Loading...
HomeMy WebLinkAbout2018-367 Housing - Community Home Trust Restrictive Covenantst V 20180820000160590 DECL Bk:RB6511 Pg:480 08/20/2018 04:24:17 PM 1/9 FILED Mark Chilton Register of Deeds, Orange Co,NC Recording Fee: $26.00 NC Real Estate TX: $.00 Prepared by and return to: Anne Marie Tosco, Orange County Attorney's Office P.O. Box 8181; Hillsborough, NC 27278 DECLARATION OF RESTRICTIVE COVENANTS (S)o lqp THIS DECLARATION OF RESTRICTIVE COVENANTS (Declaration), dated 1� a 44\& , by Community Home Trust, Inc. of Orange County, NC, Inc. for itself and its 94ccess6rs and assigns ( "Owner "), is given as a condition precedent to the award of Orange County HOME Investment Partnership Program funds. RECITALS: WHEREAS, the Orange County HOME Consortium has designated $16,670.90 in FY 2013 HOME funds for the purpose of homeownership assistance for first -time homebuyers of Land Trust homes by reducing the purchase price to meet buyers' affordability needs hereafter referred to as the "Project" or the "project dwelling units "; 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. seg.) (hereinafter referred to as the "Act "), and as further defined in the Federal Program Requirements provided by the U.S. Department of Housing and Urban Development; and WHEREAS, the Community Home Trust (CHT) formerly known as Orange Community Housing and Land Trust (OCHLT) intends to provide financial assistance to up to five (5) first -time homebuyers by making housing available for lease, as described herein, to families who earn less than 80% of HUD area median income as described in CHT's Application for Funding dated May 10, 2018, which Application is incorporated by reference into this Agreement and is on file in the Orange County Department of Housing and Community Development; and WHEREAS, a first -time homebuyer for the purposes of this program is defined as any low income household that has not owned a home within the past three (3) years including � iijl IJ]1in111111n1111i11 RB6511 481 2/9 households living in manufactured housing not permanently affixed to a foundation, or owner- occupants of homes not feasible for rehabilitation and has lived or worked in Orange County for at least one year prior to the home purchase; and WHEREAS, as particularly described herein, the Property will be held by CHT, ensuring affordability of the project dwelling unit for at least 99 years; and WHEREAS, CHT has signed this Declaration agreeing to the terms of this Declaration, its obligations pursuant to this Declaration and agreeing to the terms of the Development Agreement between the County and CHT of even date; and NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations contained herein, it is agreed between the parties hereto as follows: SECTION 1 REPRESENTATIONS, COVENANTS AND WARRANTIES OF OWNER CHT hereby represents, covenants and warrants as follows: a. Subject to the requirements of the GRANT AGREEMENT, an unsigned copy of which is Exhibit B hereto, and this Declaration, CHT 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 the County, but Owner shall notify in writing and obtain the agreement of any buyer or successor or other person acquiring the Property or any interest therein, that such acquisition is subject to the requirements of this Declaration and to the requirements of the GRANT AGREEMENT and the Federal HOME Investment Partnership Program. CHT agrees that County may void any sale, transfer, or exchange of the Property or any portion of the Property if the buyer or successor or other person fails to assume in writing the requirements of this Declaration and the requirements of the GRANT AGREEMENT. b. Contemporaneously with the execution, delivery and recording of this Declaration, CHT will acquire good and marketable title to the Property, free and clear of any lien or encumbrance (except encumbrances created pursuant to this Declaration or other encumbrances permitted by Orange County). C. CHT warrants that it will not accept title to the Property subject to and will not execute any other declaration with provisions contradictory to, or in opposition to, the provisions hereof, and that in any event, the requirements of this Declaration are paramount and controlling as to the rights and obligations herein set forth and supersede any other requirements in conflict herewith. SECTION 2 TERM OF DECLARATION a. This Declaration (and the terms of affordability specified herein) applies to the Property immediately upon the recordation of this Declaration. CHT and all subsequent owners of the 2 i�iijiilii 1�ilj RB6511 482 3/9 Property shall comply with all covenants herein. This Declaration shall terminate ninety -nine years after the Project completion date as specified in the GRANT AGREEMENT. SECTION 3 RECORDING AND FILING; COVENANTS TO RUN WITH THE LAND a. CHT shall cause this declaration and all amendments hereto to be recorded and filed in the Office of the Register of Deeds of Orange County upon its execution. CHT shall pay all fees and charges incurred in connection therewith. b. CHT intends, declares and covenants, on behalf of itself and all future owners of the Property during the term of this Declaration, that this Declaration and the covenants and restrictions set forth in this Declaration regulating and restricting the use, occupancy and transfer of the Property (1) shall be and are covenants running with the land, encumbering the Property for the term of this Declaration, binding upon all present and future owners of the Property; (2) are not personal covenants of Declarant; and (3) shall bind all present and future owners (and the benefits shall inure to the County and any prospective owner of the Property) and its respective successors and assigns during the term of this Declaration. For the term of this Declaration, each and every contract, lease, deed or other instrument hereafter executed conveying the Property or portion thereof shall expressly provide that such conveyance is subject to this Declaration, provided, however, the covenants contained herein shall survive and be effective regardless of whether such contract, lease, 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 CHT to rerecord this Declaration periodically and no less often than one day less than every 30 years from the date hereof for the purpose of renewing the rights of first refusal in the Property or portion thereof including any leasehold interest in the Property or portion thereof. The County retains the right to, periodically and every 30 years after the first recording of the Ground Lease created in Exhibit C hereof, register, with the Register of Deeds of Orange County, a notice of preservation of the Restrictive Covenants on the Property as provided in North Carolina General Statute § 47B -4 or any comparable preservation law in effect at the time of the recording of the notice of preservation. It is the intent of this Section 3 of this Declaration that the 99 year duration of this Declaration of Restrictive Covenants be accomplished and that any future owner of the Property, CHT and Orange County will do what is necessary to ensure that the same is not extinguished by N.C. Gen. Stat. § 41 -29 or any comparable law purporting to extinguish, by the passage of time, preemptive rights in the Property and by the Real Property Marketable Title Act or any comparable law purporting to extinguish, by the passage of time, non possessory interests in real property. Any future owner of the Property, CHT and Orange County will to do what each must do to accomplish the 99 year duration of this Declaration of Restrictive Covenants. SECTION 4 ENFORCEMENT OF AFFORDABLE HOUSING REQUIREMENTS a. At the time of resale of the project dwelling unit, CHT will convey a housing unit to qualified homebuyer. Each housing unit will consist of a 99 year Ground Lease (renewable for an additional 99 years) to the project dwelling unit. The Ground Lease, the form of which is Exhibit C hereto, provides for the long term affordability (at least 99 years) of the housing unit and provides remedies to insure the long term affordability of the housing unit. CHT hereby RB65il 483 4/9 declares and covenants, on behalf of itself and all future owners of the Property, that, during the term of this Declaration, the County is a third party beneficiary of and successor to each and every remedy intended to insure the long term affordability of the housing unit that is provided for in the Ground Lease and may, in the event of the failure or default of the Lessor in the Ground Lease to insure the long term affordability of the housing unit as provided for in the Ground Lease, exercise all rights and remedies available to the Lessor in the Ground Lease for that purpose. b. CHT covenants that it will not knowingly take or permit any action that would result in a violation of the affordability requirements of the GRANT AGREEMENT. Orange County, together with any future owner of the Property may execute and record any amendment or modification of this Declaration necessary to insure the successful completion of the Project and the long term affordability (at least 99 years) of the housing units on the Property and such amendment or modification shall, to the extent permitted by law, either relate back to the date of recording of this Declaration or not as necessary to carry out the intent of this Declaration, and be binding on third parties granted rights under this Declaration. CHT expressly covenants and agrees to rerecord this Declaration periodically and no less often than one day less than every 30 years from the date hereof for the purpose of renewing the Lessor's option to purchase and right of first refusal, that are contained in the Exhibit C Ground Lease, in the Property or portion thereof including any leasehold interest in the Property or portion thereof. C. CHT acknowledges that the primary purpose for requiring compliance by CHT with restrictions provided in this Declaration is to assure compliance with the long term affordability requirements of the HOME INVESTMENT PARTNERSHIP PROGRAM, AND BY REASON THEREOF, CHT, IN CONSIDERATION FOR RECEIVING HOME INVESTMENT PARTNERSHIP PROGRAM FUNDS FOR THE PROPERTY, HEREBY AGREES AND CONSENTS THAT THE 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 CHT' S OBLIGATIONS UNDER THIS DECLARATION IN A STATE COURT OF COMPETENT JURISDICTION, WITH VENUE IN ORANGE COUNTY. CHT hereby further specifically acknowledges that the beneficiaries of CHT's obligations hereunder cannot be adequately compensated by monetary damages in the event of any default hereunder. If legal costs are incurred by the County, such legal costs, including attorney fees and court costs (including costs of appeal), are the responsibility of, and may be recovered from the CHT. 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. 1�11]111 I [� �j I RB6511 484 5/9 b. Notices. Any Notice shall be in writing and shall be given by depositing the same in the United States mail, post -paid and registered or certified, and addressed to the party to be notified, with return- receipt requested, or by delivering the same in person to an officer or principal of such party. Notice deposited in the mail in the manner herein above described shall be effective upon mailing. For purposes of Notice, the addresses of the parties shall, unless changed as hereinafter provided, be as follows: i. To the County: Orange County c/o Housing and Community Development Department P.O. Box 8181 Hillsborough, NC 27278 ATTN: Director ii. To Declarant: To CHT: Community Home Trust 109 Conner Drive, Suite 1000 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, CHT has caused this Declaration to be signed by its duly authorized representative, on the day and year first above written. [SIGNATURES APPEAR ON FOLLOWING PAGE] [iiiiiiii �il 1i][JI]IIIIIIIII I III RB6511 485 6/9 Community Home Trust, Inc. B LOY �1 �• 1n1041v�n �(�1 , P�� NORTH CAROLINA ORANGE COUNTY I, , Notary Public in and for the above named County and State, do hereby cert ify that on +14's day personally appeared before me ( Oyi 5.1N6d1Wl yith whom I am personally acquainted, who, being by me duly sworn, says that he is I of Community Home Trust, Inc., a North Carolina corporation, and that by authority duly given J and as the act of the corporation, the foregoing instrument was signed by him on behalf of the corporation. Witness my hand and notarial seal, this the /� day of , 20 «. No ry ublic My commission expires: H AMY MILLARD- SLAUGHTER Notary Public, North Carolina Orange County MY Co is io Expires I�plpj; 4�i lIa�III�IP�n�llllllllll'I�IIII %6511 486 7/9 EXHIBIT A BEING all of Unit Number 2205 of EAST 54 RESIDENTIAL CONDOMINIUM as described in the Declaration of East 54 Residential Condominium dated August 28, 2009, and recorded in Book 4817, Page 434, and amended at Book 4952, Page 284 Orange County Registry, and on the Plat and Plans for East 54 Residential Condominium recorded in Plat Book 106, Pages 8 through 22 and Plat Book 107, Pages 32 through 41, Orange County Registry. PIN: 9798 -34- 5972.086 RB6511 487 8/9 EXHIBIT B Grant Agreement RB6511 483 9/9 EXHIBIT C Ground Lease Agreement