HomeMy WebLinkAbout2018-302 Housing - Habitat bond development agreementE xh ►RBI►lUl�5l�9 4116l►��►�������►►�►�����►�►►�►
NORTH CAROLINA
AFFORDABLE HOUSING BOND
DEVELOPMENT AGREEMENT
ORANGE COUNTY
This is an AGREEMENT between Orange County, a general local governmental unit of
the State of North Carolina, (hereinafter referred to as the "County ") and Habitat for Humanity,
Orange County, N.C.; Inc., a North Carolina Non -Profit Corporation (hereinafter referred to as
"Owner" or "Habitat "). The effective date of this Agreement is August 1, 2018.
WITNESSETH
WHEREAS, the Orange County Board of Commissioners solicited application for the
2017 County Owned Land for Affordable Housing projects from interested organizations (Orange
County RFP # 5229, which is hereby incorporated by reference); and
WHEREAS, on November 20, 2017 the Orange County Board of Commissioners, by
Resolution, awarded Owner the property, located at 211 Odie Street, Hillsborough, North
Carolina, and more particularly described in the Legal Description which is attached as `Txhibit
A" (hereafter "Subject Property") valued at Twenty Thousand dollars ($20,000), subjected to
the terms in RFP # 5229 and that the property be development for single family homes for
families with incomes between 30% - 65% of the HUD Area Median Income; and
WHEREAS, on November 20, 2017 the Orange County Board of Commissioners, by
Resolution, also approved Ninety Thousand Dollars ($90,000) in Affordable Housing/Land
Bank Set Aside funds to Owner to leverage financial resources for installation of infrastructure,
subject to the contingency found below; and
WHEREAS, it is the intent of the County and Owner that any approved contingent funds
be utilized for the Subject Property; and
WHEREAS, notwithstanding any provision of this Agreement, the County and the
Owner agree and acknowledge that this Agreement does not constitute a commitment of funds,
and that such commitment of funds or approval of funds may only occur upon satisfactory
completion of the contingency as provided herein and release of funds by Orange County.
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
representations contained herein, it is agreed between the parties hereto as follows:
USE OF FUNDS /SUBSIDY TYPE
A. The County shall make available to Owner up to Ninety Thousand Dollars
($90,000) at an interest rate of zero percent (0 %) pursuant to this Agreement and
subject to the contingency below.
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RB6505 500 5116
1. The funding provided by the County will be provided as a fixed subsidy in the
form of a deferred loan. The loan shall be provided as second mortgage
assistance which shall be documented by a Promissory Note from the
homebuyer to the County, secured by a Deed of Trust on the Properties
naming the County as beneficiary by the individual families at the time of sale
of the Property to them. The investment will be secured by a forty (40) year
Deed of Trast and Promissory Note, forgivable at the end of 40 years.
2. This Deed of Trust and Promissory Note shall constitute a lien on the
Properties, subordinate only to the Declaration of Restrictive Covenants
described in Section VI, Affordability Requirements of this Agreement, the
form of which is provided in Exhibit C and any lien as provided in subsection
3 below.
3. The County agrees to subordinate its Deed of Trust lien to a lien securing
private permanent financing acquired by the homebuyer.
B. Contingent Funds.
1. Use of fiords is contingent upon approval by County staff of Owner's final
detailed plans and cost estimate.
2. Once contingent fund use is approved, Owner may not request disbursement
of funds under this Agreement until after Owner utilizes its leveraged funds
on hand. Disbursement of funds shall be made in incremental draws when
they are needed for payment of eligible costs. The amount of each request
most be limited to eligible costs as determined by Orange County staff.
3. Owner shall perform the projects or tasks related to its allocations of
Affordable Housing/Land Bank Set Aside funds as provided in Exhibit B,
Scope of Services. Exhibits B is attached and made part of this Agreement.
4. Disbursement of funds shall be made in incremental draws when they are
needed for payment of eligible costs. The amount of each request must be
limited to eligible costs as determined by Orange County staff.
5. Said funds shall be disbursed by check payable to Owner.
11. CONVEYANCE
A. Conveyance of Property. The County shall convey the Subject Property identified
in Exhibit A to Owner.
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B. Amount of Affordable Housing/Land Bank Set Aside Funds. The County shall
make available to Owner up to Ninety Thousand Dollars ($90,000), subject to
the contingencies found in Section I pursuant to this Agreement. Said funds shall
be disbursed to Owner by County for performance of services described in
Exhibit B.
III. LIEN POSITION
Orange County hereby acknowledges that the terms and conditions of its (i)
Promissory Note, (ii) Deed of Trust and Security Agreement and (iii) Declaration of
Restrictive Covenants (collectively referred to as "Orange County Loan
Documents "), shall not expressly subordinated to any other documents except as
provided in Section I.B. above.
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Owner shall complete the infrastructure work within twelve (12) months from the date of this
document and complete the entire Project by December 2020. However, in the event of any
alterations or addition 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 Department
will require additional time for completion of the Project, then in that 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 extension 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 as provided in Section VI,
Affordability Requirements.
VI. AFFORDABILITY REQUIREMENTS
A. Period of Affordability
1. Owner agrees to keep the single family homes ("Project Dwelling Units ") for families
with incomes between 30% and 65% of Area Median Income as determined by the
U.S. Department of Housing and Urban Development and amended from time to
time.
2. The Project Dwelling Units most remain affordable during the "Period of
Affordability", which is ninety-nine years. The Period of Affordability starts from
the date of recording of the Declaration and continues for a period of ninety-nine
years thereafter. The Owner shall retain full responsibility for compliance with the
affordability requirement for each of the Project Dwelling Units during the Period of
affordability as provided in the Declaration of Restrictive Covenants ( "Declaration "),
recorded at Book .0 Page 4'-t' Orange County, North Carolina Registry.
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(The form of which is attached as Exhibit C and hereby incorporated into this
Agreement. The Declaration shall constitute and remain a lien on the Property during
the Period of Affordability.
3. If the affordability restrictions are terminated due to the sale of the Property to a non-
qualified buyer the Resale Provisions of this Section of this Agreement shall apply.
4. Owner agrees to the Affordability Requirements as provided herein and the Resale
Provisions provided in the Exhibit C, Declaration of Restrictive Covenants, Section
4B.
5. It is further the responsibility of the Owner to rerecord the Declaration of Restrictive
Covenants periodically and no less often than one day less than every 30 years from
the date hereof for the purpose of renewing the rights of first refusal in the Property or
portion thereof including any leasehold interest in the Property or portion thereof.
Orange County retains the right to, periodically and every 30 years after the first
recording of the Declaration of Restrictive Covenants on the Property to register, with
the Register of Deeds of Orange County, a notice of preservation of the Restrictive
Covenants on the Property as provided in North Carolina General Statute § 4713-4 or
any comparable preservation law in effect at the time of the recording of the notice of
preservation. It is the intent of this Agreement that the 99 -year duration of this
Declaration of Restrictive Covenants be accomplished and that any future owner of
the Property, Owner, and Orange County will do what is necessary to ensure that the
same is not extinguished by N.C. Gen. Stat. § 41 -29 or any comparable law
purporting to extinguish, by the passage of time, preemptive rights in the Property
and by the Real Property Marketable Title Act or any comparable law purporting to
extinguish, by the passage of time, non possessory interests in real property. Any
form owner, Owner and Orange County agree to do what each must do to
accomplish the 99 -year duration of this Declaration of Restrictive Covenants.
B. Resale Provisions. The Declaration of Restrictive Covenants shall include at least the
following elements in their resale provisions for the Improvements:
1. If the buyer no longer uses the Property as a principal residence or is unable to
continue ownership, then the buyer must sell, transfer, or otherwise dispose of their
interest in the Property only to a qualified homebuyer, i.e., a low - income household,
one whose combined income does not exceed 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, to use as their principal residence.
2. If the Property is sol(, transferred, or otherwise disposed of during the Period of
Affordability to a non - qualified homebuyer or to other than an agency with similar
interest in affordable housing, the Right of First Refusal provision of the then current
County's Long -Term Housing Affordability Policy most 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
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contribution and any other initial government contribution secured by a deferred
payment promissory note and deed of trust) or "equity" will be divided 50/50 by the
seller of the Property and the County. If the initial County contribution does not
have to be repaid because the sale occurs more than forty years after the County
contribution is made, then the seller of the Property and the County will divide the
entire equityrealized from the sale.
3. The resale provision shall remain in effect for the full Period of Affordability.
4. Any proceeds from the recapture of funds under this provision will be used to
facilitate the acquisition, construction, and rehabilitation of housing for the purposes of
promoting affordable housing.
VII. OWNER PERFORMANCE UNDER THIS AGREEMENT
A. Owner 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.
B. Owner agrees to not violate any State or Federal laws, Hiles or regulations regarding a
direct or indirect illegal interest on the part of any employee or elected official of the
Owner in the Project or payments made pursuant to this Agreement.
C. Owner 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." Owner shall submit
to the County copy of said audit report. Owner 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 the Owner relating to its performance under the Agreement.
D. County shall provide, upon request, copies of all laws, regulations and orders cited in this
Agreement.
E. Owner certifies by executing this Agreement that Owner has not been identified, and has
not utilized the services of any agent or subcontractor identified, on the list created by the
State Treasurer pursuant to G.S. 147- 86.58. By executing this Agreement Provider
certifies that Provider has not been identified, and has not utilized the services of any
agent or subcontractor identified, on the list created by the State Treasurer pursuant to
G.S. 147- 86.81. By executing this Agreement Provider affirms Provider is and shall
remain in compliance with Article 2 of Chapter 64 of the North Carolina General
Statutes.
F. Owner hereby assures and certifies that it will comply with the regulations, policies,
guidelines and requirements with respect to the acceptance and use of BOND funds in
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R86505 584
accordance with the policies of the County. Also, Owner certifies with respect to the
Project that the Project will be conducted and administered in compliance with:
1. Title VIII of the Civil Rights Act of 1968 (Pub. L. 90 -208, 42 U.S.C. Sec 2000d at
seq.), as amended; and that the Owner will administer all programs and activities
related to housing and community development in a manner to affirmatively further
fair housing;
2. Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93 -112), as amended, and
implementing regulations when published in effect;
3. The Age Discrimination Act of 1975 (Pub. L. 94135), as amended, and implementing
regulations when published for effect;
4. The Fair Housing Act (42 U.S.C. 3601 -20);
5. Lead Based Requirements at 24 CFR Part 35
VIII. ADMINISTRATION AND REPORTING REQUIREMENTS
A. Owner 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.
B. Miscellaneous Provisions
1. 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 the Owner for the assisted units as follows:
a. In the event that the Owner is unable to proceed with any aspect of the Project in
a timely manner, and County and the Owner determine that reasonable
extension(s) for completion will not remedy the situation, then the Owner will
retain responsibility for requirements for any dwelling units assisted and County
will make no further payments to the Owner.
b. In the event that the Owner, 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 the Owner shall, upon the County's request, convey to the
County the Property assisted with Bond funds. Conveyance shall be at the sole
discretion of County and on a Project dwelling unit by Project dwelling unit basis
as set forth below:
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116
i. Conveyance shall occur within thirty (30) days of County and the Owner's
agreement of the Owner's inability to continue as a viable organization.
ii. Owner 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).
2. Default, Remedies. This Agreement may be terminated by a non - defaulting party
upon an event of default hereunder, after written notice thereof and thirty (30) days
grace period in which the defaulting party may act to cure. As used herein, the term
"an event of default' shall mean and refer to a failure or act of omission by either
party with respect to any undertaking, obligation, covenant or condition as set forth in
this Agreement. With respect to any event of default, the non - defaulting party may
exercise any right available to it at law or in equity with respect to such default.
3. Books and Records. The Owner shall maintain records of its loan requirements
under this contract for a period of not less than the completion of the affordability
periods for all Project dwelling units.
a. The Owner shall ensure the County access to records and financial statements, as
necessary, to provide effective monitoring and evaluation of project performance.
Additionally, the Owner shall submit a copy of its annual audit to the County.
b. Upon reasonable advance notice, County or its authorized representatives may
from time to time inspect, audit, and make copies of any of Habitat records that
relate to this contract. If any audit by County discloses that payments to Habitat
were in excess of the amount to which Habitat was entitled under this contract,
Habitat shall promptly pay to County the amount of such excess. If the excess is
greater than 1% of the contract amount, Habitat shall also reimburse County its
reasonable costs incurred in performing the audit.
c. Habitat 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.
d. Habitat shall maintain records verifying the affordability of the dwelling units.
4. 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 retum- 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:
111111�I1� lIlU1��1111111111111III II IIIII III III
a. To the County: Orange County
c/o Housing, Human Rights and Community Development
Department
P.O. Box 8181
Hillsborough, NC 27278
ATTN: Director
b. To the Owner: Habitat for Humanity
88 Vilcom Center Drive, Suite LI 10
Chapel Hill, NC 27514
ATTN: Executive Director
Either the County or the Owner may change the person or address to which any future
Notice shall be given as herein provided.
5. No Assignment. No transfer or assignment of the interest of the Owner in this
Agreement shall occur without the prior written consent of the County, neither may
the Owner assign this Agreement without the prior written consent of County.
6. Conflict of Interest The Owner shall be aware of and observe the requirements of
the Orange County Affordable Housing Bond Program which provides that no
member of the Orange County Board of Commissioners shall be admitted to any
share or part of this Agreement or to any benefit to arise from the same. The Owner
shall also be aware of and observe the requirements which states that no member,
officer, or employee of Orange County or its designees or agents, no member of the
governing body of the locality who exercised any functions or responsibilities with
respect to the program during his/her tenure or for one year thereafter, shall have any
private interest, direct or indirect, in this contract or any subcontract, or the proceeds
thereof, for work to be performed in connection with the program assisted under the
agreement.
7. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
8. Indemnification. To the extent legally possible, the Owner 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 the Owner, its
employees, agents, officers, and contractors in connection with this contract. In the
event any such action or claim is brought against County, the Owner shall, upon
County's tender, defend the same at the Owner's sole cost and expense, promptly
satisfy any judgment adverse to County or to County and the Owner jointly, and
reimburse County for any loss, cost, damage, or expense, including attorney fees
suffered or incurred by County.
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9. Subcontracting. The Owner shall not subcontract work under this Agreement, in
whole or in part, without the County's prior written approval. The Owner 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 the Owner specified in this contract. Notwithstanding County's
approval of a subcontractor, the Owner shall remain obligated for full performance of
this contract and County shall incur no obligation to any subcontractor the Owner
shall indemnify, defend, and hold County harmless from all claims of its contractors.
10. No Joint Venture or Agency. The County and the Owner each agree and
acknowledge that nothing contained herein or otherwise, including, without
limitation, any act of the County or the Owner under this Agreement, shall be deemed
or construed to create any relationship of joint venture, partnership or agency between
the parties.
11. 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 the Owner 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
the Owner be a waiver by the County of its rights and remedies with respect to that or
any other breach.
12. 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.
13. Severability. The provisions of this Agreement we 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
The Owner 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 the Owner 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.
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14. Equal Opportunity. The Owner 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.
15. Headings. Headings are for convenience only and shall not be used to interpret or
construe its provision.
16. 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.
17. 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 .
18. 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, the Owner
shall comply with all federal, state and local laws, regulations and ordinances
applicable to the expenditure of funds provided by the County, to purchase and
develop the Property.
19. Publicity; Signage. The Owner 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.
20. 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 one and
the same instrument.
21. No Third Party Rights. The parties hereto covenant and agree that nothing
contained in this Agreement or any act by the County or the Owner 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, the Owner or any of their respective officers,
agents or employees by any third party.
22. Performance of Government Functions. Notwithstanding anything in this
Agreement which may be to the contrary, nothing contained in this Agreement shall
many way stop, limit or impair the County from exercising or performing any
regulatory, policing or govermnental powers or functions with respect to the Property
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including, without limitation, inspection of the Property in the performance of such
functions.
23. 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 recorded
Declaration of Restrictive Covenants.
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.
HABITAT FOR HU�MAAAN�IT�Y AOF O GE COUNTY
By /
ORANGE COUNTY, NORTH C LINA
By: - � /
nn Bonnie Hammersley, Coun anager
ATTEST:Ke�
Cler eputy Clerk to 1he Board of Commissioners
#0oc been preaudited in accordance with the N.C. Local Government and Fiscal
C
ary Yonaldson, Finance Director
Approved as to form and legality
1
J�dies Bryn, Staff Attorney
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RB6505 590 15116
EXHIBIT A
Least Description
Property at Odie Street PIN # 9865 -51 -6149, being all that certain tract or parcel of land
appearing of record in Book 272, Page 1319 Orange County, North Carolina Registry to which
reference is made for a more particular description.
12
Scope of Services
Services to be provided are in accordance with the Orange County RFP # 5229 and response
from Habitat for Humanity of Orange County.
Funds will be used to provide land and infrastructure development for affordable homes for low
income persons.
All construction will be completed in compliance with applicable state and local building codes
and ordinances.
13
MARK CHILTON
REGISTER OF DEEDS
ORANGE COUNTY, NC
NORTH CAROLINA
ORANGE
I do hereby certify this to be a true copy of the attached document filed and recorded in the
aforesaid county as evidence by Instrument Number
20180809000152020 in Book No. RB 6505 Page No. 576 and consists of 16 page /s.
Witness my hand and Official seal this 9 th day of August 2018
Mark Chilton
Register of Deeds on', �I n
By: IViRS(X Deputy
Orange County Register Of Deeds
Mark Chilton
228 South Churton Street, PO Box 8181
Hillsborough NC 27278
SEAL
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TD
Orange County Register Of Deeds
Mark Chilton
228 South Churton Street, PO Box 8181
Hillsborough NC 27278
M
20190909000152020 DEED
Bk:06505 Pg:576
0910912019 10:34:50 AM 1/16
Register of eDeeds "0 arse Co.NC
NRalnitatT 0C ese %$.0 / i 9
NORTH CAROLINA /Y�
SPECIAL WARRANTY DEED
Excise Tax: $ 0.00 (Exempt) (,�.1 Recording Time, Book and Page
Parcel Identifier No. 9865 -51 -6149 `'
Mail after recording to: Orange County; County Attorney's Office
This instrument was prepared by: Orange County; County Attorney's Office
THIS DEED made this day of by and between
GRANTOR
Orange County
Mailing Address:
200 S. Cameron Street
Hillsborough, North Carolina 28278
GRANTEE
Habitat for Humanity, Orange County, N.C. Inc.
Mailing Address:
88 Vilcom Center Drive, Suite L110
Chapel Hill, North Carolina 27514
The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors,
and assigns, and shall include singular, plural, masculine, feminine or neuter as required by context.
WITNESSETH, that the Grantor, for a valuable consideration paid by the Grantee, the receipt of
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R66505 577 2116
which is hereby acknowledged, has and by these presents does grant, bargain, sell and convey unto the
Grantee in fee simple, all that certain lot or parcel of land situated in the Town of Hillsborough,
Hillsborough Township, Orange County, North Carolina, and more particularly described as follows:
Property at 211 Odie Street PIN # 9865 -51 -6149, being all that
certain tract or parcel of land, approximately 1 acre, appearing of
record in Book 272, Page 1319 Orange County, North Carolina Registry
to which reference is made for a more particular description.
The property hereinabove described was acquired by Grantor by instrument recorded in Book 272,
Page 1319.
TO HAVE AND TO HOLD the aforesaid lot or parcel of land and all privileges and appurtenances
thereto belonging to the Grantee in fee simple.
And the Grantor covenants with the Grantee, that Grantor has done nothing to impair such title as
Grantor received, and that Grantor will warrant and defend the title against the lawful claims of all
persons claiming by, under or through Grantor, except for the exceptions hereinafter stated.
Title to the property hereinabove described is hereby conveyed subject to all valid and subsisting
restrictions, reservations, covenants, conditions, rights of ways and easements properly of record, if
any, current year ad valorem taxes and terms of that certain Affordable Housing Bond Development
Agreement by and between Grantor and Grantee attached hereto as Exhibit A and incorporated herein.
IN WITNESS WHEREOF, the Grantors have hereunto set their hands and seals, or, if corporate, has
caused this Deed to be executed by its duly authorized officers and its seal to be hereunto affixed, the
day and year first above written.
Orange Coon
By: )
Bonnie Hammersley
Attest by County Clerk
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NORTH CAROLINA `3 ( -aw.'X G ( COUNTY
I, certify that the following person(s) personally appeared before me this day, each acknowledging to
me that he or she voluntarily signed the foregoing document for the purpose stated therein and in the
capacity indicated: GOAA ea,� Grantor(s). Witness my hand and official stamp
or seal, this the � day of �, s
My Commission Expires: .3 e_ 7. ZV O
DAVID HUW
{a
Notary Public
Print Notary Name: I.D.. m 1 -f
Vim
III IN 1u�IJ�lllllllll ll I11111111111111
20180806000149750 DELL
Bk:RB6504 Pg:449
08/0612018 02:25:18 PP 118
FILED Mark Chi l'on
Reels ter of Deed9s, Oranve Co.NC
NC RealnEstate TX: $.00 /n
Prepared by and return to: Orange County Attorney's Office:
P.O. Sox 8181; Hillsborough, NC 27278
PIN # 9865 -51 -6149
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS ( "Declaration'), dated
by Habitat for Humanity, Orange County, N.C., Inc., a North Carolina Non
Profit Vorsorition, for itself and its successors and assigns ("Owner" or "Habitat "), is given as a
condition precedent to the award of funds.
RECITALS:
WHEREAS, the Orange County Board of Commissioners awarded Habitat for Humanity
of Orange County funding for affordable housing efforts (hereinafter "Project Funds "); and
WHEREAS, Habitat for Humanity of Orange County intends to use the Project Funds to
acquire property located on Odie Street (PIN #9865- 51- 6149i as housing for low- income
families (herein after referred to as "the Project dwelling unit" or "the Project ") and will remain
affordable to low income families throughout the term of the 99 year period of affordability. The
Project dwelling unit is located on the property more particularly described in EXHIBIT A,
Legal Description, attached hereto and made a part of this Agreement (hereinafter referred to as
"the Propert)") (All Exhibits attached to this Agreement are hereby made a part of this
Agreement and are incorporated into this Agreement, as it now reads or as it may be modified by
the parties); and
WHEREAS, notwithstanding any provision of this Agreement, the County and the
Habitat for Humanity of Orange County 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. 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.
WHEREAS, Habitat for Humanity of Orange County as a condition precedent to the
awarding of funds, shall execute, deliver and record this Declaration in the Office of the Register
14
"/7
RB604 ►R86504
460 1/B
of Deeds of Orange County in order to create certain covenants pertaining to the Property and
running with the land for the purpose of enforcement of the affordability requirements and
agreeing to the terms of the DEVELOPMENT AGREEMENT which is attached as Exhibit B
hereto and made part of this Agreement between the County and Habitat.
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 I REPRESENTATIONS, COVENANTS AND WARRANTIES OF OWNER
Owner hereby represents, covenants and warrants as follows:
A. It is contemplated that the Property and the Project will be used, during the ninety-nine
(99) years after Project Completion (defined as the Property acquired, rehabilitated (if
necessary) and occupied by a low- income family earning up to 65% of HUD area median
income).
B.
In the event Owner sells, transfers or
exchanges
the Properly
or any portion
of the
Property, the following shall pertain:
Subject to the requirements of the DEVELOPMENT AGREEMENT (Exhibit B),
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. Owner
agrees that 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.
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
15
RB6504 451U1�1U��1lIIlIIIIIlIllllllllllll111
00q 461 3I8
voluntary or involuntary or by operation of law shall be subject to the provisions of
SECTION 4 of this Declaration.
C. 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).
D. 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
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 (99) years after Project Completion, unless Orange
Long Term Housing Affordability Policy affordability restrictions are terminated due to the sale
of the Property to a non - qualified buyer as provided herein and Orange County agrees to the
termination of the Declaration.
SECTION 3 RECORDING AND FILING; COVENANTS TO RUN WITH THE LAND
A. Upon execution of this Declaration by Owner, Owner shall cause this declaration and all
amendments hereto to be recorded and filed in the Office of the Register of Deeds of
Orange County.
B. Owner intends, declares and covenants, on behalf of itself and all future Owners of the
Project during the tern 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
16
R6604 D65 04VVV1Vl► JV�V1���►�►►����►►�►►►���►►►���
452 6/B
instrument hereafter executed conveying the Property or portion thereof shall expressly
provide that such conveyance is subject to this Declaration, provided, however, the
covenants contained herein shall survive and be effective regardless of whether such
contracts, deed, or other instrument hereafter executed conveying the Property or portion
thereof provides that such conveyance is subject to this Declaration. It is further the
responsibility of Owner to rerecord the Declaration of Restrictive Covenants periodically
and no less often than one day less than every 30 years from the date hereof for the
purpose of renewing the rights of first refusal in the Property or portion thereof including
any leasehold interest in the Property or portion thereof Orange County retains the right
to, periodically and every 30 years after the first recording of the Declaration of
Restrictive Covenants on the Property to register, with the Register of Deeds of Orange
County, a notice of preservation of the Restrictive Covenants on the Property as provided
in North Carolina General Statute § 4713-4 or any comparable preservation law in effect
at the time of the recording of the notice of preservation. It is the intent of this Section
that the ninety-nine (99) year duration of this Declaration of Restrictive Covenants be
accomplished and that any future owner of the Property, Owner, and Orange County will
do what is necessary to ensure that the same is not extinguished by N.C. Gen. Stat. § 41-
29 or any comparable law purporting to extinguish, by the passage of time, preemptive
rights in the Property and by the Real Property Marketable Title Act or any comparable
law purporting to extinguish, by the passage of time, non - possessory interests in real
property. Any future owner, Owner and Orange County agree to do what each most do to
accomplish the ninety-nine (99) year duration of this Declaration of Restrictive
Covenants.
SECTION 4 ENFORCEMENT OF AFFORDABLE HOUSING REQUIREMENTS
n18l►l�l1111JQ►1►►� 11111►1►►1►11►►1►►►u 453
A. Rights of Refusal
1. Grant and Effect. Orange County is granted a right of fast refusal to purchase the
Property as described in this Section. Any assignment, sale, transfer, conveyance, or
other disposition of the Property or any part thereof whether voluntarily or
involuntarily or by operation of law ( "Transfer") shall not be effective unless and
until the below - described procedure is followed.
2. Right of First Refusal. If Owner contemplates a Transfer during the term of this
Declaration to other than an agency with similar interest in affordable housing serving
families with incomes not exceeding 65% of the area median household income by
family size, as determined by the U.S. Department of Housing and Urban
Development at the time of the transfer, the non -profit fund, foundation, or
corporation of like purposes must have established its tax- exempt status under
Section 501(c)(3) of the Internal Revenue Code, Owner shall send to Orange County,
at the address noted in the Notice section of this Declaration, not less than 90 days
prior to the contemplated closing date of the Transfer, a "Notice of Intent to Sell.'
This Notice of Intent to Sell shall be accompanied by a copy of a completed, fully
executed bona fide offer to purchase the Property on the then current North Carolina
Bar Association "Offer to Purchase and Contract" form. If Orange County elects to
exercise its said right of refusal, it shall notify the Owner of its election to purchase
within 30 days of its receipt of the Notice and shall purchase the Property or portion
thereof within 90 days of the receipt of the "Notice of Intent to Sell." The right of
first refusal granted to the County pursuant to this Section 4 shall be in force
commencing immediately.
3. Sales After Failure to Exercise Rights of Refusal.—If Orange County does not advise
the Owner in a timely fashion of its intent to purchase the Property, then the Owner
shall be free to transfer the property in accordance with this Section of the
Declaration.
4. Assignability. Orange County may assign its right of first refusal without Owner's
consent.
B. Resale Provisions
1. If the Owner no longer uses the Property as affordable home ownership property, then
Owner must sell, transfer, or otherwise dispose of its interest in the Property only to
an agency with similar interest in affordable housing and to serve families with
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Rafi504 056 616
incomes not exceeding 65% 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 corpomtion of like purposes must
have established its tax - exempt status under Section 501 (c)(3) of the Internal
Revenue Code.
2. 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, and (2) 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 50150 by the seller of the Property and Orange County. If
the initial County contribution does not have to be repaid because the sale occurs
more than forty years after the County contribution is made, then the seller of the
Property and the County will divide the entire equityrealized from the sale.
3. In the event that Net Sales Proceeds are insufficient to repay the County Bond Funds,
including principal plus interest, the amount to be recaptured shall be any funds
remaining after payment of all liens senior to the County's lien and closing costs. In
no event shall the borrower be required to use funds other than net proceeds to repay
the Bond Funds.
4. 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 Orange County Long Term Affordability Policy requirements. 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 BY REASON THEREOF, OWNER IN
CONSIDERATION FOR RECEIVING AFFORDABLE HOUSING BOND PROGRAM
FUNDS FOR THE PROPERTY HEREBY AGREES AND CONSENTS THAT ORANGE
COUNTY SHALL BE ENTITLED, FOR ANY BREACH OF THE PROVISIONS HEREIN,
AND IN ADDITION TO ALL OTHER REMEDIES PROVIDED BY LAW OR IN
EQUITY, TO ENFORCE BY SPECIFIC PERFORMANCE OWNER'S OBLIGATIONS
UNDER THIS DECLARATION IN A STATE COURT OF COMPETENT
465ui�a
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 cwvenant. 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 5 MISCELLANEOUS
A. Severability. The invalidity of any clause, part, or provision of this Declaration shall not
affect the validity of the remaining portions thereof.
B. Notices. Any Notice shall be in writing and shall be given by depositing the same in the
United States mail, post -paid and registered or certified, and addressed to the party to be
notified, with return- receipt requested, or by delivering the same in person to an officer or
principal of such party. Notice deposited in the mail in the manner hereinabove
described shall be effective upon mailing. For purposes of Notice, the addresses of the
parties shall, unless changed as hereinafter provided, be as follows:
L To the County: Orange County
do Housing and Community Development
Department
P.O. Box 8181
Hillsborough, NC 27278
ATTN: Director
ii. To Habitat: Habitat for Humanity of Orange County
88 Vilcom Center Drive, Suite L110
Chapel Hill, NC 27514
ATTN: Executive Director
C. Governing Law. This Declaration shall be governed by the laws of the State of
North Carolina and, where applicable, the laws of the United States of America.
IN WITNESS WHEREOF, the Owner has caused this Declaration to be signed by its
duly authorized representative, on the day and year fast above written.
RB6504 IlR86 456U11 �IIIIIIIIII�IIIIIIVNIN
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NORTH CAROLINA
ORANGECOUNTY
I, ST vrw N, �ilLwc4 , Notary Public in and for the above named County and
State, do hereby certify that on this day personally appeared before me Srsne nr"'ro� with
whom I son personally acquainted, who, being by me duly sworn, says thatshe is- Svereteq -ewd
President of Habitat for Humanity, Orange County, N.C. Inc., a North
Carolina Non Profit Corporation, and that by authority duty given and as the act of the
corporation, the foregoing instrument was signed in its name by its President.
Witness my hand and notarial seal, this the V14 day of '5....y 20 )Q
J
STEVEN A. DRAKE
NOTARY PUBLIC slryrn n , DrAo\eX ,Notary Public
ORANGE COUNTY
S01TE OF NORTH CAROLINA
MY COMMISSION EXPIRES 1.1442021
My commission expires:
MARK CHILTON
REGISTER OF DEEDS
ORANGE COUNTY, NC
NORTH CAROLINA
ORANGE
I do hereby certify this to be a true copy of the attached document filed and recorded in the
aforesaid county as evidence by Instrument Number
20180806000149750 in Book No. RB 6504 Page No. 449 and consists of 8 page/s.
Witness my hand and Official seal this 9 th day of August 2018
Mark Chilton
Regis f Deeds
By: Deputy
SEAL
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Orange County Register Of Deeds
Mark Chilton
228 South Churton Street, PO Box 8181
Hillsborough NC 27278
PROMISSORY NOTE
DEFERRED PAYMENT LOAN
Date: July ff. 2018
Amount: ONE HUNDRED TEN THOUSAND DOLLARS (U.S. $110,000.00)
1. Loan. This Note evidences a loan made by Orange County, a general local
governmental unit of the State of North Carolina, ("Lender") to Habitat for Humanity, Orange
County, N.C. Inc., a North Carolina Non Profit Corporation (`Borrower") under a Development
Agreement pursuant to the Orange County Long -Term Housing Affordability Policy. The loan is
secured by a Deed of Trust, (the "Deed of Trost ") dated the same date as this Note, and which is
a lien on the property described in the Deed of Trost (the 'Property "). The Trustee is John
Roberts. All terms of the Deed of Trost are incorporated in this Note by reference, and any
default under the Deed of Trost is a default under this Note.
2. Borrower's Promise to Pay. In return for a loan received (the "Loan "), Habitat
for Humanity of Orange County ( "Borrower ") promises to pay ONE HUNDRED TEN
THOUSAND DOLLARS (U.S. $110,000.00) or an much of the loan as may have been
disbursed and remain unpaid, with interest, if any, until paid, to Orange County, North Carolina
( "Lender "). Amounts advanced by Lender to protect its interest in the Property securing this
Note, if any, shall be added to the principal amount owing under this Note, shall accrue Interest
at the Default Rate from the date of advance until paid and shall be due and payable on demand.
3. Interest Rate. Interest shall accrue on the unpaid principal balance at a rate of
zem percent (0"/") per year.
4. Payments. No monthly principal or interest payments are required. All
unpaid principal amount of the loan shall be due and payable on the day of the earlier of the
following dates (the "Due Date "):
The date the Property is sold or transferred by the Borrower, whether voluntarily
or involuntarily or by operation of law, other than to a qualified assumer under
Paragraph 5;
b. The date a default occurs under the terms of any loan secured by alien to which
the Deed of Trust is subordinated;
C. Any date within 40 years after the date of recording of the last deeds of trust
securing the Lender's investment in the dwelling units that are the Project
described in the Development Agreement, if on or prior to that date, the Property
ceases to provide affordable housing, as defined in the Development Agreement.
5. Assumptions. The Note may be assumed only on the prior written approval of the
Lender. All terns and conditions of the Declaration of Restrictive Covenants, this Promissory
Note and the Deed of Trust shall remain in effect for any successor to Borrower and any
Successor shall assume all duties and obligations to the Borrower.
6. Place of Payments. Borrower shall make payments to Lender at Orange County
Housing, Human Rights and Community Development, Post Office Box 8181, Hillsborough, NC
1
27278, or 200 S. Cameron Street, Hillsborough, NC 27278 or such other address as Lender may
notify Borrower.
7. Prepayments. Borrower may make payments of principal, either in whole or in
part, at any time before they are due.
8. Late Charges. If this Note is paid in installments, and Lender has not received the
fall amount of any installment within 15 days after it is due, Borrower shall pay a late charge of
4% of the amount overdue.
9. Default.
a. If Borrower dues not pay the full amount of principal and interest due under this
Note within ten (10) days from the due date, this Note will be in default. If, after
the applicable cure period provided, if any, there exists an Event of Default under
any other document entered into in connection with the Loan; this Note will be in
default.
b. If this Note is in default, Leader, without further notice to Borrower, may require
Borrower to immediately pay the full amount of the principal which has not been
paid, any accrued interest and other sums due under this Note. Even if, at a time
the Note is in default, Leader does not require Borrower to pay immediately in
full, Lender will still have the right to do so at a later time if the default is
continuing or if the Note is in default at a later time. If this Note is in default,
Leader may employ an attorney to enforce Lender's rights and remedies,
Borrower agrees to pay Leader for all of its costs and expenses in enforcing this
Note to the extent not prohibited by applicable law. Thos7e expenses include, for
example, reasonable attorneys' fees based on time and expenses actually expended
at normal hourly rates.
c. If this Note is in default the sums due under this Note shall bear interest at ten
percent (10 %) per year (the "Default Rate ").
10. Waiver by Lender. Lender's rights and remedies as provided in this Note or any
other document executed in connection with the Loan shall be cumulative and may be pursued
singly, successively, or together. The failure to exercise any right or remedy will not be a waiver
or release of such right or remedy or the right to exercise any of them at another time.
11. Joint and Several Liability. If more than one person or entity signs this Note, each
person or entity is fully and personally obligated to keep all of the promises made in this Note,
including the promise to pay the full amount owed. Any person or entity who is a guarantor,
surety or endorser of this Note is also obligated to do these things. Any person or entity who
takes over these obligations, including the obligations of a guarantor, surely or endorser of this
Note, is also obligated to keep all of the promises made in this Note. The Lender may enforce its
rights under this Note against each person or entity individually or against all such persons or
entities together.
12. Waivers. Borrower and any other Person or entity who has obligations under this
Note waives the rights of protest, presentment, notice of dishonor and notice of acceleration of
maturity. "Presentment" means the right to require Holder to demand payment of amounts due.
"Notice of dishonor" means the right to require Holder to give notice to other persons that
amounts due have not been paid. Borrower and any other person or entity who has obligations
under this Note agree that their obligations shall continue even if Lender has agreed to the
release, modification or substitution of any security for this Note or to any extensions of time for
the payment of principal and interest under this Note.
13. Related Documents. The following documents have also been executed in
connection with the Loan (Check those which apply):
X opment Agreements between Habitat for Humanity of Orange County and Lender
dat L 2018.
• Declarations of ve Covenants between Habitat for Humanity of Orange County
and Lender dated 4( , 2018.
• Deed of Trust from orrower to John L. Roberts, Trustee for Lender beneficiary, dated
the same date as this Note.
The terms of those documents listed above are incorporated in this Note. Default under any of
the terms of the documents listed above shall be a default under this Note.
14. Governing Law. This note shall be governed and construed by the laws of the
State of North Carolina.
15. Assignment. The Borrower consents to the assignment of this Note transferring
the Lender's right, title and interest.
IN WITNESS WHEREOF, Borrower has caused this instrument to be signed in its
corporate name by its duly authorized officers and its sea] to be hereunto affixed by authority, of
its Board of Directors.
Habitat for Huma range C unty, N.C. Inc.
(S
Prisidem
ATTEST:
Secretary
MARK CHILTON
REGISTER OFDEEDS
ORANGE COUNTY, NC
NORTH CAROLINA
ORANGE
I do hereby certify this to be a true copy of the attached document filed and recorded in the
aforesaid county as evidence by Instrument Number
20180806000149760 in Book No. RB 6504 Page No. 457 and consists of 11 page /s.
Witness my hand and Official seal this 9 d1 day of August 2018
Mark Chilton
Register of q ds
By: ,JQoa Deputy
SEAL
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2
Orange County Register Of Deeds
Mark Chilton
228 South Churton Street, PO Box 8181
Hillsborough NC 27278
117
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20180806000149760 O/T
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Register of Dead% Orange Cc, fie
NC Reanatatlse X: S.00
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Prepared By and aft" recording return to: Orange County Attorney's Office, P.O. Box 8181, Hillsborough,
NC 27278
NORTH CAROLINA
ORANGECOUNTY
DEED OF TRUST AND SECURITY AGREEMENT
THIS DEED OF TRUST, AND SECURITY AGREEMENT ( "Deed of Trost") is made
as of this -M- day of July, 2018 by and among Habitat for Humanity, Orange County, N.C.
Inc., whose address is 88 Vilcom Center Drive Suite 1,110, Chapel Hill, North Carolina 27514
(Borrower "), John L. Roberts whose address is P.O. Box 8181, Hillsbomugh North Carolina,
27278 ( "Trustee "), and Orange County whose street address is 200 S. Cameron Street,
Hillsborough, North Carolina 28278 ( "Lender ").
WHEREAS, Borrower owes Lender for money advanced or to be advanced in the
principal sum of ONE HUNDRED TEN THOUSAND DOLLARS (U.S. $110,000.00) (the
"Loan ") as evidenced by a promissory note of even date herewith (the "Note "), the final payment
of which is due, together with interest thereon, as provided in the Note; and
WHEREAS, it has been agreed that the Loan will be made subject to the terms and
Conditions and in reliance upon the covenants contained in the Note, this Deed of Trust, and, the
following documents: (Check those which apply) (Hereinafter referred to either singularly or
collectively, as the "Loan Documents')
X Development Agreement between the Borrower and Lender dated
X Declarations of Restrictive Covenants between Borrower and der dated
X Promissory Nolk front'Borrower to the Lender dated the same date as
and Security Document.
This Deed of Trust secures to Lender: (a) The repayment of the debt evidenced by the
Note, with interest as provided in the Note, and all renewals, extensions and modifications of the
Note; (b) the payment of all other sums with interest as provided in the Note, advanced to protect
the security of this Deed of Trust; and (c) performance of Borrower's covenants and agreements
RBBW4U4UIUI�gI1 lU������u���������u������
RB6506 068 R/N
under the Loan Documents.
NOW, THEREFORE, in consideration of the Loan, and other valuable consideration, the
receipt of which is hereby acknowledged. Borrower hereby grants and conveys to Trustee his
successors and assigns all buildings, improvements, the 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 situated on real property located in Orange County, North Carolina, said real
property being more particularly described in Exhibit "A ", attached hereto and made a part
hereof by this reference, including by way of example and not limitation, all plumbing, heating,
lighting and air conditioning fixtures, refrigerators, ranges, hot water heaters, draperies and
carpets (hereinafter collectively referred to as the "Premises ").
TO HAVE AND TO HOLD said Premises with all privileges and appurtenances
thereunto belonging to Trustee, his successors and assigns, upon the trusts, terms and conditions
and for the purposes hereinafter set out. Borrower covenants with Trustee that Borrower 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 by
this reference; and that Borrower will warrant and defend title to the Premises against the lawful
claims of all persons whomsoever.
Upon payment in full of all sums secured by this Deed of Trust, Lender shall cancel this
Deed of Trust, of record at the request and cost of Borrower.
If, however, there shall be a default in any of the terms, covenants or conditions of the
Loan Documents or any advance secured hereby, and such default is not made good within any
cure period specifically granted in the Loan Documents, if any, all sums owing to Lender under
the Loan Documents shall immediately become due and payable, without notice, at the option of
Lender; and, on request of Lender, Trustee shall foreclose this Deed of Trust by judicial
proceedings or, at Lender'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 Borrower)
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. The Trustee's commission shall be five percent (5 %) of the gross
sales price for completed sale for all services performed by him hereunder. Lender 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 to immediately deposit with Trustee cash or certified check
in an amount equal to all or any part of the successful bid and notice of such requirement need
not be included in the advertisement of the notice of such sale.
Borrower covenants with Trustee and Lender (and their respective heirs, successors and
assigns) as follows:
1. Taxes. Borrower shall pay all taxes, charges and assessments, which may become a
lien upon the Premises before any penalty or interest accrues thereon and shall promptly deliver
R �11�1�45lU�I��I�Nlllllllllllllllllllllll
to Leader official receipts evidencing payment thereof.
2. Insurance. Borrower shall continually maintain insurance against loss by fire, hazards
included within the term "extended coverage ", and such other hazards, as Lender may require,
including flood, rent loss and business interruption, in such manner and in such companies as
Lender may from time to time require on the improvements now or hereafter located on the
Premises and in such amounts satisfactory to Lender, but at no time less than the outstanding
indebtedness secured by this Deed of Trust and any other lien against the Premises, plus an
amount sufficient to prevent any co- insurance liability of the Borrower or Lender, Borrower shall
promptly pay all premiums when due and deliver official receipts to Lender evidencing such
payment.
All insurance policies and renewals thereof shall be held by Lender and have attached
thereto a loss payable clause in favor of and in form acceptable to Lender and provide that no
such policy can be canceled without ten (10) days prior notice to Lender or materially amended
(including any reduction in the scope or limits of coverage) without Lender's prior written
approval. All policies of insurance shall contain an endorsement or agreement by the insurer that
any loss shall be payable in accordance with the terms of such policy notwithstanding any act of
negligence of Borrower which might otherwise result in forfeiture of such insurance and the
Rather agreement of the insurer waiving all rights of setoff, counterclaim or deductions against
the Borrower.
In the event of loss, Borrower shall give immediate notice by mail to Lender who may
make proof of loss if not made promptly by Borrower. Each insurance company is hereby
directed to make payment for such loss directly to Lender (instead of to Borrower and Lender
jointly). Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be
applied, at Lender's option, to the debt secured by this Deed of Trost or to the repair or
restoration of the Premises.
If the insurance proceeds are applied to the debt, it may be applied upon the portion last
falling due or in such other manner as Lender may desire.
In the event of foreclosure of this Deed of Trust or other transfer of title to or assignment
of the Premises in extinguishment of the indebtedness secured hereby, all right, title and interest
of Lender in any such insurance policies then in force shall pass to the grantee of the Premises.
3. 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 Lender. who may apply the sums so received to the portion of the debt hereby secured
last falling due or in such other manner as Lender may desire, subject to applicable law.
4. Repairs. Borrower 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.
5. Compliance with Laws. Borrower shall promptly comply with any applicable legal
R8e55004 460 I�4/11
requirements of the State of North Carolina or other governmental entity, agency or
instrumentality relating to the use or condition of the Premises.
6. Advancements by Lender. If Borrower shall be in default in the timely payment or
performance of any obligation under the Loan Documents, Lender, at its option, may pay the
sums for which Borrower is obligated. Further, Lender, 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) and to make repairs.
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
meant of the Note), shall bear interest from the time advanced, paid or expended at the into of
ten percent per year or such higher rate as may be prescribed in the Note, and be 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 at Lender's sole option, shall be due
and payable on demand and shall not constitute a waiver of any default or right arising from the
breach by. Borrower or any covenant or agreement contained in the Loan Documents.
7. Attomev's Fees. If Borrower shall default in its obligations under the Loan
Documents and in the opinion of Lender it becomes necessary or proper to employ an attorney to
assist in the enforcement or collection of the indebtedness owed by Borrower to Lender, or to
enforce compliance by Borrower with any of the provisions of the Loan Documents, or in the
event Lender or Trustee voluntarily or otherwise shall become a party or parties to any suit or
legal proceeding (including a proceeding conducted under the Bankruptcy Act), than in order to
protect the Premises herein conveyed, to protect the lien of this Deed of Trust, to enforce
collection of the indebtedness owed by. Borrower to Lender, or to enforce compliance by
Borrower with any of the provisions of the Loan Documents, Borrower agrees to pay reasonable
attorney's fees and all the costs that may reasonably be incurred, and such fees and costs, shall be
secured by this Deed of Trust and its payment eaforced as if it were a part of the original debt,
Borrower shall be liable for such reasonable attorney's fees and costs whether or not any suit or
proceeding is commenced. Reasonable attorney's fees shall be limited to fees for expenses
actually incurred and time actually spent at standard hourly rates.
8. Substitute Trustees. Lender shall have the unqualified right to remove 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 though he were named herein as the original Trustee.
9. Anti - Marshalling Provision. The right is hereby given by Borrower to Trustee and
Lender to make partial release or releases of security hereunder (whether or not such releases are
required by agreement among the parties) agreeable to Tmstee and Lender without notice to or
the consent, approval or agreement of other names and interest, including junior lienors and
purchasers subject to this which partial release or releases shall not impair in any manner the
110110 IIIIIIIIIIIII1I IIIIIIIIIIIIIII
RB5504 461 Sill
validity of or priority of this Deed of Trust on the Premises remaining hereunder, nor release
Borrower from liability for the indebtedness hereby secured. Notwithstanding the existence of
any other security interests in the Premises held by Lender or by any other party, Lender shall
have the right to determine the order in which any or all of the Premises shall be subjected to the
remedies provided herein. Lender 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. Borrower and any party who consents to this who has
actual or constructive notice hereof hereby waives any and all right to require the marshaling of
assets in connection with the exercise of any of the remedies permitted by applicable law or
provided herein
10. Additional Financing Prohibited. Borrower may not pledge or encumber the Premises
herein conveyed without first obtainimg Lender's written consent.
11. 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 Borrower hereby grants Lender a
security interest in said items. Borrower agrees that Lender may file this Deed of Trust as a
financing statement, and at Lender's request agrees to execute such financing statements,
extensions or amendments as Lender may require to perfect a security interest with respect to
said items. In the event of default, Lender shall have, in addition to its other remedies, all rights
and remedies provided for in the Uniform Commercial Code as enacted in North Carolina.
12. Events of Default. Any of the following shall constitute an "Event of Default"
hereunder:
a. The failure to make when due any payment, whether of principal in interest under the
Note;
b. The failure to make any other payment to Lender required by the Loan Documents
within ten (10) days after notice from Lender directing Borrower to make the
payment, but in any event before the same is past due;
c. Any covenant, representation, warranty made by Borrower or material Information
supplied to the Lender proves to be materially false or misleading when made or
given; the transfer of all or part of the Premises (including a beneficial interest)
without Lender's prior written consent;
d. The death, dissolution, merger, consolidation or termination of existence of Borrower
or any guarantor hereof or the transfer of any beneficial interest in Borrower without
Lender's prior written consent (if Borrower is a married couple, the death of Borrower
means the death of the survivor of the married couple);
e. The application for the appointment of a receiver for Borrower or any guarantor; or
the filing of a petition under any provisions of the Bankruptcy Code or Act by
Borrower or any guarantor; or the filing of a petition under any provisions of the
111�111U11V�1UI�11U���� ►►��►����������������
RB6500 663 6111
Bankruptcy Code or Act against Borrower or guarantor which is not dismissed within
30 days; or the filing of an answer in an involuntary proceeding admitting insolvency
or inability to pay debts; or any assignment for the benefit of creditors by or against
Borrower or any guarantor; or the attachment, execution or other judicial seizure of
any portion of Borrower's or any guarantor's assets which is not discharged within ten
(10) days; or
The failure of any Borrower to perform any other non - monetary obligation or
condition of the Loan Documents within 30 days after notice from Lender; provided
that if such default cannot reasonably be cured within 30 days, it shall not constitute
an Event of Default as long as Borrower is diligently pursuing such cure unless it is
not cured within 180 days after the original notice of default from Lender.
Upon any Event of Default, the entire principal sum evidenced by the Note and accrued
but unpaid interest hereon may, at the sole option of Lender, be declared at once due and
payable, time being of the essence of this obligation. Failure of Lender to exercise this option in
the event of any Event of Default shall not constitute a waiver of the right of Lender to exercise
the same in the event of a subsequent Event of Default.
13. Use of Premises. Unless required by applicable law or unless Lender has otherwise
agreed in writing, Borrower 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. Borrower shall not initiate or
acquiesce in a change in the zoning classification of the Premises without Lender's prior written
consent.
14. Insoection. To assure and protect its rights under this Deed of Trost, Lender shall
have the fight to access and inspection of the Premises at reasonable times and upon reasonable
notice to Borrower.
15. Application of Payments. All payments and other sums of money received by Lender
shall be applied by Lender first to amounts due Lender for Advancements or Attorney's Fees
pursuant to this Deed of Trost, then to interest payable of the Note, then to the principal of the
Note, then to other payments due under the Loan Documents including equity payments
provided for in the Development Agreement and the Declaration of Restrictive Covenants.
16. Environmental Issues.
Borrower warrants that, (i) to the best of Borrower's knowledge, the Premises and the
land described in Exhibit A attached hereto (the "Land ") are free of Hazardous
Materials, (ii) neither Borrower, nor to the best of Borrower's knowledge, anyone else
connected with the Premises or the Land has received any notice from any
governmental agency, entity or other person with regard to Hazardous Materials,
from or affecting the Premises or the Land, and (iii) to the best of Borrower's
knowledge, there is not now pending or threatened any action, suit, investigation or
proceeding against Borrower relating to the Premises or the Lender (or against any
other party relating to the Premises or the Land) seeking to enforce any right or
11111111�1 VV1111111111111111111111111
remedy under any of the Environmental Laws.
b. Borrower covenants and agrees that (i) the Premises shall be kept free of Hazardous
Materials, (ii) Borrower shall not cause nor permit the presence, use, disposal,
installation, generation, manufacture, transportation, storage, release or treatment of
Hazardous Materials in or on the Premises of the land and (iii) Borrower 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 the Land and shall keep
the Premises and the Land free and clear of any liens imposed pursuant to any
applicable Environmental Laws. The preceding sentence shall not apply to the
presence, use or storage on the Premises of small quantities of Hazardous Materials
that are generally recognized to be appropriate to normal residential use and to
maintenance of the Premises.
c. Borrower shall immediately give Lender written notice of any investigation, claim,
demand, lawsuit or other action by any party involving the Premises or the Land and
any Hazardous Materials of Environmental Law of which Borrower has actual
knowledge. If Borrower learns, or is notified by any governmental or regulatory
authority, that any removal or other remediation of any Hazardous Materials affecting
the Premises or the Land is necessary, Borrower shall promptly take all necessary
remedial actions in accordance with all applicable Environmental Laws.
d. Borrower hereby agrees to indemnify Lender and hold Lender harmless from and
against any and all losses, liabilities, damages and claims of any and every kind
whatsoever paid, incurred or suffered by or asserted against Lender for, with respect
to, or as a direct or indirect result of
(i) the presence on or release from the Premises or the Land prior to the cancellation
of this Deed of Trust of any Hazardous Material, regardless of whether or not caused
by or within the control of Borrower,
(ii) the violation of any Environmental Laws prior to the cancellation of this Deed Of
Trost relating to or affecting the Premises or the Land, whether or not caused by or
within the control of Borrower,
(iii) the failure of Borrower to comply fully with the terms and provisions of this
section, or
(iv) any warranty or representation made by Borrower in this section being false or
untrue in any material respect.
e. For purposes of this Deed of Trost:
(i) "Hazardous Material" means petroleum products, any flammable explosives,
radioactive materials, asbestos or any material containing asbestos, and/or any
hazardous, toxic or dangerous material defined as such in or for the purpose of the
►► lVU1U1► �uulul iJUu���►�►►►►►�►�►�►►►►►i�►►
RB6504 464 9I11
Environmental Laws.
(ii) "Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous Materials Transportation Am, the
Resource Conservation and Recovery Act, any "Superfund" or "Superlien" law, or
any other federal state or local law, regulation or decree regulating relating to or
imposing liability standards of conduct concerning any petroleum products, any
flammable explosives, radioactive materials, asbestos or ally material containing
asbestos, and/or hazardous, toxic or dangerous material, as may now or at any
time hereafter be in effect.
f. The obligations and liabilities of Borrower under this section shall survive the
foreclosure of the Deed of Trust, the delivery of a deed in lieu of foreclosure, the
cancellation of the Note, or the sale or alienation of any part of the Premises or the
Land.
17, Statute Inapplicable. The provisions of § 4545.1 of the North Catalina General
Statutes, or any similar statute hereafter enacted in replacement or substitution thereof shall be
inapplicable to this Deed of Trust.
18. Definition. As used herein, the terms `Borrower," "Trustee ", "Lender" 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.
19. Future Advances (Check if applicable). If this paragraph is checked, this Deed of
Trust is given wholly or partially to secure future obligations which may be incurred hereunder
pursuant to the provisions of Sections 45 -67, et seq., of the North Carolina General Statutes; the
amount of present obligations secured hereunder is and /100 Dollars
($_); the maximum amount (including present as well as future advances) to be advanced
hereunder shall not exceed the face amount of the Note, provided such future obligations are
incurred not later than C_ ) years after the date of the Note; and no
execution of a written instrument or notation shall be necessary to evidence or secure any future
advances made hereunder.
[SIGNATURE PAGE TO FOLLOW]
R VUIUII�U 1111111111��►�►►�►►►�►���►►�►
RB5504 465 9111
IN WITNESS WHEREOF, Borrower has caused this instrument to be signed in its corporate
name by its duty authorized officers by authority of its Board of Directors.
Habitat for Humanity, Orange County, N.C. hec.
G
NORTH CAROLINA
ao.ws15 COUNTY
I, the undersigned, a Notary Public for the state and county aforesaid, certify that
S..s.. W � " personally appeared before me this day and acknowledged that he/she
is the of Habitat for Humanity, Orange County, N.C. hie.
and that he/,&?as C&ymct «C , by the authority duly given and as the act of the company,
executed the foregoing on behalf of the company.
v
Witness my hand and official stamp or seal this the l At day of
NOTARY PI/BLIO
ORANGE OOMITY
S1ATE OF NORTH CAROLMA u lic
MY COMMISSION EXPIRES 1-I&Mt Prin[ed Name: Vrve. A• ao ph le
My Commission Expires:
11111 M IM
RB6504 466 10/11
EXHIBIT A
Property Description
Property at 211 Odic Street PIN # 9865 -51 -6149, being all that certain tract or parcel of
land, approximately 1 acre, appearing of record in Book 272, Page 1319 Orange County,
North Carolina Registry to which reference is made for a more particular description.
10
11111111111 IN 111111mIIIIIIIIIIIIIII
RB6506 467 11/11
EXHIBIT B
None