than 10 business days for the Purchaser to obtain independent advice as to the nature of the OCHLT Program within which period Purchaser may elect, in writing, to declare the Contract null and void and be entitled to the return of any earnest money deposit held on account of the Contract;require that Purchaser,prior to closing, successfully complete or otherwise provide evidence of having successfully completed a first time homebuyer education curriculum taught by a ccrtiified instructor. , 8. Legal expenses for drawing up Memorandum of Understanding and Construction Contract will be borne by OCHLT. 9. Any conflicts between Habitat and OCHLT arising from changes in the organizational policies or procedures of either party will be resolved ip.good faith. Either party may terminate this MOU at any time with 5 business day's written notice to the other party,until the Construction Contract between OCHLT and Habitat is signed Alter the Construction Contract is signed, both parties"agree to be bound by the terms of the Construction Contract. OCHLT By: 74- Date: 9V4q ZMt Habitat Bx/ ` Date: -2.5-o'L. 4