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HomeMy WebLinkAbout2018-368-E Housing - Rebuilding Together development agreement NORTH CAROLINA ORANGE COUNTY DEVELOPMENT AGREEMENT This is an AGREEMENT between ORANGE COUNTY, a local governmental political subdivision of the State of North Carolina, (hereinafter referred to as the “County”) and REBUILDING TOGETHER OF THE TRIANGLE, INC., a North Carolina non-profit housing organization (hereinafter referred to as “Rebuilding Together”). The effective date of this Agreement is August 27, 2018. WITNESSTH WHEREAS, the Orange County HOME Consortium has designated $50,000 in FY 2016- 17 HOME funds and $28,538 in FY 2017-18 HOME funds, for a total of $78,538 to provide repairs and rehabilitations to low income homeowners throughout Orange County earning less than 80%, by family, of the U.S. Department of Housing and Urban Development (HUD) median area income; and WHEREAS, Orange County is the lead entity of the Orange HOME Consortium, so designated in an agreement dated July 1, 2011, and as such is the lead entity in a representative capacity for all members of the Orange HOME Consortium for the purposes of carrying out the HOME Program in accordance with the Title II of the Cranston-Gonzalez National Affordable Housing Act (Pub. L. 101-625), (42 U.S.C. 3535(d.) et. seq.) (hereinafter referred to as the "Act"), and as further defined in the Federal Program Requirements provided by the U.S. Department of Housing and Urban Development; and WHEREAS, Rebuilding Together will provide critical repairs, accessibility modifications and home performance upgrades for homeowners earning less than 80% of HUD area median income as described in the Rebuilding Together FY 2016-17 Application for Funding, Orange County HOME Program dated, January 25, 2016 and FY 2017-18 Outside Agency Common Funding Application and any attachment thereto, dated January 27, 2017 which are hereby incorporated into this Agreement as if written herein, and hereafter referred to as “The Project” or “the Projects.” A copy of both the FY2016-17 and 2017-18 HOME Program Applications are on file in the office of the Orange County Housing and Community Development Department; and WHEREAS, Rebuilding Together intends to assist at least ten (10) homeowners, who mostly are elderly, disabled, or families with children earning less than 80% of HUD area median income, to make critical repairs and rehabilitations at their principal residents; and WHEREAS, notwithstanding any provision of this Agreement, the County and Rebuilding Together hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or site approval, and that such commitment of funds or approval may occur only upon satisfactory completion of an environmental review and receipt by Orange County of a DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 Release of Funds from the U.S. Department of Housing and Urban Development under 24 CFR Part § 58 if applicable. The parties further agree that the provision of such funds to the project is conditioned on Orange County’s determination to proceed with, modify, or cancel the project based on the results of a subsequent environmental review. NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations contained herein, it is agreed between the parties hereto as follows: I. USE OF HOME FUNDS/SUBSIDY TYPE A. HOME funds shall be used to provide assistance to low-income homeowners for: the repair and rehabilitation of their principle residence, specifically critical repairs, accessibility modifications, and home performance upgrades. HOME funds shall pay for eligible hard and soft costs associated with housing rehabilitation of single-family owner- occupied dwelling units; making the units safe, decent and sanitary. B. Rebuilding Together shall perform the projects or tasks related to its allocation of HOME funds as provided in this Agreement, Exhibit A, Scope of Services and Exhibit B, Proposed Budget and Source of Funds. All Exhibits, attachments and addendums annexed hereto or referred to herein are hereby incorporated into and made a part of this Agreement as if set forth herein, as it now reads or as it may be modified by the Parties. C. HOME funds shall be in the form of a grant to Rebuilding Together and a deferred loan to the homeowner of each dwelling unit that receives assistance as part of the Project. Rebuilding Together shall secure the County’s interest in the Project with the County- provided loan documents substantially in the form of those documents listed in Exhibit C C, Orange County Loan Documents, which include a Loan Agreement (Attachment 1), Promissory Note (Attachment 2), and a Deed of Trust (Attachment 3). Failure to do so constitutes a material breach of this Agreement. D. Rebuilding Together may not request disbursement of funds under this Agreement until the funds are needed for payment of eligible costs. The amount of each request must be limited to eligible costs as determined by Orange County staff and may not exceed the amount needed. Rebuilding Together must identify the eligible dwelling units and provide that information along with the budget for the unit to the County with the request for funding. Program income must be disbursed before Rebuilding Together requests funds from the County. E. Said funds shall be disbursed by check payable to Rebuilding Together. II. AMOUNT OF HOME FUNDS/LOAN TERMS A. The County shall make available to Rebuilding Together up to of Seventy-Eight Thousand Five Hundred and Thirty-Eight Dollars ($78,538) pursuant to this Agreement. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 1. The HOME funds provided to Rebuilding Together by the County will be provided to the homeowner as a fixed subsidy in the form of an interest free, deferred second mortgage to pay eligible costs associated with the rehabilitation of the homeowner’s primary residence. After payment of costs of rehabilitation or improvement, any excess proceeds shall revert to County for funding other deferred loans under the grant program and the loan amount shall be credited accordingly. The investment will be secured by a Deed of Trust and Promissory Note, forgivable at the end of the applicable HOME affordability period, described in Table 1-1 below, to be identified in the Loan Documents for each assisted unit: Table 1-1: Determining the HOME Period of Affordability HOME Assistance per Unit or Buyer Length of the Affordability Period Less than $15,000 5 years $15,000 - $40,000 10 years More than $40,000 15 years New construction of rental housing 20 years Refinancing of rental housing 15 years 2. This Deed of Trust and Promissory Note shall constitute a lien on the properties on which the assisted units are located. In order to secure the Promissory Note, the Deed of Trust, naming the County as a beneficiary, must be executed and recorded in the Orange County Registry against the property being improved. Rebuilding Together shall facilitate the loan closing, using the Orange County Loan Documents, and record the Deeds of Trust in the Orange County Registry. 3. The County agrees to subordinate its Deed of Trust lien to a lien securing private permanent financing acquired by the homebuyer. B. Said funds shall be disbursed by the County to Rebuilding Together for performance of the services described in Exhibit A. III. LIEN POSITION Orange County hereby acknowledges that the terms and conditions of its (i) HOME Program Development Agreement, (ii) Loan Agreement (iii) Promissory Note, and (iv) Deed of Trust (collectively referred to as “Orange County Loan Documents”), are not expressly subordinated to any other documents except those documents described in § II.A.3. IV. TIMELINESS Owner shall complete the Project within twelve (12) months from the date of this Agreement. However, in the event of any alterations or additions or circumstances beyond the control of the Owner, which in the opinion of the Director of the County’s Department of Housing and Community Development will require additional time for completion of the Project, then in that DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 case, the time of completion shall be extended by the County Manager in writing for a period of time not to exceed six (6) months. Any further extensions will require the approval of the Orange County Board of County Commissioners. V. DURATION OF THE AGREEMENT This Agreement will remain in effect for the Period of Affordability. Upon termination or expiration of this Agreement, Rebuilding Together shall transfer to the County any HOME funds on hand at the time of expiration and accounts receivable attributable to the use of HOME funds. VI. AFFORDABILITY REQUIREMENTS Housing assisted with HOME funds under this Agreement must meet the affordability requirements of 24 CFR 92.254. Each of the Project dwelling units must remain affordable during the Period of Affordability as specified in the HOME Program regulations and the Orange County Loan Documents. Rebuilding Together shall retain full responsibility for informing homeowners of the affordability requirements for receipt of HOME funds, which shall be imposed by the Orange County Loan Documents. The Loan Documents shall constitute and remain a lien on each improved property during the entire applicable Period of Affordability. VII. REBUILDING TOGETHER PERFORMANCE UNDER THIS AGREEMENT A. Rebuilding Together agrees that the estimated property value of the improve property, after rehabilitation, may not exceed ninety-five percent (95%) of the area median purchase price for the area. Rebuilding Together agrees to assess the value prior to performing any work and to provide such assessment to the County. B. Rebuilding Together agrees to invest a minimum of $1,000 in HOME funds per each assisted dwelling unit as part of the Project. C. Rebuilding Together agrees that the assisted dwelling units shall meet all State and local housing quality standards and code requirements once rehabilitation or reconstruction is complete. If no such standards or codes apply, the improved property must at a minimum meet the HUD Section 8 Housing Quality Standards. D. Rebuilding Together agrees not to charge servicing, origination, or other fees for the costs of administering the HOME program, except as permitted by 24 CFR § 92.214(b)(1). E. Rebuilding Together agrees and authorizes the County to conduct on-site reviews, examine client and contractor records, client applications and to conduct any other procedures or practices to assure compliance with these provisions. F. Rebuilding Together agrees to not violate any State or Federal laws, rules or regulations regarding a direct or indirect illegal interest on the part of any employee or elected DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 official of Rebuilding Together in the Project or payments made pursuant to this Agreement. G. Rebuilding Together agrees that to the best of its knowledge, neither the Project nor the funds provided therefore, and the personnel employed in the administration of the program shall be in any way or to any extent engaged in the conduct of political activities in contravention of Chapter 15 of Title 5, United States Code, referred to as the Hatch Act. H. Rebuilding Together shall adopt the audit requirements of the Office of Management and Budget (hereinafter "OMB") Circular A-110, "Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Nonprofit Organizations," and Circular A-122, "Cost Principles for Nonprofit Organizations," and OMB Circular A-133, "Audits of Institutions of Higher Education and Other Non-Profit Institutions." Rebuilding Together shall submit to the County copy of said audit report. Rebuilding Together shall permit the authorized representatives of the County, HUD and the Comptroller General of the United States to inspect and audit all data and reports of Rebuilding Together relating to its performance under the Agreement. I. County shall provide, upon request, copies of all laws, regulations and orders cited in this Agreement. J. Rebuilding Together and County shall at all times observe and comply with Title 24 CFR Part 92 and all applicable laws, ordinances or regulations of the Federal, State, County, and local government, which may in any manner affect the performance of this Agreement, and Rebuilding Together shall perform all acts with responsibility to the County in the same manner as the County is required to perform all acts with responsi- bility to the Federal government. K. Rebuilding Together hereby assures and certifies that it will comply with the regulations, policies, guidelines and requirements with respect to the acceptance and use of HOME funds in accordance with the policies of the County. Also, Rebuilding Together certifies with respect to the Project that it will be conducted and administered in compliance with: 1. Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352, 42 U.S.C.§§ 2000d et seq.) and implementing regulations issued at 24 CFR Part I; 2. Title VIII of the Civil Rights Act of 1968 (Pub. L. 90-208, 42 U.S.C. §§ 2000d at seq.), as amended; and that Rebuilding Together will administer all programs and activities related to housing and community development in a manner to affirmatively further fair housing; 3. Section 109 of the Housing and Community Development Act of 1974, as amended; and the regulations issued pursuant hereto; 4. Section 3 of the Housing and Urban Development Act of 1968, as amended; DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 5. Executive Order 11246-Equal Opportunity, as amended by Executive Orders 11375 and 12086, and implementing regulations issued at 41 CFR Chapter 60; 6. Executive Order 11063-Equal Opportunity in Housing, as amended by Executive Order 12259, and implementing regulations at 24 CFR Part 107; 7. Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended, and implementing regulations when published in effect; 8. The Age Discrimination Act of 1975 (Pub. L. 94135), as amended, and implementing regulations when published for effect; 9. The Fair Housing Act (42 U.S.C. 3601-20); VIII. ADMINISTRATION AND REPORTING REQUIREMENTS Rebuilding Together shall submit to the County a quarterly Progress Report no later than the fifth day of the months of January, April; July; October until the activity has been reported completed. IX. MISCELLANEOUS PROVISIONS A. Program Income. Program income as defined in 24 CFR § 92.2 shall be remitted to the County. B. Uniform Administrative Requirements. Rebuilding Together must comply with the applicable uniform administrative requirements of 24 CFR §92.505 and 24 CFR, Part 84, specifically the following requirements of 24 CFR Part 84 which apply to subrecipients receiving HOME funds that are private nonprofit organizations: 84.2, 84.5, 84.13 – 84.16, 84.21, 84.22, 84.26 – 84.28, 84.30, 84.31, 84.34, 84.37, 84.40 – 84.48, 84.51, 84.60 – 84.62, 84.72, and 84.73. C. Other Program Requirements. Rebuilding Together must carry out each activity in compliance with all Federal laws and regulations described in 24 CFR, Part 92, subpart F for rehabilitation projects and 24 CFR, Part 92, subpart H except that the subrecipient does not assume the responsibilities for environmental review or intergovernmental review. D. Affirmative Marketing. If HOME funds will be used for housing containing five (5) or more assisted units, Rebuilding Together must prepare and submit an Affirmative Marketing Plan to the County, in accordance with 24 CFR 92.351. E. Termination; Remedies. In accordance with 24 CFR 85.43, suspension or termination may occur if Rebuilding Together materially fails to comply with any term of the Agreement. Remedies for breach of the provisions of this Agreement include but are not limited to DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 repayments of any funds deemed to be expended in an ineligible manner. This Agreement may be terminated for convenience accordance with 24 CFR 85.44. F. Books and Records. Rebuilding Together 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. 1. Rebuilding Together shall ensure access to records and financial statements, as necessary, to provide effective monitoring and evaluation of project performance. Additionally, Rebuilding Together shall submit a copy of its annual audit to the County. 2. Upon reasonable advance notice, County or its authorized representatives may from time to time inspect, audit, and make copies of any of Rebuilding Together records that relate to this contract. If any audit by County discloses that payments to Rebuilding Together were in excess of the amount to which Rebuilding Together was entitled under this contract, Rebuilding Together shall promptly pay to County the amount of such excess. If the excess is greater than 1% of the contract amount, Rebuilding Together shall also reimburse County its reasonable costs incurred in performing the audit. 3. Rebuilding Together shall maintain files of all homebuyers, regardless of length of occupancy, residing in assisted units. Documentation shall verify eligibility for federal assisted housing at the point of initial purchase. 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. 4. Rebuilding Together shall maintain records verifying the affordability of the dwelling units. G. Notices. Any Notice shall be in writing and shall be given by depositing the same in the United States mail, post-paid and registered or certified, and addressed to the party to be notified, with return-receipt requested, or by delivering the same in person to an officer or principal of such party. Notice deposited in the mail in the manner here in above described shall be effective upon mailing. For purposes of Notice, the addresses of the parties shall, unless changed as hereinafter provided, be as follows: 1. To the County: Orange County c/o Housing and Community Development Department P.O. Box 8181 Hillsborough, NC 27278 ATTN: Director 2. To Rebuilding Together: Rebuilding Together for the Triangle, Inc. 324 S. Wilmington Street #118 DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 Raleigh, NC 27601 ATTN: Executive Director Neither the County nor Rebuilding Together may change the person or address to which any future Notice shall be given as herein provided. H. No Assignment. No transfer or assignment of the interest of Rebuilding Together on this Agreement shall occur without the prior written consent of the County; neither may Rebuilding Together assign this Agreement without the prior written consent of County. I. Conflict of Interest. Rebuilding Together agrees to abide by the provisions of 24 CFR 570.611 with respect to conflicts of interest, and covenants that it presently has no financial interest and shall acquire any financial interest, direct or indirect, that would conflict in any manner or degree with the performance of services required under this Agreement. Rebuilding Together further covenants that in performance of this Agreement no person having such a financial interest shall be employed or retained by Rebuilding Together 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 HOME Investment Partnership Program. J. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. K. Indemnification. To the extent legally possible, Rebuilding Together 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 Rebuilding Together, its employees, agents, officers, and contractors in connection with this contract. In the event any such action or claim is brought against County, Rebuilding Together shall, upon County's tender, defend the same at Rebuilding Together’s sole cost and expense, promptly satisfy any judgment adverse to County or to County and REBUILDING Together jointly, and reimburse the County for any loss, cost, damage, or expense, including attorney fees suffered or incurred by the County. L. Subcontracting. Rebuilding Together shall not subcontract work under this Agreement, in whole or in part, without the County's prior written approval. Rebuilding Together 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 Rebuilding Together specified in this contract. Notwithstanding County's approval of a subcontractor, Rebuilding Together shall remain obligated for full performance of this contract and County shall incur no obligation to any subcontractor. Rebuilding Together shall indemnify, defend, and hold County harmless from all claims of its contractors. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 M. No Joint Venture or Agency. The County and Rebuilding Together each agree and acknowledge that nothing contained herein or otherwise, including, without limitation, any act of the County and Rebuilding Together under this Agreement, shall be deemed or construed to create any relationship of joint venture, partnership or agency between the parties. N. Effect of Waiver or Forbearance. No failure by the County to insist upon the strict performance of any term or condition of this Agreement, or to exercise any right or remedy upon the breach by Rebuilding Together 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 Rebuilding Together be a waiver by the County of its rights and remedies with respect to that or any other breach. O. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of North Carolina. Any litigation arising out of this Agreement shall be brought in courts sitting in North Carolina, with venue in Orange County. P. Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by the fact that for any reason any other provision may be invalid or unenforceable in whole or in part. 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 Rebuilding Together 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 Rebuilding Together cannot agree, they shall apply to a court of competent jurisdiction to substitute such provision as the court deems reasonable and judicially valid, legal and enforceable. Such provision determined by the court shall automatically be deemed part of this Agreement ab initio. Q. Equal Opportunity. Rebuilding Together shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, political affiliation or belief, age, handicap, or familial status in the implementation of the Project. R. Headings. Headings are for convenience only and shall not be used to interpret or construe its provision. S. Gender; Singular and Plural. As used herein, the neuter gender includes the feminine and masculine. The masculine includes the feminine and neuter, and the feminine includes the masculine and neuter and each includes a corporation, partnership or other legal entity when the context so requires. The singular number includes the plural and vice versa, whenever the context so requires. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 T. Recording. The parties hereto agree that upon notice to the other and at its own cost and expense, a party may record this Agreement in the Office of Register of Deeds for Orange County. U. Compliance with Laws. To the extent applicable, each party hereto agrees to comply with all laws, ordinances and regulations affecting the Project from and after the date hereof. Without limiting the generality of the foregoing, Rebuilding Together shall comply with all federal, state and local laws, regulations and ordinances applicable to the expenditure of funds provided by the County, in the implementation of the Project. V. Publicity; Signage. Rebuilding Together agrees to provide such publicity with respect to the County's participation in the Project as the County shall reasonably require. Any signage at the Project site(s) shall acknowledge the County's role and contribution. W. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute on and the same instrument. X. No Third Party Rights. The parties hereto covenant and agree that nothing contained in this Agreement or any act by the County or Rebuilding Together 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, Rebuilding Together or any of their respective officers, agents or employees by any third party. Y. Performance of Government Functions. Notwithstanding anything in this Agreement which may be to the contrary, nothing contained in this Agreement shall in any way stop, limit or impair the County from exercising or performing any regulatory, policing or governmental powers or functions with respect to the Project including, without limitation, inspection of the Project site(s) in the performance of such functions. Z. Duration of Agreement. This Agreement shall be effective on the date of execution and shall remain in effect during the period of affordability required by the Act under 24 CFR Part 92. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have set their hands and seals on the day and year first above written. REBUILDING TOGETHER OF THE TRIANGLE, INC. _________________________________ Daniel Sargent, Executive Director DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 ORANGE COUNTY, NORTH CAROLINA ________________________________ Bonnie Hammersley, County Manager ATTEST: ____________________________ Donna Baker Clerk to the Board of Commissioners This document has been pre-audited in accordance with the N.C. Local Government and Fiscal Control Act. Gary Donaldson, Finance Director _____________________________ Approved as to form and legality: ______________________________ Anne Marie Tosco, Staff Attorney DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 EXHIBIT A SCOPE OF SERVICES HOME funds will be used to provide critical repairs, accessibility modifications, and home performance upgrades to low-income homeowners throughout Orange County earning less than 80% of the area median income using FY 2016-17 and FY 2017-18 funds. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 Exhibit B PROPOSED BUDGET Proposed Uses of Funds Housing Rehabilitation 2016-17 $ 50,000 2017-18 $ 28,538 Total Uses of Funds $ 78,538 Sources of Funds Orange County 2016-17 HOME funds $ 50,000 Orange County 2017-18 HOME funds $ 28,538 Total Sources of Funds $ 78,538 Rebuilding Together may not request disbursement of funds under this Agreement until the funds are needed for payment of eligible costs. The amount of each request must be limited to eligible costs as determined by the County’s Housing and Community Development Department (“HCD”). Funds may be shifted between line items of the Project without prior approval of the County only to the extent of “Minor Adjustments,” defined as actions which do not result in a change in the Project and so long as such Minor Adjustments do not exceed ten percent (10%) of the line item total from which the funds are being removed or to which the funds are being added, there is no increase to the Total Renovation Cost specified in the above budget, and there are only minor changes to the Plans and Specifications. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 Exhibit C Attachment 1 STATE OF NORTH CAROLINA ORANGE COUNTY HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME) ORANGE COUNTY HOME CONSORTIUM A qualified HOME Program Consortium DEFERRED LOAN AGREEMENT THIS AGREEMENT, made this ____day of ____________, _____ by and between _____________________ and ________________________ (“Owner”) OWNERS; and Orange County, a local political subdivision of the State of North Carolina located in Orange County, North Carolina (“County”). RECITALS WHEREAS, Rebuilding Together of the Triangle, Inc. (“Contractor”) has received a HOME Investment Partnership funds to assist Orange County homeowners earning less than 80% of HUD’s area median income, to make critical repairs and rehabilitation of their principal residence; and WHEREAS, the Owner’s principal residence located at, ______________, and more particularly described in Attachment A, Legal Description is need of funds to make critical repairs or rehabilitation of their principal residence (“Project”); and WHEREAS, County has agreed to provide the Owner with a deferred loan, forgivable at the end of the term of the loan (“the Loan”) to make critical repairs or rehabilitation of Owner’s principal residence as provided in Attachment B, Scope of Work and Budget. NOW THREREFORE, County and Owner agree to the following terms and conditions: AGREEMENT 1. LOAN. The amount of the Loan is $__________. All properly authorized change orders will be incorporated herein as an attachment hereto and must be signed by the Homeowner, the Housing and Community Development Director, the Finance Director and the Contractor. 2. RECEIPT AND DISBURSEMENT OF LOAN FUNDS. Contractor shall receive Loan funds on behalf of Owner from the Orange County HOME Funds. County shall DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 disburse the Loan funds to the Contractor, to pay for the rehabilitation or improvements in accordance with the terms of the Contract for Rehabilitation Work. After payment of costs of rehabilitation or improvement, any excess proceeds shall revert to County for funding other deferred loans under the grant program and the Loan amount shall be credited accordingly. 3. USE OF HOME FUNDS. The Owner and the Contractor agree that the HOME assistance will be used to pay only the costs of rehabilitating or reconstructing the Owner’s home, including hard costs (actual costs of construction) and soft costs (cost associated with construction, including the environmental review of the Property, evaluating the Property to determine the scope of work to be performed, inspecting the Property for compliance with the work specifications and applicable codes). 4. PRINCIPAL RESIDENCE REQUIREMENT. This agreement shall remain in force throughout the affordability period as long as the home remains the principal residence of the Owner. Should the Owner not maintain the home as his/her principal residence, or rent or sell the residence to another party, the Owner will be in breach of this agreement and will be required to repay any amount that has not yet been forgiven, as set forth in Section 13 of this Agreement, as of the day the home is no longer the principal place of residence of the Owner. 5. LOW INCOME OWNER. The Owner attests, and the Contractor has verified, that the Owner qualifies as a low-income individual or household as defined by the HOME Program. “Low-income” is defined as an individual or household whose total income does not exceed 80% of the Area Median Income (AMI) as defined by HUD. 6. HOUSING DETERMINED TO BE MODEST. The Owner agrees and the Contractor has verified that the purchase price of the housing does not exceed 95 percent (95%) of the median purchase price of homes for the area, as set forth in 24 CFR Part 92.254(a). 7. INSURANCE REQUIREMENT. The Owner must at all times during the duration of this Agreement maintain a valid and current insurance policy on the home for the current appraised or assessed value of the home. Failure to maintain a valid and current insurance policy will be considered a breach of this Agreement, and the County will have the right to foreclose on its mortgage lien if necessary to protect the HOME Program investment. 8. PROPERTY STANDARDS. Pursuant to HOME Program rules, the property that is the subject of this AGREEMENT must meet all State and local housing quality standards and code requirements once rehabilitation or reconstruction is complete. If no such standards or codes apply, the property must at a minimum meet the HUD Section 8 Housing Quality Standards. 9. OCCUPANCY AND PROTECTION OF PROPERTY. During the construction, the Owner shall take reasonable precautions to protect the Owner and his or her family and their property. The Owner shall not interfere with the construction. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 10. RIGHT TO INSPECTION. County, representatives of the State of North Carolina and the United States of America shall have the right to inspect the Owner's premise during reasonable hours to determine if the rehabilitation is being properly accomplished. 11. NONDISCRIMINATION. The Owner shall not discriminate upon the basis of race, color, creed, or national origin, in the sale of the rehabilitated or improved property. 12. HOLD HARMLESS. The Owner agrees to save, indemnify and hold harmless County from any and all claims for damages, or personal injury, arising from the rehabilitation or improvement work. 13. AMORTIZATION OF LOAN, SALE OF PROPERTY. The Loan shall be forgiven at the rate of ______% per year; however, if the Owner sells or conveys all or any portion of the property within _______months following the date of this Agreement, a prorated portion of the Loan shall immediately become due and payable and the Owner shall be liable to County to repay the prorated portion together with the costs of collection, if required, including court costs and reasonable attorney fees. The amount to be repaid shall be computed as follows: a. If the sale or conveyance occurs one year of the date of this Agreement, the entire amount of the deferred Loan shall immediately be repaid to County; b. If the sale or conveyance occurs one year of more after the execution of this Agreement, the deferred Loan shall be forgiven by the County at the rate of______% of the initial deferred Loan amount for each full year following the execution of this Agreement that no sale or conveyance or violation of the terms and provisions of this Loan has been made with the remaining balance of the deferred Loan being immediately due and payable to County. c. The terms "Sale" or "Conveyance" do not include the following: i. The creation of a lien or an encumbrance; ii. The creation of a purchase money security interest in the property for household appliances, fixtures, or equipment; iii. The conveyance to members of the Owner's immediate family provided the grantee's live in the same household as the owner; or; iv. The devise by will or by Interstate succession of the property to a member of the Owner's immediate family upon the death of the Owner and the Owner meets the HUD income eligibility limits. d. UPON THE EXPIRATION OF ______months following the date of this Agreement, the OWNER shall have no further obligation to repay any sums to ORANGE COUNTY provided the OWNER has complied with all other terms of this Agreement or any other Agreement related to the HOME Investment Partnership Deferred Loan Program. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 14. OWNERSHIP. The OWNER certifies that he is the OWNER of the property described in ORANGE COUNTY TAX MAP _________________________________. 15. RESPONSIBILITIES OF THE CONTRACTOR A. The Contractor shall act on behalf of the Owner, as may be required, to facilitate the work being completed. Such actions include procuring the services of qualified contractors experienced in the type of work required under the HOME Program. B. Inspect the work being performed by contractors during the rehabilitation process to ensure compliance with work specified in the work write-up. C. To approve periodic and final payment to contractors for performance of satisfactory work in accordance with the Contractor Rehabilitation Agreement. 16. BINDING NATURE. This Agreement shall be binding upon the parties hereto, their successors and assigns. [SIGNATURE PAGE TO FOLLOW] DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 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. OWNERS ________________________________________ ________________________________________ REBUILDING TOGETHER OF THE TRIANGLE, INC. _________________________________ Daniel Sargent, Executive Director ORANGE COUNTY, NORTH CAROLINA ________________________________ Bonnie Hammersley, County Manager DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 ATTACHMENT A Legal Description DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 ATTACHMENT B Project Scope of Work and Budget DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 Exhibit C Attachment 2 HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME) ORANGE COUNTY HOME CONSORTIUM A qualified HOME Program Consortium PROMISSORY NOTE (OWNER-OCCUPIED CONSTRUCTION OR REHABILITATION PROJECT) (DEFERRED PAYMENT LOAN) STATE OF NORTH CAROLINA $_______________________ COUNTY OF ORANGE ________________________ _______________, 20_____ FOR VALUE RECEIVED, the undersigned (the "Borrower") jointly and severally promise(s) to pay to the order of (the "Holder") Orange County the principal amount of ____________________________________________________($________) according to the following terms, at the office of the Orange County Housing and Community Development Office, 200 S. Cameron Street, Hillsborough, N.C. 27278, or at such other place, or to such other party as the holder of this Note may from time to time designate in writing. 1. LOAN. This Note evidences a loan (the "Loan") made by Holder to Borrower under the National Affordable Housing Act, HOME Investment Partnerships Program (HOME) to construct or rehabilitate a single-family dwelling unit. The Holder is obligated under the terms of this Note, the Deed of Trust and the HOME Program to establish a time period within which the dwelling unit rehabilitated with the proceeds of the loan shall continuously qualify as affordable housing under the provisions of 24 CFR 92.254 and shall extend _____ years from the date of this Note, and shall hereinafter be called the "Period of Affordability". The Loan is secured by a Deed of Trust to John Roberts, Trustee, dated the same date as this Note, and which conveys the property in Orange County, North Carolina, and which Deed of Trust is to be registered in Orange County and is a lien on the property described in the said Deed of Trust. All terms of the Deed of Trust are incorporated in this Note by reference, as if fully set forth herein, and any default under the Deed of Trust or as otherwise outlined herein shall constitute a default under this Note. 2. TERM. The term of the Loan shall be from the date of this Note until the earlier of (i) the date the balance due is paid in full or (ii) the first day of the month first occurring ____ years after the recordation date of the Deed of Trust as designated below. A "Loan Year" shall be each twelve (12) month period commencing on the date of this Note and on each subsequent anniversary of the date hereof. 3. PAYMENT. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 a. During the term of this Note, Borrower shall make no payment of principal and interest; provided that if Borrower shall be in default of any of the terms of this Note, Deed of Trust, or then the entire outstanding balance of this Note, together with interest thereon as set forth herein, shall become immediately due and payable. The amount owed under this Note shall be repaid as required in the provisions below. Interest on the unpaid balance after default shall be due and payable at the rate of five percent (5%) per annum on the outstanding balance. b. The amount owed under this Note shall, at the option of the Holder, become due and payable on the occurrence of any of the following events during the Period of Affordability: i. The Property is sold, transferred or otherwise alienated by Borrower whether voluntary or involuntary, or by operation of law, without the prior written consent of Holder, or ii. Default under any of the terms of this Note, the Deed of Trust, or iii. Property ceases to be occupied by Borrower, including upon the death of the Borrower. c. Unless accelerated in the event of Borrower's default, at each anniversary date the balance due under this Note shall be reduced by _____ percent (______%) per year of the original principal amount of the Loan, and the term of the per year loan shall be ______ years. 4. TRANSFER OR DEFAULT. a. In the event the transfer or default occurs during the first Loan Year, the entire loan amount shall become due and payable by the Borrowers or their heirs or assigns. b. In the event the transfer or default occurs during any subsequent loan year during the Period of Affordability, the amount due shall be reduced by the product obtained by multiplying the number of full of loan years that have elapsed by the quotient obtained by dividing the loan amount by the number of years of the Period of Affordability. c. In the event the transfer or default occurs after the Period of Affordability, the amount due shall be extinguished, and the Borrower shall be entitled to a cancellation of this Note and Deed of Trust without payment. 5. All parties to this Note, whether principal, surety, guarantor or endorser, hereby waive presentment for payment, demand, notice of protest and notice of dishonor, and further waive any other person or property. All parties further agree that without notice to any party and without affecting any party's liability, Holder, at any time or times, may grant extensions of the time for payment or other indulgences to any party or permit the renewal, amendment or modification of this Note, and may add or release any party primarily or secondarily liable. 6. ASSUMPTION. The Loan may be assumed only upon the prior written approval of the Holder. Any and all terms and conditions of this Note and Deed of Trust shall remain in full force and effect for any successor to Borrower and any successor shall assume all duties and obligations of the Borrower. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 7. DEFAULT. Upon default, Holder may employ any attorney to enforce Holder's rights and remedies, and the Borrower hereby agrees to pay to Holder all reasonable attorney's fees, plus all other reasonable costs and expenses, including court costs, incurred by Holder in exercising any of Holder's rights and remedies upon default. The rights and remedies of Holder as provided by law, by this Note and by the Deed of Trust shall be cumulative and may be pursued singly, successively, or together in the sole discretion of Holder. The failure to exercise any such right or remedy shall not be a waiver or release of such rights or remedies or the right to exercise any of them at another time. 8. GOVERNING LAW. This Note is to be governed and construed in accordance with the laws of the State of North Carolina. IN TESTIMONY WHEREOF, Borrower has executed this instrument under seal on the date first above written. WITNESS: INDIVIDUAL MAKER: _________________________ _________________________(SEAL) _________________________ _________________________(SEAL) This document has been preaudited in accordance with the N.C. Local Government and Fiscal Control Act. ____________________________ Gary Donaldson, Finance Director Approved as to form and legality ____________________________ Anne Marie Tosco, Staff Attorney DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 Exhibit C Attachment 3 Prepared by: Annette Moore, Orange County Attorney’s Office, P.O. Box 8181, Hillsborough, NC 27278 Return to: Orange County Housing & Community Development Department, P.O. Box 8181, Hillsborough, NC 27278 NORTH CAROLINA ORANGE COUNTY HOME INVESTMENT PARTNERSHIPS PROGRAM ORANGE COUNTY HOME CONSORTIUM A qualified HOME Program Consortium DEED OF TRUST THIS DEED OF TRUST, (the "Deed of Trust") is made as of this _____ day of ____________, ______ by and among _______________(hereinafter referred to as “Grantor”), John Roberts (hereinafter referred to as "Trustee"), and the Orange County Housing and Community Development Department whose principal address is 300 West Tryon Street, Hillsborough, N.C. 27278 (hereinafter referred to as "Beneficiary"). WITNESSETH: WHEREAS, Grantor is indebted to the Beneficiary for money to be loaned pursuant to the National Affordable Housing Act, HOME Investment Partnerships Program (HOME), and a Loan Agreement entered into by and between Grantor and Beneficiary of even date herewith (the DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 "Loan Agreement") the provisions of which are incorporated herein by reference as fully and to the same extent as if recited herein in full; and WHEREAS, Grantor has executed and delivered to the Beneficiary a Promissory Note of even date herewith in the principal sum of ___________________(_______) the "Note"); and WHEREAS, the Grantor authorizes up to $2,500 in change orders over and above the principal amount of the Note without an amendment to the Deed of Trust; any such change order must be in writing and signed by the Grantor (Owner), an Orange County Housing, Human Rights and Community Development Department Representative, and the Contractor; any such change order shall be further evidenced by a promissory note or promissory notes (referred to in the Deed of Trust as "Change Order Note"), in substantially the same form as the Note, reciting that its repayment is secured by this Deed of Trust; and WHEREAS, this Deed of Trust is given wholly secure future obligations which may be incurred hereunder pursuant to the provision of Section 45-67 et seq. of the North Carolina General Statues; the amount of present hereunder is _______________ ($_________); the maximum amount (including present as well as future advances) to be advanced hereunder shall not exceed the face amount of the Note and any Change Order Note provided such future obligations are incurred not later than _____________ ; and no execution of a written instrument or notation shall be necessary to evidence or secure any future advances made hereunder; and WHEREAS, to induce the making of the loan secured hereby (the "Loan"), Grantor has agreed to secure the Note and interest thereon together with any future advances and the undertakings described in the Note and any change order note, Loan Agreement, and this Deed of Trust by the conveyance of the premises hereinafter described. NOW, THEREFORE, in consideration of the loan evidenced by the Note and any change order note, Grantor hereby grants and conveys to Trustee, his successors and assigns, the following described premises located in ___________Township, Orange County, North Carolina more particularly described on Exhibit A, attached hereto and made a part hereof, together with all improvements, fixtures, equipment and all other real and personal property of every kind and nature now or hereafter attached to or used in connection with the premises (hereafter collectively referred to as "Premises") TO HAVE AND TO HOLD the same with all privileges and appurtenances thereunto belonging to the Trustee, his successors and assigns, upon the trusts and for the purposes hereinafter set out. Grantor covenants with the Trustee that the Grantor is seized of; and has the right to convey, the Premises, in fee simple; that the Premises are free and clear of all encumbrances, except as described on Exhibit B, attached hereto and made a part hereof; and that Grantor will warrant and defend title to the Premises against the lawful claims of all persons whomsoever. GRANTOR COVENANTS with Trustee and Beneficiary (and their respective heirs, successors and assigns) as follows: DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 1. Note and any Change Order Note: Where applicable, the Grantor shall make timely payments of principal and interest on the Note and any Change Order Note in the amounts, in the manner and at the place set forth therein. This Deed of Trust secures payment of the Note according to its terms, which are incorporated herein by reference. 2. Taxes. Grantor shall pay all taxes, charges and assessments which may become a lien upon the Premises hereby conveyed before any penalty or interest accrues thereon and shall promptly deliver to Beneficiary official receipts evidencing payment thereof. In the event of the passage after the date of this Deed of Trust of any law changing in any Way the laws now in force for state or local taxation of mortgages, deeds of trust or debts secured thereby, or the manner of the collection of any such taxes, so as to affect this Deed Trust, the whole principal sum (together with interest) secured by this Deed of Trust shall at the option of Beneficiary without notice become immediately due and payable. 3. Insurance. Unless waived in writing by Beneficiary, Grantor shall continually maintain insurance against loss by fire, with special causes of loss, and such other hazards as Beneficiary may require in such a manner and in such companies as Beneficiary may from time to time require on the improvements now or hereafter located on the Premises and shall promptly pay all premiums, thereof, when due. All insurance policies and renewals thereof shall be held by Beneficiary and have attached thereto a loss payable clause in favor or and in a form acceptable to Beneficiary, and provide that no such policy can be canceled without ten days prior notice to beneficiary. In the event of loss Grantor shall give immediate notice by mail to Beneficiary, who may make proof of loss. Each insurance company is hereby directed to make payment for such loss directly to Beneficiary (instead of to Grantor and Beneficiary jointly), and the insurance proceeds or any part thereof may be applied by Beneficiary at its option to the debt hereby secured or for the repair or restoration of the Premises. If the insurance proceeds are applied to the debt, it may be as Beneficiary may desire. In the event of foreclosure of this Deed of Trust or other transfer of title to the Premises in extinguishment of the indebtedness secured hereby, all right, title and interest of Beneficiary in any such insurance policies than in force shall pass to the grantee. 4. Escrow Deposits. Upon demand of Beneficiary, Grantor shall add to each monthly or other period payment required under the Note and any Change Order Note secured hereby the amount estimated by Beneficiary to be sufficient to enable Beneficiary to pay, as they come due, all taxes, charges, assessments, and insurance premiums which Grantor is required to pay hereunder. Any deficiency occasioned by an insufficiency of such additional payments shall be forthwith deposited by Grantor with Beneficiary upon demand. 5. Repairs. Grantor will keep the Premises in good order and repair (reasonable wear and tear excepted) and will not commit or permit any waste or other loss whereby the value of the Premises might be impaired. Grantor shall not cut timber on the Premises nor sell the timber rights without the written consent of Beneficiary. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 6. Compliance with Laws. Grantor shall promptly comply with any applicable legal requirements of the State of North Carolina or other governmental entity, agency or instrumentality relating to the use or condition of the Premises. 7. Condemnation Award. Any award for the taking of, or damages to, all or any part of the Premises or any interest therein upon the lawful exercise of power of eminent domain shall be payable to Beneficiary who may apply the sums so received to the portion of the debt hereby secured last falling due or in such other manner as Beneficiary may desire, subject to applicable law. 8. Payments by Beneficiary. If Grantor shall be in default in the timely payment or performance of any obligation under this Deed of Trust, the Loan Agreement or the Note and any Change Order Note, Beneficiary, at its option may pay the sums for which Grantor is obligated. Further, Beneficiary, at its option, may advance, pay or expend such sums as may be proper and necessary for the protection of the Premises and the maintenance of this trust including but not limited to sums to satisfy taxes or other levies, and assessments and/or liens, to maintain insurance (including title insurance), to make repairs and to provide security guards. Any amounts so advanced, paid or expended shall be deemed principal advances secured by this Deed of Trust (even though when added to other advances the sum thereof may exceed the face amount of the Note) , shall bear interest from the time advanced, paid or expended at the rate prescribed in the Note and any Change Order Note and secured by this Deed of Trust and its payment enforced as if it were a part of the original debt. Any sum expended, paid or advanced under this paragraph shall be a Beneficiary's sole option and shall not constitute a waiver of any default or right arising from the breach by Grantor of any covenant or agreement contained herein or in the Note or Loan Agreement. 9. Rents and Profits. Where applicable the Grantor hereby assigns to Beneficiary all rents and profits from the Premises as additional security for the payment of the indebtedness hereby secured and full performance of the undertakings of Grantor hereunder. Beneficiary is given a prior and continuing lien thereon, and Grantor hereby appoints Beneficiary his attorney to collect such rents and profits with or without suit and apply the same (less expenses of collection) to the indebtedness secured hereby and the performance of the undertakings provided herein in such manner as Beneficiary may desire. However, until default hereunder or under the Note and any Change Order Note, Grantor may continue to collect and enjoy such rents and profits without accountability to Beneficiary. This assignment shall be irrevocable and shall be in addition to other remedies herein provided for in the event of default and may be put into effect independently of or concurrently with any of said remedies. 10. Grantor's Continuing Obligation. At the option of the Beneficiary, Grantor shall remain liable for full payment of the principal and interest on the Note and any Change Order Note (or any advancement or obligation), notwithstanding any of the following: (a) The sale of all or part of the Premises; (b) the assumption by another party of the Grantor's obligation hereunder; DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 (c) the forbearance or extension of time of payment or performance of any obligation hereunder, whether granted to Grantor or a subsequent owner of the Premises; and (d) the release of all or any part of the premise securing said obligations or the release of any party who assumes payment of the same. None of the foregoing shall in any way affect the full force and effect of the lien of this Deed of Trust or impair Beneficiary's right to a deficiency judgment (in the event of foreclosure) against Grantor or any party assuming the obligations hereunder. 11. Substitute Trustees. Beneficiary shall have the unqualified right to remove the Trustee and to appoint one or more substitute or successor trustees by instruments filed for registration in the Office of the Register of Deeds where this Deed of Trust is recorded. Any such removal or appointment may be made at any time without notice, without specifying any reason therefore and without any court approval. Any such appointee shall become vested with title to the Premises and with all rights, powers and duties conferred upon the Trustee herein in the same manner and to the same effect as thought he were named herein as the original Trustee. 12. Late Charge. Late charges may be assessed by Beneficiary in accordance with the Note and any Change Order Note. 13. Attorney's Fees. In the event that Grantor shall default in its obligations hereunder and in the opinion of Beneficiary it becomes necessary or proper to employ an attorney to assist in the enforcement of collection of the indebtedness owed to assist in the enforcement of collection of the indebtedness owed by Grantor to Beneficiary or to enforce compliance by Grantor with any of the provisions of the Loan Agreement or those herein contained, or in the event the Beneficiary or the Trustee voluntarily or otherwise shall become a party or parties to any suit or legal proceeding (including a proceeding conducted under the Bankruptcy Act) to protect the Premises herein conveyed, to protect the lien of this Deed of Trust, to enforce collection of the indebtedness owed by Grantor to Beneficiary, or to enforce compliance by Grantor with any of the provisions of the Loan Agreement, the Note and any Change Order Note, or those herein contained, Grantor agrees to pay a reasonable attorney's fee and all of the costs that may reasonably be incurred and; such fees and costs shall be secured by this Deed of Trust and its payment enforced as if it were a part of the original debt. Grantor shall be liable for such reasonable attorney's fees and costs whether or not any suit or proceeding is commend; if suit is instituted by Beneficiary upon default to enforce collection of any unpaid balance of the Note and any Change Order Note. Grantor stipulates and agrees that the attorney fees shall be deemed to be fifteen percent (15%) of the sum of the unpaid principal and all interest due thereon at the time suit is instituted. 14. Anti-Marshalling Provision. The right is hereby given by Grantor to Trustee and Beneficiary to make partial releases or releases of security hereunder (whether or not such releases are required by agreement among the parties) agreeable to Trustee and Beneficiary without notice to, or the consent, approval or agreement of other parties and interest, including junior lienor and purchasers subject to this lien, which partial release of releases shall not impair in any manner the validity of or priority of this Deed of Trust on the Premises remaining hereunder, not secured. Notwithstanding the existence of any other security interest in the DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 Premises held by Beneficiary or by any other party, Beneficiary shall have the right to determine the order in which any or all portions of the indebtedness secured hereby are satisfied from the proceeds realized upon the exercise of the remedies provided herein, Grantor and any party who consents to this who has actual or constructive notice hereof hereby waives any and all right to require the marshalling of assets in connection with the exercise of any of the remedies permitted by applicable law or provided herein. 15. Sale by Parcels. Pursuant to the provisions of North Carolina General Statue 45-21.8, the Trustee or Trustees are hereby empowered to sell any parcel of the real property described herein whether or not, in the judgment of the Trustee or Trustees, the proceeds of the parcel sold will be sufficient to satisfy the proceeds of the parcel sold will be sufficient to satisfy the indebtedness secured hereby, and this provision shall govern the sale or sales of the parcels of real property herein described. 16. Notice to Grantor. All notices required to be given to Grantor including the notice required to be served by North Carolina General Statue 45-21.16 shall be mailed to Grantor at the following address: Orange County Housing, Human Relations and Community Development Department, 300 W. Tryon St., Hillsborough, N.C. 27278. 17. Notice to Beneficiary. All notices required to be given to Beneficiary by Grantor or by an intervening lienor or encumbrancer pursuant to North Carolina General Statute 45-70 (b) shall be mailed to: Orange County Housing and Community Development Department, 300 W. Tryon St., Hillsborough, N.C. 27278. 18. Secondary Financing Prohibited. Grantor may not pledge or encumber the Premises herein conveyed without first obtaining Beneficiary's written consent. 19. Transfer of Premises. If all or any part of the Premises or an interest therein is sold or transferred by Grantor without Beneficiary's prior written consent, Beneficiary may, at Beneficiary's option, declare all sums secured by this Deed of Trust to be immediately due and payable. 20. Uniform Commercial Code Security Agreement. This Deed of Trust is intended to be a security agreement with respect to items referred to herein which may be subject to a security interest pursuant to the Uniform Commercial Code, and Grantor hereby grants Beneficiary a security interest in said items. Grantor agrees that Beneficiary may file this Deed of Trust as a financing statement, or at Grantor's request agrees to execute such financing statements, extensions or amendments as Beneficiary may require to perfect a security interest with respect to said items. In the event of default, the Beneficiary shall have, in addition to its other remedies, all rights and remedies provided for in the Uniform Commercial Code as enacted in North Carolina. 21. Acceleration in Case of Grantor's Insolvency. If Grantor shall voluntarily file a petition under the Federal Bankruptcy Act, as such Act may from time to time be amended, or under any similar or successor Federal statute relating to bankruptcy, insolvency, arrangements or reorganizations, or under any state bankruptcy or insolvency act, or file an answer in an DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 insolvency proceeding admitting insolvency or inability to pay debts, or if Grantor shall fail to obtain a vacation or stay of involuntary proceedings brought for the reorganization, dissolution or liquidation of Grantor, or if the Grantor shall be adjudged a bankrupt, or if a trustee or receiver shall be appointed for Grantor or Grantor's property, or if the property shall. become subject to the jurisdiction of a Federal bankruptcy court or similar State court or if Grantor shall make an assignment for the benefit of Grantor's creditors, or if there is an attachment, execution of other judicial seizure of any portion of Grantor's assets and such seizure is not discharged within ten days, the Beneficiary may, at Beneficiary's option, declare all of the sums secured by this instrument to be immediately due and payable without prior notice to Grantor. Any attorney's fees and other expenses incurred by Beneficiary in connection with Grantor's bankruptcy or any of the other aforesaid events shall be additional indebtedness of Grantor secured by this Deed of Trust pursuant to paragraph 13 hereof. 22. Events of Default. Any of the following shall constitute an "Event of Default" hereunder: (a) the failure to make when due any payment described herein, whether of principal or interest under the Note and any Change Order Note, or otherwise; (b) the failure of Grantor to perform any of the terms and conditions of the Note and any Change Order Note, Deed of Trust, Loan Agreement or any other document evidencing or securing the Loan; (c) the death, dissolution, merger, consolidation or termination of existence of Grantor or any guarantor hereof; (d) the application for the appointment of a receiver for any party hereto or the filing of a petition under any provisions of the Bankruptcy Code or Act by or against any party hereto, or any assignment for the benefit of creditors by or against any party hereto; (e) the failure of any party to furnish from time to time, at Beneficiary's request, financial information with respect to such party; or (f) the failure of any party hereto to perform any other obligation to Lender provided herein, in the Note or any other document or instrument evidencing or securing the Loan. Upon any default in the payment of any installment of interest, principal, or any other sum when due under the Note and any Change Order Note, the entire principal sum evidenced by the Note and any Change Order Note and accrued but unpaid interest hereon may, at the sole option of Beneficiary, be declared at once due and payable, time being of the essence of this obligation. Failure of Beneficiary to exercise this option in the event of any such default or Event of Default shall not constitute a waiver of the right of the Beneficiary to exercise the same in the event of a subsequent default or Event of Default. 23. Use of Premises. Unless required by applicable law or unless Beneficiary has otherwise agreed in writing, Grantor shall not allow changes in the use for which all or any part of the DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 Premises was intended at the time this Deed of Trust was executed. Grantor shall not allow changes in the use for which all or any part of the, Premises was intended at the time this Deed of Trust was executed. Grantor shall not initiate or acquiesce in a change in the zoning classification of the Premises without Beneficiary's prior written consent. 24. Books and Records. Grantor shall keep and maintain at all times a Grantor's address stated above, or such other place as Beneficiary may approve in writing, complete and accurate books of accounts and records adequate to reflect correctly Grantor's financial condition and copies of all the written contracts, leases and other instruments which may affect the Premises. Such books, records, contracts, leases and other instruments shall be subject to examination and inspection at any reasonable time by Beneficiary. Upon Beneficiary's request, Grantor shall furnish to Beneficiary within 120 days after the end of each fiscal year of Grantor, a balance sheet, a statement of income and expenses and a statement of changes in financial position, each in reasonable detail and certified by, Grantor and, if Beneficiary shall require, by an independent certified public accountant. 25. Inspection. Beneficiary may make or cause to be made reasonable entries upon and inspection of the Premises, provided that Beneficiary shall give Grantor notice prior to any such inspection specifying reasonable cause therefore related to Beneficiary's interest in the premises. 26. Application of Payments. All payments and other sums of money received by Beneficiary shall be applied by Beneficiary first to amounts due Beneficiary pursuant to paragraph 8 hereof, then to interest payable on the Note, then to the principal of the Note. 27. Environmental Issues. Grantor for itself, its successors and assigns represents, warrants and agrees that (a) neither Grantor nor any other person has used or installed any Hazardous Material (as hereinafter defined) on the Premises or received any notice from any governmental agency, entity or other person with regard to Hazardous Materials on, from or affecting the Premises; (b) neither Grantor or any other person has violated any applicable Environmental Laws (as hereinafter defined) relating to or affecting the Premises; (c) the Premises are presently in compliance with all Environmental Laws; there are no circumstances presently existing upon or under the Premises, or relating to the Premises which may violate any applicable Environmental Laws, and there is not now pending, or threatened, any action, suit, investigation or proceeding against Grantor relating to the Premises (or against any other party relating to the Premises) seeking to enforce any right or remedy under any of the Environmental Laws; (d) the Premises shall be kept free of Hazardous Materials, and shall not be used to generate, manufacture, transport, treat, store, handle, dispose or process Hazardous Materials; (e) Grantor shall not cause nor permit the installation of Hazardous Materials in the Premises nor a release of Hazardous Materials on the Premises; (f) Grantor shall at all times comply with and ensure compliance by all other parties with all applicable Environmental Laws relating to or affecting - the Premises and shall keep the Premises free and clear of any liens imposed pursuant to any applicable Environmental Laws; (g) the Grantor has obtained and will at all times continue to obtain and/or maintain all licenses, permits, and/or other governmental or regulatory actions necessary to comply with Environmental Laws (the "Permits") and Grantor is in full compliance with the terms and DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 provisions of the Permits and will continue to comply with the terms and provisions of the Permits; (h) Grantor shall immediately give the Beneficiary oral and written notice in the event that Grantor receives any notice from any governmental agency, entity, or any other party with regard to Hazardous Materials on, from or affecting. the Premises. and shall conduct and complete all investigations, sampling, and testing, and all remedial, removal, and other actions necessary to clean up and remove all Hazardous Materials on, from or affecting the Premises in accordance with all applicable Environmental Laws. Grantor hereby agrees to indemnify the Beneficiary and hold the Beneficiary harmless from and against any and all losses, liabilities, damages, injuries (including, without limitation, attorneys' fees) and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against Beneficiary for, with respect to, or as a direct or indirect result of (a) the presence on, or under, or the escape, spillage, emission or release from the Premises of any Hazardous Material regardless of whether or not caused by or within the control of Grantor, (b) the violation of any Environmental Laws relating to or affecting the Premises, whether or not caused by or within the control of Grantor, (c) the failure by Grantor to comply fully with the terms and provisions of this paragraph, or (d) any warranty or representation made by Grantor in this paragraph being false or untrue in any material respect. For purposes of this Deed of Trust, "Hazardous Material" means and includes petroleum products, any flammable explosives, radioactive materials, asbestos or any material containing asbestos, and/or any hazardous, toxic or dangerous waste, substance or material defined as such in (or for the purpose of) the Environmental Laws. For the purposes of this Deed of Trust, "Environmental Laws" means the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Materials Transportation Act, the Resource Conservation and Recovery Act, any "Super Fund" or "Super Lien" law, or any other federal, state, -'or local law, regulation or decree regulating, relating to or imposing liability or standards of conduct concerning any petroleum products, any flammable explosives, radioactive materials, asbestos or any material containing asbestos; and/or hazardous, toxic or dangerous waste, substance or material, as may now or at any time hereafter be in effect. The obligations and liabilities of Grantor under this paragraph shall survive the foreclosure of the Deed of the Trust, the delivery of a deed in lieu of foreclosure, the cancellation of the Note and any Change Order Note; or if otherwise expressly permitted in writing by the Note and any Change Order Note; or if otherwise expressly permitted in writing by the Beneficiary, the sale or alienation of any part of the Premises. 28. Appointment of a Receiver. Beneficiary shall have the absolute and unconditional right to apply for and to obtain the appointment of a receiver or similar official for all or a portion of the Premises, to among other things, manage and operate the Premises, or any other part thereof, and to apply the net rents, issues, and profits there from to the payment of interest and principal of the Note and any Change Order Note and any other obligations of Grantor to Beneficiary hereunder. In the event of such application, Grantor consents to the appointment of such receiver or similar official and agrees that such receiver or similar official and agrees that such receiver or similar official may be appointed without notice to Grantor, without regard to adequacy of any security for the debt and without regard to the solvency of Grantor or any other person, firm or corporation who or which may be liable for the payment of the Note and any Change Order Note or any other obligation of Grantor hereunder. DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 29. Statute Inapplicable. The provisions of North Carolina General Statute sec. 45-45.1 or any similar stature hereafter enacted in replacement or substitution thereof shall be inapplicable to this Deed of Trust. 30. Definitions. As used herein the terms "Grantor", "Trustee", "Beneficiary" and other terms shall refer to the singular, plural, neuter, masculine and feminine as the context may require and shall include, be binding upon and inure to the benefit of their respective heirs, successors, legal representatives and assigns. BUT THIS CONVEYANCE IS MADE UPON THIS SPECIAL TRUST: If the total amount of the debt, interest, advances and other sums secured hereby are paid in full in accordance with the terms of the Note and any Change Order Note and this Deed of Trust, this conveyance shall be null and void and may be canceled of record at the request and cost of the Grantor. If, however, there shall be a default in any of the terms and conditions of this Deed of Trust, the Loan Agreement, or under the Note and any Change Order Note or any advanced secured hereby, all sums owing to Beneficiary thereunder regardless of maturity without notice shall immediately become due and payable at the option of Beneficiary; and, on application of Beneficiary, Trustee shall foreclose this Deed of Trust by judicial proceedings or, at Beneficiary's election, Trustee shall sell (and is hereby empowered to sell) the Premises at public sale to the last and highest bidder for cash (free of any equity of redemption, homestead, dower, curtesy or other exemption, all of which are expressly waived by Grantor) after compliance with applicable North Carolina laws relating to foreclosure sales under power of sale and shall execute a conveyance in fee simple to the successful purchaser at said sale. The proceeds of any such sale shall be applied in the manner and in the order prescribed by applicable North Carolina laws, it being agreed that the expenses of any such sale shall include a commission of five percent of the gross sales price to Trustee for making such sale and for all services performed by him hereunder. Beneficiary may bid and become the purchaser at any sale under this Deed of Trust. At any such sale Trustee may at its election require the successful bidder immediately to deposit with Trustee cash or certified check in an amount equal to all or any part of the successful bid, and notice of any such requirement need not be included in the advertisement of the notice of such sale. IN WITNESS WHEREOF, this Deed of Trust has been duly signed, sealed and delivered by Grantor the day and year first above written. WITNESS: INDIVIDUAL GRANTOR: ____________________________________ ____________________________(SEAL) ____________________________________ ____________________________(SEAL) DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65 Rev August 8, 2018 COUNTY OF ___________________ STATE OF NORTH CAROLINA I, ____________________________, a Notary Public, do hereby certify that ______________________________Grantor, personally appeared before me this day and acknowledged the due execution of this Deed of Trust. WITNESS my hand and official stamp or seal, this ____day of __________________, _______. My Commission expires: _________________ __________________________________ Notary Public (Seal/Stamp) DocuSign Envelope ID: 62EC95C2-2AA8-49D7-B576-F94193C9DB65