HomeMy WebLinkAboutAssignment, Assumption and Consent to Transfer Real Property between CASA, a non-profit corporation, and Chrysalis for Mental Health Foundation, Inc. i
Prepared by and return after recording to: Annette Moore, Orange County Attorney's
Office,P.O. Box 8181,Hillsborough,NC 27278
NORTH CAROLINA
ORANGE COUNTY
ASSIGNMENT,ASSUMPTION AND CONSENT TO TRANSFER REAL PROPERTY
This Assignment, Assumption and Consent to transfer real property is between CASA., a non-
profit corporation (hereinafter referred to as "CASA")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, a successor in interest to OPC Foundation for
Mental Health, Inc. and Chrysalis for Mental Health Foundation, Inc. (hereinafter referred to as
"Chrysalis"); EmPOWERment, Inc., a non-profit corporation (hereinafter referred to as
"EmPOWERment") 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; and the County of Orange, a local political subdivision of the State of North Carolina
(hereinafter referred to as "Orange County).
WITNESS THAT:
Whereas CASA is a non-profit corporation established for the purpose of providing safe,
decent, stable and affordable housing and support for persons with long term and persistent
mental illness, mental retardation or developmental disabilities, a substance abuse disorder
and/or children with severe emotional problems; providing such persons with housing facilities
and support specifically designed to meet their physical, social and psychological needs; and to
promote the health, security, happiness and usefulness of persons with aforementioned
disabilities; and
Whereas Orange County, through its Housing and Community Development Department
provides funding to qualified organizations to expand the supply of affordable housing in Orange
County; and
Whereas Orange County provided partial financing to Chrysalis for twenty (20) housing
units in orange County previously owned by Chrysalis and now owned by CASA; of which eight
(8) of the housing units were financed with HOME Investment Partnership funds totaling
$413,625 and twelve (12) housing units were financed with Orange County Affordable Housing
Bonds funds totaling $560,000; and
Whereas Orange County, to assure the long term affordability of these properties, caused
the properties to be encumbered by various means including development agreements,
declaration of restrictive covenants, deeds of trust and promissory notes; and
Whereas, CASA entered into an Assignment, Assumption and Consent to Transfer Real
Property Agreement with Chrysalis and Orange County, found in the Orange County Register of
Deeds, Deed Book 4867at Page 171; and
Whereas CASA now desires to transfer one dwelling unit, located at 800 Pritchard
Avenue,Unit C-3, in Chapel Hill,North Carolina to EmPOWERment; (hereinafter referred to as
the "Property"), and more particularly described in EXHIBIT A, which is attached hereto and
incorporated herein; and
Whereas the Declaration of Restrictive Covenants, found in the Orange County Register
of Deeds, Deed Book 3405, Page 166, provides that the owner may transfer the Property to a
non-profit 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, subject to the requirements of the Development Agreement
which is attached as EXHIBIT B and incorporated herein, the Declaration of Restrictive
Covenants, and the County Housing Bond Program provided the owner obtains written
agreement, in a form satisfactory to Orange County, from the person acquiring the Property, that
such acquisition is subject to the requirements of the Declaration of Restrictive Covenants, the
Development Agreement and the County Housing Bond Program; and
Whereas a Deed of Trust and Security Agreement, found in Orange County Register of
Deeds, Deed Book 3405, Page 180, secures funds advanced by Orange County to Chrysalis in
the principal sum of $300,000 for the Property (the "Deed of Trust") and evidenced by a
Promissory Note (the "Note") dated the same date as the Deed of Trust, the final payment of
which is due, together with interest thereon, as provided in the Note; and
Whereas CASA desires to transfer the Property to EmPOWERment, a non-profit
corporation of like purpose subject to the requirements of the Declaration of Restrictive
Covenants, the Development Agreement, the Deed of Trust, the Note and the County Housing
Bond Program; and
Whereas CASA desires to assign to EmPOWERment its obligations contained in the
Declaration of Restrictive Covenants, the Development Agreement, the Deed of Trust and the
Note; and
Whereas EmPOWERment desires to accept the transfer of property from CASA subject
to the requirements of the Declaration of Restrictive Covenants, the Development Agreement
and the County Housing Bond Program;
Whereas EmPOWERment desires to accept from CASA the assignment of the
obligations of CASA contained in the Deed of Trust and the Note; and
Whereas Orange County consents to the transfer and acceptance of the transfer of
Property subject to the requirements of the Declaration of Restrictive Covenants, the
Development Agreement and the County Housing Bond Program along with the assignment of
the obligations contained in the Deed of Trust and the Note;
NOW THEREFORE, CASA a successor in interest to Chrysalis, a not for profit corporation
does hereby:
(1) give, transfer, assign, and deliver unto EmPOWERment, Inc., a not for profit
corporation, and its successors, nominees and assignees all of its rights, title and interest, and all
addenda modifications and amendments thereto in and to the Property described in EXHIBIT
(2) assign and transfer to EmPOWERment, its obligations contained in the
Declaration of Restrictive Covenants, the Development Agreement, the Deed of Trust and the
Note, and the obligation to pay money due and to become due upon the Note, with interest. Said
assignment is subject to all terms and conditions found in the Deed of Trust, the Note, the
Declaration of Restrictive Covenants, the Development Agreement, and all addenda,
modifications and amendments thereto and shall remain in effect under this assumption and for
any successor Assignor or any successor Assignee who shall assume all duties and obligations of
the original borrower.
IN WITNESS WHEREOF, the signatories below have caused this instrument to be signed in
their corporate names by duly authorized officers. By execution hereof, Orange County
specifically consents to the assignments to EmPOWERment contained herein. This the
day of , 2016.
[SIGNATURE PAGES TO FOLLOW]
ORANGE COUNTY,NORTH CAROLINA
Earl McKee, Chair
Orange County Board of Commissioners
ATTEST:
4 Cle eputy Clerk
Clerk to the Board of Commissioners
Approved as to form and legality
Orange County Attorney's Office
NORTH CAROLINA
ORANGE COUNTY
I, (if) .j> t�CD . a Notary Public of the County and State aforesaid,
certify tha � erson lly came before me this day and acknowledged that s/he is
Clerk/Deputy 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 the Chair of said Board of Commissioners and attested by her/him as Clerk/Deputy
Clerk to said Board of Commissioners.
Witness my hand and notary seal, this the k day of , 20k.
Notary Pub
My Commission Expires: 16 °j a ' `l
Donna S.Uoyd
Notary Public
aN rthCar�ofi�nay
M Commission res
CASA, INC.
Deborah K. King, CEO
Attest:
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 is the President, and that by the
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
Witness my hand and notary seal, this the day of 20—.
Notary Public
My Commission Expires:
EMPOWERMENT,INC.
Deloris Bailey, Executive Director
Attest:
NORTH CAROLINA
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 is the President, and that by the
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
Witness my hand and notary seal, this the day of _20—.
Notary Public
My Commission Expires:
Exhibit A
PIN: 9789-20-1266.030
TAX MAP: 7.30F.C..3
Being all of Unit C-3 of the University Gardens Condominiums, according to the Declaration
thereof, dated July 15, 1981, and recorded in Official Records Book 367 at Page 577, Orange
County Registry, together with all appurtenances thereto, all according to said Declaration of
Condominium, and as amended in Book 369 at Page 533, Orange County Registry, and as shown
on Plat Book 34, at pages 7 through 9, Orange County Registry.
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Exhibit B
DEVELOPMENT AGREEMENT
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 io as the "County")
and OPC Foundation f'or Mental Health, a North Carolina non-profit car or tion(hereinafter
referred to as"OPC Foundation") The effective date of this.agreement is
WITNESSTH
WHEREAS, the Orange County Board of Commissioners awarded the OPC Foundation
$300,000 in FY 1997 Housing Bond funding to assist in the construction of the Club Nova
Apartments in Carrbom,NC in Tune 2001; and;
WHEREAS, OPC Foundation submitted a letter dated November 19, 2003 requesting
the reallocation of the funds fiom the Orange County Bond Program to provide matching funds
for a HUD Supportive Housing Program grant as well as a letter dated March 17, 2004, which
are incorporated by reference into this Agreement.. The letters are on file in the office of the
Orange County Housing and Community Development; and
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WHEREAS, the Orange County Board of Commissioners approved the reallocation of
$300,000 in FY 1997 Housing Bond funding on December 9,2003;and,
WHEREAS, OPC Foundation intends to purchase eight dwelling units The dwelling
units are located at 111 and 336 Ashley Forest; 529 Hillsborough St G-1 and G-3; 800 Pritchard
Avenue B6, C3, and E3 all in Chapel Hill, NC; and 2308 Red Bird Lane in Hillsborough, NC
(herein after-referred to as "the Project dwelling units" or"the Project"), The Project dwelling
units are located on properties more particularly described in E)U BIT A attached hereto and
made a part of this Agreement(hereinafter referred to as"the Property"); and
WHEREAS, OPC Foundation intends to make the Project dwelling units available for-
lease to families earning up to 50%of'HUD area median income;
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
representations contained herein,it is agreed between the parties hereto as follows:
1. a. OPC Foundation shall acquire the Property including the Project dwelling units and
ensure that the units meet the Section 8 Housing Quality Standards (HQS) prior- to
leasing All repair work must be completed in accordance with applicable building and
zoning ordinances and N.0 Housing Finance Agency Energy Standards.
Any tenants residing in the Project dwelling units at the time of acquisition of the Project
dwelling units that are displaced due to the repair work must be notified in writing of the
need for temporary relocation and must be adequately housed in the community. OPC
Foundation must submit within 90 days of the date of this Agreement a detailed written
report of'the relocation plan for-all tenants., All relocation activities will be fully funded
by the OPC Foundation,
OPC Foundation 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 HUD Published Fail-Market Rents in effect at
the time of occupancy Residential leases will not exceed one year in term„
b Financial assistance in the amount of $300,000 in Orange County Housing Bond
Funding will be provided in the form of"a deferred loan with a ninety-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 affbr•dable for-a period of 99 years. This 99 year
affordability r-equiiement 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.,
a, The Property shall be acquired and the Project dwelling units rehabilitated and
occupied by September 30, 2004 In the event that OPC Foundation 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, OPC Foundation will be required to repay the full amount of'the County's
outstanding loan as provided in the loan documents
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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 fbr the fiscal year
f. OPC Foundation is responsible for verifying the income of prospective tenants and
maintaining eligibility data OPC Foundation shall maintain tenant files as part of its
Books and Records as required and fbx•the period of time required by Section 4c.. of this
Agreement OPC Foundation must provide the County an initial occupancy report
verifying the income eligibility of all tenants at the time of initial lease-up.. OPC
Foundation must furnish the County with an annual report on the Project dwelling units
by ,July 31 0#'each yeas thereafter certifying that all tenants earn less than 50% of the
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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 OPC 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 a non-qualified buyer- in
which event the Resale Provisions of Section 3 of this Agreement pertain OPC
Foundation shall assure compliance with affordability of each of the Project dwelling
units by having recorded a"Declaration of Restrictive Covenants" (E)CHIBIT B) on the j
Property This Declaration shall constitute and remain a first lien on the Property during
the period of affordability,. !
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It is further- the responsibility of OPC Foundation 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 m 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, 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 o#'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
3., Resale Provisions. OPC Foundation 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 OPC Foundation no longer uses the Property as rental property or is unable to
continue ownership, then the OPC Foundation 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 US 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..
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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 50150 by the seller
of the Property and the County.
33 The resale provision shall remain in effect for the full affordability period — 99
years
4. 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 Project dwelling units It is the County's
intention that the full public benefit of'the Project shall be completed under the auspices of OPC
Foundation for the assisted units as follows:
i In the event that OPC Foundation is unable to proceed with any aspect of'the Project
in a timely manner, and County and OPC Foundation determine that reasonable
extension(s) for completion will not remedy the situation, then OPC Foundation will
retain responsibility for requirements for any dwelling units assisted and County will
make no further payments to OPC Foundation
ii. In the event that OPC Foundation, 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 OPC
Foundation 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
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 OPC Foundation's
agreement of OPC Foundation's inability to continue as a viable organization OPC
Foundation 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).
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
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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 i
respect to such default.
C.. Books and Records. OPC Foundation 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
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i. OPC Foundation shall ensure access to records and financial statements, as
necessary, to provide effective monitoring and evaluation of project performance
Additionally,OPC Foundation 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 OPC Foundation's records that relate to
this contract. If any audit by County discloses that payments to OPC Foundation were in
excess of the amount to which OPC Foundation was entitled under- this contract, OPC
Foundation shall promptly pay to County the amount of such excess., If the excess is
greater than 1% of'the contract amount, OPC Foundation shall also reimburse County its
reasonable costs incurred in per forming the audit
ii. OPC Foundation 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. OPC Foundation 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:
i To the County: Orange County
c/o Housing and Community Development
Department
P O Box 8181
Hillsborough,NC 27278
ATTN: Director
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ii. To OPC Foundation: OPC Foundation for•Mental Health,Inc., ;
101 East Weaver Street, Suite 300
Carrboro,NC 27510
ATTN:Executive Director,
Either- the County or OPC Foundation 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 OPC Foundation in
this Agreement shall occur without the prior written consent of the County; neither may OPC
Foundation assign this Agreement without the prior,written consent of County
f'. Conflict of Interest. OPC Foundation agrees to abide by the provisions of 2.4
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.. OPC
Foundation further covenants that in performance of this Agreement no person having such a
financial interest shall be employed or,retained by OPC Foundation 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 County Housing Bond Program
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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,OPC Foundation 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 OPC Foundation, its employees, agents,
officers, and contractors in connection with this contract. In the event any such action or claim is
brought against County, OPC Foundation shall, upon County's tender, defend the same at OPC
Foundation's sole cost and expense, promptly satisfy any judgment adverse to County or- to
County and OPC Foundation jointly, and reimburse County for, any loss, cost, damage, or-
expense,including attorney fees suffered or incurred by County
L Subcontr'acting.. OPC Foundation shall not subcontract work under- this
Agreement, in whole or in part, without the County's prior written approval. OPC Foundation
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 OPC Foundation
specified in this contract Notwithstanding County's approval of a subcontractor-, OPC
Foundation shall remain obligated for full performance of this contract and County shall incur no
obligation to any subcontractor- OPC Foundation shall indemnify, defend, and hold County
harmless from all claims of its contractors
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j• No Joint Venture or Agency. The County and OPC Foundation each agree and
acknowledge that nothing contained herein or-otherwise,including,without limitation, any act of
the County or-OPC Foundation under-this Agreement, shall be deemed or construed to create any
relationship ofJoint 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 terra or condition of this Agreement, or-to exercise any right or remedy
upon the breach by OPC Foundation 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 OPC Foundation 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 OPC
Foundation 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 OPC
Foundation 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. OPC Foundation 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 far•convenience 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.
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q.. Recording. The patties 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, OPC Foundation shall comply with all
fbderal, 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. OPC Foundation 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 OPC Foundation 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, OPC Foundation 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 fiom 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
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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.
-�* � �•t�,� COUNTY OF ORANGE, NORTH CAROLINA
(SEAL) !r
To .Link, Tr", Co Manager
�O`fb
ATTEST:
Donna Ber
ak
Clerk to the Board of Commissioners
Approv as to form an legality
eoffr ed ' , County Attorney
This document has been ppreaudited in accordance with the N C. Local Government and Fiscal
Contro�G �t=^l C%~"
--r;Kenneth Chavious,Finance Director
NORTH CAROLINA
ORANGE COUNTY
This is to ceitify that on this day personally came before me Donna Baker, with whom 1
am personally acquainted, and being by me duly sworn, says that John M Link, .Jr.. is the County
Manager of Orange County,NC, and that she the said Donna 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.the name of Orange County was subscribed thereto by
the said County Manager of Orange County, NC and said Donna Baker subscribed their names
hereto, 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 �� day of 2004.
r
r�� �D otaxy Public
My commission expires: �� ' ff
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OPC Foundation fbY•Mental Health,Inc.
z
(SEAL) (0���t°
-OLM) sf. U6,.Ac t& ,President
ATTEST: �e� !
S.auSQf1Jei.L, ,Secretary
NORTH CAROLINA
ORANGE COUNTY
I, +--1 e-r4rso ?e h , Notary Public in and for-the above named County and
State, do hereby certify that on this day personally appeared before me lfkk S Nv4<j ith
raof W Pr-esident I amp rsonally acquainted, who,being by me duly sworn, says atShe is ecretaxy and that
of' OPC Foundation for Mental Health, Inc, a North Carolina
corporation, and that by authority duly given and as the act oft he 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 �7 day of• /,`z�2004
r�:;> t�c
Notary rc
My commission expires: ( e vary/� 2 B'
OFFICIAL SEAL
Notary Pubiic,North Carollna
County of Orange
Jetterson D.Parker
EAA A A A
My Commission Expires Feb 18 2008
10
EXHIBIT A
PROPERTY DESCRIPTION
Being known and designated as Unit 111,Building B,as shown on Plat or Plats entitled"Ashley
Forest"recorded in condominium and unit ownership Book 40 at Page 78 through 80,in the
Office ofthe Register of'Deeds of'Orange County,North Carolina,reference to which is hereby
made for a more particular description, and an undivided 1.61290323% fee simple interest in
each of the aforesaid units in and to the common area shown on the reference recorded plat.
TMBL 7 29D.• 14
PIN 9789-38-5658 014
Being known and designated as Unit 336, Building H,as shown on Plat or Plats entitled"Ashley
Forest"recorded in condominium and unit ownership Book 40 at Page 78 through 80,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 an undivided 1..61290323% fee simple interest in
each of the aforesaid units in and to the common area shown on the reference recorded plat.
TMBL 7.29D..55
PIN 9789-38-5658 055
Being all of'Unit No.. G-1 Brookside Condominiums,according to Plat Book 34, at Page 87,
Orange County Registry Together with all appurtenances thereto the Declaration of
Condominium thereof, dated September 28, 1981, and recorded in official records Book 373,at
Page 558, Orange County Registry..
TMBL 7.82A-22
PIN 9789-40-3736.022
Being all of Unit No. G-3, of the Brookside Condominiums, according to the Declaration thereof'
dated September 28, 1981, and recorded in Official Records Book 373, Page 558, Orange
County Registry, and as shown on Plat Book 34,Page 87, Orange County Registry..
TMBL 4 44 B.121
PIN 9 789-40-3 736 024
Being Unit No. E-3,of*the University Gardens Condominiums, according to Plat Book 34 at
Pages 7 through 9, Orange County Registry,and also according to Declaration thereof; dated
.July 15, 1981,and recorded in Official Records Book 367 at Page 577, Orange County Registry,
together with all appurtenances thereto, all according to said Declaration of Condominium and as
amended in Book 369 at Page 533, Orange County Registry..
TMBL 7.30F E.3
PIN 9789-20-1266.066
Being all of'Unit B-6 of the University Gardens Condominiums,according to the Declaration
thereof',dated.July 15, 1981,and recorded in Official Records Book 367 at Page 5 77,Orange
County Registry,together-with all appurtenances thereto,all according to said Declaration of
Condominium, and as amended in Book 369,at Page 533,Orange County Registry,and as
shown on Plat Book 34, at pages 7 through 9, Orange County Registry
TMBL 7.30F.B.6
PIN 9789-20-1266.024
Being all of'Unit C-3 of'the University Gardens Condominiums, according to the Declaration
thereof,dated July 15, 1981,and recorded in Official Records Book 367 at Page 577,Orange
County Registry,together with all appurtenances thereto, all according to said Declaration of
Condominium, and as amended in Book 369, at Page 533, Orange County Registry,and as
shown on Plat Book 34, at pages 7 through 9, Orange County Registry,
TMBL 7.30F C.3
PIN 9789-20-1266.030
Being all of Lot #22, Allen Knight Subdivision, according to the plat and survey thereof, as
recorded in Plat Book 92, at Page 76, Orange County Registry, to which plat reference is hereby
made for a more particular-description of'the property conveyed.
TMBL 4 44.B 121
9863-86-0815
EXHIBIT B
Prepared by: Geoffrey E. Gledhill,Attorney at Law,P O Drawer-1529;Hillsborough,NC 272 78
After recording return to: Coleman,Gledhill&Hargrave,P.0 Drawer 1529; Hillsborough,NC 27278
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS (Declaration), dated
, by OPC 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 Housing Bond
funds
RECITALS:
WHEREAS, the Orange County Board of Commissioners awarded the OPC Foundation
$300,000 in FY 1997 Housing Bond funding to assist in the construction of the Club Nova
Apartments in Carrboro,NC in.Tune 2001;and;
WHEREAS, OPC Foundation submitted a letter dated November 19,2003 requesting the
reallocation of the funds from the Orange County Bond Program to provide matching funds for a
HUD Supportive Housing Program grant as well as a letter dated March 17, 2004, which are
incorporated by reference into this Agreement. The letters are on file in the office of•the Orange
County Housing and Community Development; and
WHEREAS, the Orange County Board of Commissioners approved the reallocation of
$300,000 in FY 1997 Housing Bond funding on December 9,2003;and
WHEREAS, OPC Foundation intends to purchase eight dwelling units The dwelling
units are located at 111 and 336 Ashley Forest; 529 Hillsborough St. G-1 and G-3; 800 Pritchard
Avenue B6, C3, and E3 all in Chapel Hill, NC; and 2.308 Red Bird Lane in Hillsborough, NC
(herein after referred to as "the Project dwelling units" or"the Project") The Project dwelling
units are located on properties more particularly described in EXHMIT A.attached hereto and
made a part of this Agreement(hereinafter referred to as"the Property"); and
i
WHEREAS, OPC Foundation intends to make the Project dwelling units available for-
lease to families earning up to 50%of'HUD area median income;
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
i
i
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-Proj ect Completion(defined as the last of'the following events:the Property is
acquired, rehabilitated, if' necessary, and the last of the eight Project dwelling units j
occupied by a low-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 j
hereto), the Orange County Housing Bond Program and this Declaration, Owner 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-, Owner shall obtain the written agreement, in form satisfactory to Orange
County, 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 DEVELOPMENT AGREEMENT and the Orange
County Housing Bond 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 Housing Bond 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).
Declaiation of'Restrictive Covenants
Page 2
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 Housing Bond Program affordability restrictions are terminated due to the sale of the
Property to a non-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 Reoster 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
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 thexeof'including any leasehold interest in the Property or portion thereof'.
Orange County retains the right to,periodically and every 30 year's 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 § 4713-4 or any comparable preservation law in effect at the
time of the recording of the notice of'preservation It is the intent ofthis Section that the 99 year
duration of this Declaration of Restrictive Covenants be accomplished and that any future owner-
Declaration of Restrictive Covenants
Page 3
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 ox 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 m 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 txansfer•,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 Tiansf'zi, a'Notice of Intent to
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 tight 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. Assigrxability. Orange County may assign its right of fast 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
Declalation of Restrictive Covenants
Page 4
i
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 Housing
Bond 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 Housing Bond Program, AND BY
REASON THEREOF, OWNER IN CONSIDERATION FOR RECEIVING ORANGE
COUNTY HOUSING BOND PROGRAM FUNDS FOR THE PROPERTY HEREBY AGREES
AND CONSENTS THAI 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 IN A STATE COURT OF
COMPEIEN'T 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. Sever•abilit. The invalidity of any clause,part, or provision of this Declaration shall not
affect the validity of the remaining portions thereof
Declaiation of'Restcictive Covenants
Page 5
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 patty 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 patties 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
ATIN:Director
ii, To OPC Foundation: OPC Foundation for Mental Health,Inc
101 E.Weaver-Street, Suite 300
Canboro,NC 27510
AT TN: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'Ametica..
i
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 ,
OPC Foundation for,Mental Health
President
ATTEST: J
MAMY OS. Buss NeLL, Secretary
NORTH CAROLINA
ORANGE COY
I, , 17, 7erker- ,Notary Public in and for-the above named County and
State, do hereby certify that on this day personally appeared before me , S 4,e/ with
},vho I am personally acquainted,who,being by me duly sworn, says at he i Secretary and that
y, nrS. its President of OPC Foundation for Mental Health, 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..
III I -my hand and notarial seal,this the /55 day of l 2004.
OFFICIAL SEAL /J
public,North Carolina
County of Orange
efferson D.Parker Notar 1C
#N:.,.,�
ission Expires Fab.16.2008 /
. . e i e
Declaration of'Restrictive Covenants
Page 6