HomeMy WebLinkAbout2018-674-E Housing - Habitat HOME Agreement 2017-181
NORTH CAROLINA
ORANGE COUNTY
DEVELOPMENT AGREEMENT
This is an AGREEMENT between ORANGE COUNTY,a local governmental political
subdivision of the State of North Carolina, (hereinafter referred to as the “County”) and
HABITATFOR HUMANITY OF ORANGE COUNTY, NC, INC.,a North Carolina non-
profit housing organization (hereinafter referred to as “Habitat”). The effective date of this
Agreement isJune 1, 2018.
WITNESSTH
WHEREAS, the Orange County HOME Consortium has designated $211,830in FY 2017-
18HOME funds to provide funding for second mortgage funding for eleven(11)newly constructed
homes located in Orange Countyinthe Fairview Community in Hillsborough and Tinnin Woods
subdivision in Eflandwhicharehereinafter designated collectively as “the Property” or “the
Properties”;and
WHEREAS, Orange County is the lead entity of the Orange HOME Consortium, so
designated in an agreement dated July 1, 2011, and as such is the lead entity in a representative
capacity for all members of the Orange HOME Consortium for the purposes of carrying out the
HOME Program in accordance with the Title II of the Cranston-Gonzalez National Affordable
Housing Act (Pub. L. 101-625), (42 U.S.C. 3535(d.) et.seq.)(hereinafter referred to as the "Act"),
and as further defined in the Federal Program Requirements provided by the U.S. Department of
Housing and Urban Development; and
WHEREAS,Habitatis constructing the housing units on the Properties for first-time
homebuyers earning between 30% and 65% of HUD area median income described in Habitat’s
FY 2017-18Application for Funding,Orange County HOME Program dated,January 31, 2017
which ishereby incorporated into this Agreementas if written herein, and hereafter referred to as
“The Project.” A copy of the 2017-18HOME Program Applications areon file in the office of
the Orange County Housing and Community Development Department; and
WHEREAS,Habitatintends to assisteleven(11)first-time homebuyers,whoearn
between 30% and 65% of HUD area median income,to purchase the newly constructed housing
unitsat the Properties; 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 pastthree(3) yearsincluding
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;
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WHEREAS,notwithstanding any provision of this Agreement, the County and Habitat
hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or
site approval, and that such commitment of funds or approval may occur only upon satisfactory
completion of an environmental review and receipt by Orange County of a Release of Funds
from the U.S. Department of Housing and Urban Development under 24 CFR Part §58 if
applicable. The parties further agree that the provision of such funds to the project is
conditioned on Orange County’s determination to proceed with, modify, or cancel the project
based on the results of a subsequent environmental review.
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
representations contained herein, it is agreed between the parties hereto as follows:
I.USE OF HOME FUNDS/SUBSIDY TYPE
A.Habitatshall perform the projects or tasks related to its allocation of HOME funds as
provided in this Agreement, Exhibit A, Scope of Services,Exhibit B, Proposed Budget
and Source of Fundsand the Declaration of Restrictive Covenantsthe form of which is
attached as Exhibit C.All Exhibits, attachments and addendums annexed hereto or
referred to herein are hereby incorporated intoand made a partof this Agreement as if set
forth herein, as it now reads or as it may be modified by theParties.
B.Habitatmay not request disbursement of funds under this Agreement until the funds are
needed for payment of eligible costs. The amount of each request must be limited to
eligible costs as determined by Orange County staff.
C.Said funds shall be disbursed by check payable toHabitat.
D.HOME funds will be a fixed subsidy provided in the form of adeferred loan.
II.AMOUNT OF HOME FUNDS/LOAN TERMS
A.The County shall make available to Habitatup to Two Hundred Eleven Thousand
Eight Hundred Thirty Dollars ($211,830) at an interest rate of zero percent (0%)
pursuant to this Agreement.
1.The funding provided by the County will be provided as a fixed subsidy in the
form of a deferred second mortgage to the individual families at the time of
saleof the Property to them. The investment will be secured by a forty (40)
year Deed of Trust (Exhibit D) and Promissory Note (Exhibit E)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 Requirementsof this Agreement, the
form of which is providedin Exhibit Cand any lien as provided in subsection
3 below.
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3.At the time of closing of the sale of each of the dwelling units to a homebuyer,
the homebuyer shall receiveHOME funds as second mortgage assistance
which shall be documented by a Promissory Note from the homebuyer to the
County,which shall be secured by a Deed of Trust on the Properties naming
the County as beneficiary. The County agrees to subordinate its Deed of Trust
lien to a lien securing private permanent financing acquired by the
homebuyer.
B.Said funds shall be disbursed by the County to Habitatfor performance of the services
described in Exhibit A.
III.LIEN POSITION
Orange County hereby acknowledges that the terms and conditions of its (i) HOME Program
Development Agreement, (ii) Promissory Note, (iii) Deed of Trust and Security Agreement and
(iv) Declaration of Restrictive Covenants (collectively referred to as “Orange County Loan
Documents”), shallnot expressly subordinated to any other documentsexcept those documents
scribed in §§ II.A.2. and II.A.3 above.
IV.TIMELINESS
Habitat shall complete the Project by December 31, 2020and sell all homes by June 30,
2021. However, in the event of any alterations or additions or of circumstances beyond the
control of Habitat, which in the opinion of the Director of the County’s Department of Housing,
Human Relations andCommunity Development 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 extensions will require the
approval of the Orange County Board of County Commissioners.
V.DURATION OF THE AGREEMENT
This Agreement will remain in effect for the Period of Affordability established below.
VI.AFFORDABILITY REQUIREMENTS
A.Habitatagrees tobuild and sell the Project dwelling units to eleven(11)low income
families earning between 30% and 65% of the area median incomeas determined
during the initial eligibility period.Families may not earn more than 80% of the area
median income at the time of sale of the property.Area Median Income by family
size is determined by the U.S. Department of Housing and Urban Development and
amended from time to time.
B.The Declaration of Restrictive Covenants shall provide that each of the Project
dwelling units must remain affordable for a period of ninety-nine years.Habitatshall
retain full responsibility for compliance with the affordability requirement for each of
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the Project dwelling units, unless affordability restrictions are terminated due to the
sale of the Property to a non-qualified buyer. In the event of a sale of the Property to
a non-qualified buyerby the homebuyer,the RecaptureProvisions of this Agreement
pertainand Habitat assurescompliance with affordability of each of the Project
dwelling units as provided in the Declaration of Restricted Covenants on the
Property. TheDeclaration of Restricted Covenants shall constitute and remain a lien
on the Property during the entire period of affordability.
C.Habitat agrees to retain full responsibility for compliance with the Affordability
Requirements provided in Section IV.Babove and the RecaptureProvisions provided
in Section 4B of Exhibit C, Declaration of Restrictive Covenants.
VII.HABITATPERFORMANCE UNDER THIS AGREEMENT
A.Habitatagrees 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.Habitatagrees to not violate any State or Federal laws, rules or regulations regarding a
direct or indirect illegal interest on the part of any employee or elected official of Habitat
in the Project or payments made pursuant to this Agreement.
C.Habitatagrees that to the best of its knowledge, neither the Project nor the funds provided
therefore, and the personnel employed in the administration of the program shall be in
any way or to any extent engaged in the conduct of political activities in contravention of
Chapter 15 of Title 5, United States Code, referred to as the Hatch Act.
D.Habitatshall 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." Habitatshall submit
to the County copy of said audit report. Habitatshall 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 Habitatrelatingto its performance under the
Agreement.
E.County shall provide, upon request, copies ofall laws, regulations and orders cited in this
Agreement.
F.Habitatand County shall at all times observe and comply with Title 24 CFR Part 92 and
all applicable laws, ordinances or regulations of the Federal, State, County, and local
government, which may in any manner affect the performance of this Agreement, and
Habitatshall perform all acts with responsibility to the County in the same manner as the
County is required to perform all acts with responsibility to the Federal government.
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G.Habitathereby assures and certifies that it will comply with the regulations, policies,
guidelines and requirements with respect to the acceptance and use of HOMEfunds in
accordance with the policies of the County. Also, Habitatcertifies with respect to the
Project thatitwill be conducted and administered in compliance with:
1.Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352, 42U.S.C.§§2000d et
seq.) and implementing regulations issued at 24 CFR Part I;
2.Title VIII of the Civil Rights Act of 1968 (Pub. L. 90-208,42 U.S.C. §§2000d at
seq.), as amended; and that Habitatwill administer all programs and activities
related to housing and community development in a manner to affirmatively
further fair housing;
3.Section 109 of the Housing and Community Development Act of 1974, as
amended; and the regulations issued pursuant hereto;
4.Section 3 of the Housing and Urban Development Act of 1968, as amended;
5.Executive Order 11246-Equal Opportunity, as amended by Executive Orders
11375 and 12086, and implementing regulations issued at 41 CFR Chapter 60;
6.Executive Order 11063-Equal Opportunity in Housing, as amended by Executive
Order 12259, and implementing regulations at 24 CFR Part 107;
7.Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended, and
implementing regulations when published in effect;
8.The Age Discrimination Act of 1975 (Pub. L. 94135), as amended, and
implementing regulations when published for effect;
9.The Fair Housing Act (42 U.S.C. 3601-20);
H.Habitatcertifies by executing this Agreement that theyhavenot been identified, and have
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 Habitat
certifies that they havenot been identified, and havenot 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 Habitataffirms they are and shall remain in
compliance with Article 2 of Chapter 64 of the North Carolina General Statutes.
VIII. ADMINISTRATION AND REPORTING REQUIREMENTS
Habitatshall submit to the County a quarterly Progress Report no later than the fifth day
of the months of January, April; July; October until the activity has been reported completed.
IX.MISCELLANEOUS PROVISIONS
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A.Uniform Administrative Requirements. Habitatmust comply with the applicable
uniform administrative requirements of 24 CFR §92.505.
B.Other Program Requirements. Habitatmust carry out each activity in compliance with
all Federal laws and regulations described in 24 CFR, Part 92, subpart H except that the
subrecipient does not assume the responsibilities for environmental review or
intergovernmental review.
C.Affirmative Marketing. If HOME funds will be used for housing containing five (5) or
more assisted units, Habitatmust prepare and submit an Affirmative Marketing Plan to
the County.
D.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 Habitatfor the assisted units as follows:
1.In the event that Habitatisunable to proceed with any aspect of the Project in a
timely manner, and County and Habitatdeterminethat reasonable extension(s) for
completion will not remedy the situation, then Habitatwillretain responsibility for
requirements for any dwelling units assisted and County will make no further
payments to the Habitat.
2.In the event that Habitat, 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 Habitat shall, upon
the County’s request, convey to the County the Property assisted with HOME funds.
Conveyance shall be at the sole discretion of County and on a Project dwelling unit
by Project dwelling unit basis.Conveyance shall be on the terms set forth herein:
a.Conveyance shall occur within thirty (30) days of County and Habitat's agreement
of the Habitat’s inability to continue as a viable organization.
b.Habitatshall 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).
E.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.
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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.
F.Books and Records.Habitatshallmaintain records of its grant requirements under this
contract for a period of not less than five (5) full fiscal years following the contract
completion date.
1.Habitatshallensure access to records and financial statements, as necessary, to
provide effective monitoring and evaluation of project performance. Additionally,
Habitatshallsubmit a copy of its annual audit to the County.
2.Upon reasonable advancenotice, County or its authorized representatives may from
time to time inspect, audit, and make copies of any of Habitatrecordsthat relate to
this contract. If any audit by County discloses that payments to Habitatwerein excess
of the amount to which Habitatwasentitled under this contract, Habitatshall
promptly pay to County the amount of such excess. If the excess is greater than 1% of
the contract amount, Habitatshallalso reimburse County its reasonable costs incurred
in performing the audit.
3.Habitatshall maintain files of allhomebuyers, regardless of length of occupancy,
residing in assisted units. Documentation shall verify eligibility for federal assisted
housing at the point of initial purchase. Information maintained shall include: tenant
income level; name of family members; ethnic data; family type –e.g. female head of
household; disability status; and monthly rent.
4.Habitatshallmaintain records verifying the affordability of the dwelling units.
G.Notices.Any Notice shall bein 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
principalof such party. Notice deposited in the mail in the manner here in above
described shall be effective upon mailing. For purposes of Notice, the addresses of the
parties shall, unless changed as hereinafter provided, be as follows:
1.To the County:Orange County
c/o Housingand Community DevelopmentDepartment
P.O. Box 8181
Hillsborough, NC 27278
ATTN: Director
2.To Habitat:Habitatfor Humanity
88 Vilcom Center Drive, Suite L110
Chapel Hill, NC 27514
ATTN: Executive Director
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Either the County or Habitatmay change the person or address to which any future
Notice shall be given as herein provided.
H.No Assignment. No transfer or assignment of the interest of Habitation this Agreement
shall occur without the prior written consent of the County; neither may Habitatassign
this Agreement without the prior written consent of County.
I.Conflict of Interest.Habitatagrees to abide by the provisions of 24 CFR 570.611 with
respect to conflicts of interest, and covenants that it presently has no financial interest and
shall acquire any financial interest, direct or indirect, that would conflict in any manner or
degree with the performance of services required under this Agreement. Habitatfurther
covenants that in performance of this Agreement no person having such a financial
interest shall be employed or retained by Habitathereunder. These conflicts of interest
provisions apply to any person who is an employee, agent, consultant, or elected official
or appointed official of the County, or any designated public agencies or subrecipients
that are receiving funds under the County HOME Investment Partnership Program.
J.Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
K.Indemnification.To the extent legally possible, Habitatshall 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 Habitat, its employees, agents,
officers, and contractors in connection with this contract. In the event any such action or
claim is brought against County, Habitatshall, upon County's tender, defend the same at
The Habitat’s or Habitat’s sole cost and expense, promptly satisfy any judgment adverse
to County or to County and Habitatjointly, and reimburse the County for any loss, cost,
damage, or expense, including attorney fees suffered or incurred by the County.
L.Subcontracting.Habitatshall not subcontract work under this Agreement, inwhole or
in part, without the County's prior written approval. Habitatshall 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 Habitat
specified in this contract. Notwithstanding County's approval of a subcontractor, Habitat
shall remain obligated for full performance of this contract and County shall incur no
obligation to any subcontractor. Habitatshall indemnify, defend, and hold County
harmless from all claims of its contractors.
M.No Joint Venture or Agency. The County and Habitateach agree and acknowledge that
nothing contained herein or otherwise, including, without limitation, any act of the
Countyand Habitatunder this Agreement, shall be deemed or construed to create any
relationship of joint venture, partnership or agency between the parties.
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N.Effect of Waiver or Forbearance. No failure by the County to insist upon the strict
performance of any term or condition of this Agreement, or to exercise any right or
remedy upon the breach by Habitatof 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 Habitatbe a
waiver by the County of its rights and remedies with respect to that or any other breach.
O.Governing Law. This Agreement shall be construed in accordance with and governed
by the laws of the State of North Carolina. Any litigation arising out of this Agreement
shall be brought in courts sitting in North Carolina, with venue in Orange County.
P.Severability.The provisions of this Agreement are independent of and separable from
each other, and no provision shall be affected or rendered invalid or unenforceable by the
fact that for any reason any other provision ma y 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 CountyandHABITATagree 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 CountyandHABITATcannot agree, they shall apply to a
court of competent jurisdiction to substitute such provision as the court deems reasonable
and judicially valid, legal and enforceable. Such provision determined by the court shall
automatically be deemed part of this Agreement ab initio.
Q.Equal Opportunity.HABITATshall not discriminate against any employee or
applicant for employment because of race, color, religion, sex, national origin, political
affiliation or belief, age, handicap, or familial status in the implementation of the Project.
R.Headings. Headings are for convenience only and shall not be used to interpret or
construe its provision.
S.Gender; Singular and Plural. As used herein, the neuter gender includes the feminine
and masculine. The masculine includes the feminine and neuter, and the feminine
includes the masculine and neuter and each includes a corporation, partnership or other
legal entity when the context so requires. The singular number includes the plural and
vice versa, whenever the context so requires.
T.Recording.The parties hereto agree that upon notice to the other and at its own cost and
expense, a party may record this Agreement in the Office of Register of Deeds for
Orange County.
U.Compliance with Laws.To the extent applicable, each party hereto agrees to comply
with all laws, ordinances and regulations affecting the Property from and after the date
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hereof. Without limiting the generality of the foregoing, HABITATshall 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.
V.Publicity; Signage.HABITATagrees to provide suchpublicity 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.
W.Counterparts.This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute on and the
same instrument.
X.No Third Party Rights.The parties hereto covenant and agree that nothing contained in
this Agreement or any act by the Countyor HABITATshall 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,HABITATor any of their respective officers, agents or employees by
any third party.
Y.Performance of Government Functions.Notwithstanding anything in this Agreement
which may be to the contrary, nothing contained in this Agreement shall in any way stop,
limit or impair the County from exercising or performing any regulatory, policing or
governmental powers or functions with respect to the Property including, without
limitation, inspection of the Property in the performance of such functions.
Z.Duration ofAgreement. This Agreement shall be effective on the date of execution and
shall remain in effect during the period of affordability required by the Act under 24 CFR
Part 92.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have set their hands
and seals on the day and year first above written.
[SIGNATURES ON FOLLOWING PAGE]
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HABITAT FOR HUMANITY OF ORANGE
COUNTY, NC, INC.
_________________________________
Jennifer Player,Associate Executive Director
ORANGE COUNTY, NORTH CAROLINA
________________________________
Bonnie Hammersley, County Manager
This document has been pre-audited in accordance with the N.C. Local Government and Fiscal
Control Act.
Gary Donaldson, Finance Director
___________________________
Approved as to form and legality
____________________________
Anne Marie Tosco, Staff Attorney
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EXHIBIT A
SCOPE OF SERVICES
HOME funds will be used for second mortgage funding foreleven(11) newly constructed homes
within Orange County in the Fairview Community and Tinnin Woods subdivision in Hillsborough
using FY 2017-18funds. All homes will be sold to qualified first-time homebuyers earning
between 30% and 65% of the AMIduring the initial eligibility period.
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Exhibit B
PROPOSED BUDGET
Proposed Uses of Funds
Down Payment Assistance
2017-18(11second mortgages)$211,830
Total Uses of Funds$211,830
Sources of Funds
Orange County HOME funds$211,830
Total Sources of Funds$211,830
Habitatmay not request disbursement of funds under this Agreement until the funds are needed
for payment of eligible costs. The amount of each request must be limited to eligible costs as
determined by the County’s Housing and Community Development Department (“HCD").
Funds may be shifted between line items of the Project without prior approval of the County only
to the extent of “Minor Adjustments,”defined as actions which do not result in a change in the
Project and so long as such Minor Adjustments do not exceed ten percent (10%) of the line item
total from which the funds are being removed or to which the funds are being added, there is no
increase to the Total Renovation Cost specified in the above budget, and there are only minor
changes to the Plans and Specifications.
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Exhibit C
Prepared by and return to: Anne Marie Tosco, Orange County Attorney’s Office:
P.O. Box 8181; Hillsborough, NC 27278
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS (Declaration), dated
________________, by Habitat for Humanity of Orange County, NC, Inc. for itself and its
successors 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 $211,830in FY 2017-
18 HOME funds to provide funding for second mortgage funding for eleven(11) newly constructed
homes located in Orange County in the Fairview Community in Hillsborough and Tinnin Woods
subdivision in Efland which are hereinafter designated collectively as “the Property” or “the
Properties”; and
WHEREAS, Orange County is the lead entity of the Orange HOME Consortium, so
designated in an agreement dated July 1, 2011, and as such is the lead entity in a representative
capacity for all members of the Orange HOME Consortium for the purposes of carrying out the
HOME Program in accordance with the Title II of the Cranston-Gonzalez National Affordable
Housing Act (Pub. L. 101-625), (42 U.S.C. 3535(d.) et.seq.) (hereinafter referred to as the "Act"),
and as further defined in the Federal Program Requirements provided by the U.S. Department of
Housing and Urban Development; and
WHEREAS, Habitat is constructing the housing units on the Properties for first-time
homebuyers earning between 30% and 65% of HUD area median income described in Habitat’s
FY 2017-18 Application for Funding, Orange County HOME Program dated, January 31, 2017
which is hereby incorporated into this Agreement as if written herein, and hereafter referred to as
“The Project.” A copy of the 2017-18 HOME Program Applications are on file in the office of
the Orange County Housing and Community Development Department; and
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WHEREAS, Habitat intends to assisteleven(11) first-time homebuyers, who earn
between 30% and 65% of HUD area median income, to purchase the newly constructed housing
units at the Properties; and
WHEREAS,a first-time homebuyer for the purposes of this program is defined as any
low income household that has not owned a home within the past three(3) years including
households living in manufactured housing not permanently affixed to a foundation, or owner-
occupants of homes not feasible for rehabilitation and has lived or worked in Orange County for
at least one year prior to the home purchase;
WHEREAS,notwithstanding any provision of this Agreement, the County and Habitat
hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or
site approval, andthat such commitment of funds or approval may occur only upon satisfactory
completion of an environmental review and receipt by Orange County of a Release of Funds
from the U.S. Department of Housing and Urban Development under 24 CFR Part §58 if
applicable. The parties further agree that the provision of such funds to the project is
conditioned on Orange County’s determination to proceed with, modify, or cancel the project
based on the results of a subsequent environmental review.
WHEREAS, Orange County requires and Owner agrees to the requirement, as a
condition precedent to the awarding of Orange County HOME Investment Partnership Program
funds, that Owner execute, deliver and record this Declaration in the Office of the Register 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 of the
Orange County HOME Investment Partnership Program.
NOW, THEREFORE,in considerationof the promises and covenants hereinafter set
forth and of other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Owner intends, declares, and covenants that the regulatory and restrictive
covenants set forth herein governing the use, occupancy, and transfer of the Property shall be and
are covenants pertaining to the Property and running with the land for the term stated herein and
are binding upon all subsequent owners of the Property and for such term, except as specifically
provided herein, and are not merely personal covenants of Owner.
SECTION 1 REPRESENTATIONS, COVENANTS AND WARRANTIES OF OWNER
Owner hereby represents, covenants and warrants as follows:
A.It is contemplated that the Property and the Project willbe used, during the ninety-nine
(99) years after Project Completion (defined as the last of the following events: the
Property is acquired, rehabilitated, if necessary, and the last of the nine dwelling units is
occupied by a low-income family), for owner-occupied housing to families earning up to
65% of HUD area median income. In the event Owner sells, transfers or exchanges the
Property or any portion of the Property, the following shall pertain:
1.Subject to the requirements of the DEVELOPMENT AGREEMENT(AttachmentB
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hereto), the HOME Investment Partnership Program and this Declaration, Owner may
sell, transfer, or exchange the Property to a non-profit fund, foundation, or
corporation of like purpose which is organized and operated exclusively for charitable
and educational purposes and which has established its tax exempt status under
Section 501 (c)(3) of the Internal Revenue Code, or to Orange County; provided,
however, Owner shall obtain the written agreement, in form satisfactory to Orange
County, ofany buyer or successor or other person acquiring the Property or any
interest therein, that such acquisition is subject to the requirements of this Declaration
and to the requirements of the DEVELOPMENT AGREEMENT and the HOME
INVESTEMENT PARTNERSHIP PROGRAM. 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 and the
HOME INVESTMENT PARTNERSHIP PROGRAM.
2.Any assignment, sale, transfer, conveyance or other disposition of the Property or any
part of the Property other than as described in subparagraph 1 above, whether
voluntary or involuntary or by operation of law shall be subject to the provisions of
SECTION 4 of this Declaration.
B.Owner will, at the time of execution, delivery and recording of this Declaration, have good
and marketable title to the Property, free and clear of any lien or encumbrance (except
encumbrances created pursuant to this Declaration or other permitted encumbrances).
C.Owner warrants that it has not and will not execute any other declaration with provisions
contradictory to, or in opposition to, the provisions hereof, andthat in any event, the
requirements of this Declaration are paramount and controlling as to the rights and
obligations herein set forth and supersede an y other requirements in conflict herewith.
SECTION 2TERM 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) yearsafter Project Completion, unless Orange
HOME Investment Partnership Program 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 3RECORDING 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
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Project during the term of this Declaration, that this Declaration and the covenants and
restrictions set forth in this Declaration regulating and restricting theuse, occupancy and
transfer of the Property (1) shall be and are covenants running with the land,
encumbering the Property for the term of this declaration, binding upon Owner's
successors in title and all subsequent Owners of the Property; (2) are not merely personal
covenants of Owner; and (3) shall bind Owner (and the benefits shall inure to Orange
County and any past, present or prospective owner of the Property) and its respective
successors and assigns during the term of this Declaration. Owner hereby agrees that any
and all requirements or privileges of estate are intended to be satisfied, or in the alternate,
that an equitable servitude has been created to insure that these restrictions run with the
Property. For the term of this Declaration, each and every contract, deed or other
instrument hereafter executed conveying the Property or portion thereof shall expressly
provide that such conveyance is subject to this Declaration, provided, however, the
covenants contained herein shall survive and be effective regardless of whether such
contracts, deed, or other instrument hereafter executed conveying the Property or portion
thereof provides that such conveyance is subject to this Declaration. It is further the
responsibility of Owner to rerecord the Declaration of Restrictive Covenants periodically
and no less often than one day less than every 30 years from the date hereof for the
purpose of renewing the rights of first refusal in the Property or portion 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 § 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
that the ninety-nine (99) year duration of this Declaration of Restrictive Covenants be
accomplished and that any future owner of the Property, Habitat, and Orange County will
do what is necessary to ensure that the same is not extinguished by N.C. Gen. Stat. § 41-
29or 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, Habitat and Orange County agree to do what each must do to
accomplish the ninety-nine (99) year duration of this Declaration of Restrictive
Covenants.
SECTION 4ENFORCEMENT OF AFFORDABLE HOUSING REQUIREMENTS
A.Rights of Refusal
1.Grant and Effect.Orange County is granted a right of first refusal to purchase the
Property as described in this Section. Any assignment, sale, transfer, conveyance, or
other disposition of the Property or an y 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 to any entity other than an
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agency with similar interest in affordable housing serving families with incomes not
exceeding 80% of the area median household income by family size, as determined
by the U.S. Department of Housing and Urban Development at the time of the
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 (“Notice”).” This Notice 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 thereofwithin 90 days of the receipt of the “Notice
of Intent to Sell.”
3.Sales After Failure to Exercise Rights of Refusal.If Orange County does not
advise Owner in a timely fashion of its intent to purchase the Property, then owner
shall be free to transfer the property in accordance with the provisions in this Section.
4.Assignability.Orange County may assign its right of first refusal without Owner’s
consent.
B.Resale Provisions
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.However, if the property is sold during the term of affordability, the Right of First
Refusal provisionof the New and Existing First-Time Homebuyer Program portion of
the County’s Long-Term Housing Affordability Policy must be followed and the Net
Sales Proceeds (sales price less: (1) selling cost, (2) the unpaid principal amount of
the original first mortgage and (3) the unpaid principal amount of the initial County
contribution and any other initial government contribution secured by a deferred
payment promissory note and deed of trust) or “equity” will be divided 50/50
between the Seller of the Property and the County.
3.In the event that Net Sales Proceeds are insufficient to repay the HOME Funds,
including principal plus interest, the amount to be recaptured shall be any funds
remaining after payment of all senior non-HOME debt and closing costs. In no event
shall the borrower be required to use funds other than net proceeds to repay the
HOME Funds.
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4.The recapture provisions shall remain in effect for the full affordability period –99
years.
C.Owner covenants that it will not knowingly take or permit anyaction that would result in
a violation of the affordability requirements of Orange County or of the HOME
Investment Partnership Program. Orange County, together with Owner, may execute and
record any amendment or modification of this Declaration and suchamendment or
modification shall be binding on third parties granted rights under this Declaration.
D.Owner acknowledges that the primary purpose for requiring compliance by Owner with
restrictions provided in this Declaration is to assure compliance with the affordability
requirements of Orange County and the HOME Investment Partnership Program, AND BY
REASON THEREOF, OWNER IN CONSIDERATION FOR RECEIVING HOME
INVESTMENT PARTNERSHIP PROGRAM FUNDS FOR THE PROPERTY HEREBY
AGREES AND CONSENTS THAT ORANGE COUNTYSHALL 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 JURISDICTION, WITH VENUE IN ORANGE
COUNTY. Owner hereby further specifically acknowledges that the beneficiaries of Owner's
obligations hereunder cannot be adequately compensated by monetary damages in the event
of any default hereunder.
E.This Declaration may be enforced by Orange County or its designee in the event Owner fails
to satisfy any of the requirements of this Declaration by proceedings at law or in equity
against any person or persons violating or attempting to violate any covenant. If legal costs
are incurred by Orange County, such legal costs, including attorney fees and court costs
(including costs of appeal), are the responsibility of, and may be recovered from the Owner.
SECTION 6MISCELLANEOUS
A.Severability.The invalidity of any clause, part, or provisionof 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 anofficer 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:
i.To the County:Orange County
c/o Housing and Community Development
Department
P.O. Box 8181
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Hillsborough, NC 27278
ATTN: Director
ii.To Habitat: Habitat for Humanity of Orange County, NC, Inc.
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 first above written.
Habitat for Humanity of Orange County, NC,
Inc.
_________________________________
__________________,______________
(Print Name)(Title)
ATTEST:____________________________
___________________, Secretary
NORTH CAROLINA
ORANGE COUNTY
I, _________________________, Notary Public in and for the above named County and
State, do hereby certify that on this day personally appeared before me _____________ with
whom I am personally acquainted, who, being by me duly sworn, says that he is Secretary and
that _____________ is _______________of Habitat for Humanity of Orange County, NC, Inc.,
a North Carolina corporation, and that by authority duly given and as the act of the corporation,
the foregoing instrument was signed in its name by its President and attested to by its Secretary.
Witness my hand and notarial seal, this the _________day of _______________20__.
_________________________________
Notary Public
My commission expires: ___________________
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AttachmentA
Legal Description
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6
AttachmentB
Development Agreement
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EXHIBIT D
______________________________________________________________________________
Prepared By and after recording return to: Anne Marie Tosco, Orange County Attorney’s
Office, P.O. Box 8181, Hillsborough, NC 27278
NORTH CAROLINA
ORANGE COUNTY
DEED OF TRUST AND SECURITY AGREEMENT
THIS DEED OF TRUST, AND SECURITY AGREEMENT ("Deed of Trust") is made
as of this ____ day of ___________, 20____ by and among ________________ whose address
is _______________________________________________ (Borrower"), John L. Roberts
whose address is P.O. Box 8181, Hillsborough 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 ________________(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 Habitat For Humanity Of Orange County, NC, Incand
Lender dated __________________.
X Declarations of Restrictive Covenants between Habitat For Humanity Of Orange County,
NC, Incand Lender dated ________________.
X Promissory Note from Borrower to the Lender dated the same date as this Deed of Trust
and Security Document.
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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 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 Attachment"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
allencumbrances, except as described onAttachment "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, curtesyor 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
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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
to Lender 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 thescope 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
further agreement of the insurer waiving all rights of setoff, counterclaim or deductions against
the Borrower.
In the event of loss, Borrower shall give immediatenotice 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 Trust or
to the repair or restoration of the Premises.
If the insurance proceeds are applied to the debt, it may be applied upon the portionlast
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
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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
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 principaladvances secured by this
Deed of Trust (even though when added to other advances the sum thereof may exceed the face
amount of the Note), shall bear interest from the time advanced, paid or expended at the rate 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 ondemand 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.Attorney'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), then 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 enforced 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
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Lender to make partial release or releases of security hereunder (whether or not such releases are
required by agreement among the parties) agreeable to Trustee 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
validityof 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 otherparty, 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 obtaining 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 asecurity 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 or 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);
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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
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
f.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.Inspection.To assure and protect its rights under this Deed of Trust, Lender shall
have the fight to access and inspection of the Premisesat 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 Trust, 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.
a.Borrower warrants that, (i) to the best of Borrower's knowledge, the Premises and the
land described in AttachmentA attached hereto (the "Land") are free of Hazardous
Materials, (ii) neither Borrower, nor to the best of Borrower'sknowledge, 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,
DocuSign Envelope ID: 12C19140-2C02-498E-AD84-772B4830D31B
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
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 part y 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
Trust 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 Trust:
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(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
Environmental Laws.
(ii)"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous Materials Transportation Act, 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 § 45-45.1 of the NorthCatalina 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 ______________ (____ ) 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]
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IN WITNESS WHEREOF, Borrower has caused this instrument to be duly signed,
sealed and delivered the day and year first above written.
BORROWER
______________________________
COUNTY OF ___________________
STATE OF NORTH CAROLINA
I, ____________________________, a Notary Public, do hereby certify that
_______________________________, personally appeared before me this day and
acknowledged the due execution of this Deed of Trust.
WITNESS my hand and official stamp or seal, this ____day of __________________,
________.
My Commission expires: ___________________________________________________
Notary Public
(Seal/Stamp)
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AttachmentA
Property Description
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AttachmentB
Permitted Encumbrances:
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EXHIBIT E
PROMISSORY NOTE
DEFERRED PAYMENT LOAN
Date: _________
Amount: __________ ($______)
1.Loan. This Note evidences a loan made by Lender to Borrower under a
Development Agreement between Habitat For Humanity Of Orange County, NC, Inc.and
Orange County, North Carolina,pursuant to the Orange County HOME Investment Partnership
Program and the Orange County Long-Term Housing Affordability Policy. The loan is secured
by a Deed of Trust, (the "Deed of Trust") dated the same date as this Note, and which is a lien on
the property described in the Deed of Trust (the "Property"). The Trustee is John Roberts. All
terms of the Deed of Trust are incorporated in this Note by reference, and any default under the
Deed of Trust is a default under this Note.
2.Borrower's Promise to Pay. In return for a loan received (the “Loan"),
______________("Borrower")promises to pay_____________DOLLARS and ________
CENTS (U.S. $_________) or so 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.InterestRate. Interest shall accrue on the unpaid principal balance at a rate of
zero 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"):
a.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 a lien 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.
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5.Assumptions. The Note may be assumed only on the prior written approval of the
Lender. Al1 terms 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 and Community Development, Post Office Box 8181, Hillsborough, NC 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
full amount of any installment within 15 daysafter 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, Lender, 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, Lender 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,
Lender may employ an attorney to enforce Lender's rights and remedies,
Borrower agrees to pay Lender 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
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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 thisNote. 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 Noteor 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):
XDevelopment Agreements between Habitat For Humanity Of Orange County, NC, Inc.
and Lender dated _______________.
XDeclarations of Restrictive Covenants between Habitat For Humanity Of Orange County,
NC, Inc., and Lender dated ________________.
XDeed of Trust from Borrower 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 duly signed,
sealed and delivered the day and year first above written.
BORROWER
______________________________
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COUNTY OF ___________________
STATE OF NORTH CAROLINA
I, ____________________________, a Notary Public, do hereby certify that
_______________________________, personally appeared before me this day and
acknowledged the due execution of this Promissory Note.
WITNESS my hand and official stamp or seal, this ____day of __________________,
________.
My Commission expires: ___________________________________________________
Notary Public
(Seal/Stamp)
DocuSign Envelope ID: 12C19140-2C02-498E-AD84-772B4830D31B