Loading...
HomeMy WebLinkAbout2021-290-Housing-Inter-church Council Housing Corporation NORTH CAROLINA AFFORDABLE HOUSING BOND DEVELOPMENT AGREEMENT ORANGE COUNTY This is an AGREEMENT between Orange County, a general local governmental unit of the State of North Carolina, (hereinafter referred to as the “County”) and Inter-church Council Housing Corporation, a North Carolina Non-Profit Corporation (hereinafter referred to as “Owner” or “InChuCo”). The effective date of this Agreement is May 27, 2021 WITNESSETH WHEREAS, the County, in the implementation of the 2016 Orange County Affordable Housing Bond program, solicited applications for $2.5 Million of Affordable Housing Bond Funds from interested eligible organizations; and WHEREAS, InChuCo submitted an application for funding to make critical repairs to eight (8) elevated stairwell landings between the upper levels of the four (4) residential buildings at Chase Park Apartments in Chapel Hill, as described in its application submitted for Orange County Affordable Housing Bond Program funds, dated July 31, 2020, which application is incorporated by reference into this Agreement and is on file in the office of the Orange County Department of Housing and Community Development; and WHEREAS, the Orange County Board of Commissioners on November 5, 2020 approved the award to InChuCo of One Hundred Sixty-Five Thousand Eight Hundred and Forty Dollars ($165,840.00) in FY 16 Affordable Housing Bond Program funding (hereinafter, “Project funds”) to support repair of the stairwells at Chase Park Apartments; and WHEREAS, InChuCo intends to use the Project funds to assist with demolition and infrastructure and site improvement costs, specifically the removal of eight (8) existing elevated metal-and-concrete stairwell landings and the fabrication and installation of new ones, at Chase Park Apartments (hereinafter, “the Project”), InChuCo’s affordable housing development in Chapel Hill with forty (40) affordable rental units leased to households earning not more than sixty percent (60%) of the HUD area median income (hereinafter, the “Project dwelling units”). The Project is located on property more particularly described in Exhibit A, Legal Description (hereinafter, the “Property”), attached hereto and made a part of this Agreement. All Exhibits attached to this Agreement are hereby made a part of this Agreement and are incorporated into this Agreement, as it now reads or as it may be modified by the parties; and WHEREAS, notwithstanding any provision of this Agreement, the County and InChuCo hereby 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 applicable environmental review. The parties further agree that the provision of such funds to the project is conditioned on the County’s determination to proceed with, modify, or cancel the project based on the results of a subsequent environmental review. DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E 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 BOND FUNDS A. InChuCo shall perform the projects or tasks related to its allocation of Affordable Housing Bond funds as provided in Exhibit B, Scope of Services, and within the proposed budget outlined in Exhibit C. B. InChuCo may not request disbursement of Project 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 County staff. C. Said Project funds shall be disbursed by the County to InChuCo for performance of the services described in Exhibit B by check made payable to InChuCo. D. Bond funds will be a fixed subsidy provided in the form of a grant. II. AMOUNT OF BOND FUNDS/LOAN TERMS A. The County shall make available to Owner up to One Hundred Sixty-Five Thousand Eight Hundred and Forty Dollars ($165,840.00) pursuant to this Agreement. B. Said funds to be disbursed by the County to InChuCo for the performance of the services described in Exhibit B. III. LIEN POSITION N/A IV. TIMELINESS Owner shall complete the Project within twelve (12) months from the date of this Agreement. However, in the event of any alterations or addition or circumstances beyond the control of the Owner, which in the opinion of the Director of the County’s Department of Housing and Community Development Department will require additional time for completion of the Project, then in that case, the time of completion shall be extended by the County Manager in writing for a period of time not to exceed six (6) months. Any further extension will require the approval of the Orange County Board of County Commissioners. V. DURATION OF THE AGREEMENT This Agreement will remain in effect for the Period of Affordability as provided in Section VI, Affordability Requirements, the term of which is ninety-nine (99) years from proper recording DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E of the Orange County Declaration of Restrictive Covenants in the Orange County Registry. VI. AFFORDABILITY REQUIREMENTS A. Owner agrees to lease the Project dwelling units located at Chase Park Apartments to households whose income does not exceed 60% of the HUD area median income by family size, throughout the 99 year Period of Affordability. The Area Median Income by family size is determined by the U.S. Department of Housing and Urban Development and amended from time to time. Residential leases shall not exceed one year in term. B. Each of the Project dwelling units must remain affordable during the “Period of Affordability”, which is ninety-nine (99) years. Owner retains full responsibility for compliance with the affordability requirements for the Project dwelling units, unless affordability restrictions are terminated due to the sale of the Property to a non-qualified buyer, in which event the Resale Provisions of this Agreement pertain. Owner shall assure compliance with affordability of each of the Project dwelling units by having recorded a "Declaration of Restrictive Covenants," the form of which is attached hereto as Exhibit C (hereinafter, “the Declaration”) on the Property. This Declaration shall constitute and remain a first lien on the Property during the Period of Affordability. The Period of Affordability starts from the date of recording of the Declaration and continues for a period of ninety-nine years thereafter. The Declaration shall constitute and remain a lien on the Property during the Period of Affordability. C. Owner agrees to the affordability requirements as provided herein and the Resale Provisions provided below and in Exhibit D, Declaration of Restrictive Covenants, Section 4B. D. 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 Declarations of Restrictive Covenants 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 of this Agreement that the 99-year duration of this Declaration of Restrictive Covenants be accomplished and that any future owner of the Property, Owner, and Orange County will do what is necessary to ensure 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. Owner and the County agree to do what each must do to accomplish the 99-year duration of the Declarations of Restrictive Covenants. DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E E. Resale Provisions Owner shall assure compliance with affordability of each of the Project dwelling units through the Declaration of Restrictive Covenants. The Declaration of Restrictive Covenants shall include at least the following elements in its resale provisions: a. If Owner no longer uses the Property as rental property or is unable to continue ownership, then the Owner must sell, transfer, or otherwise dispose of its interest in the Property only to an agency with similar interest in affordable housing and serve families with incomes not exceeding 60% of the HUD area median household income by family size at the time of the transfer. The non-profit fund, foundation, or corporation of like purposes must have established its tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. b. However, if the Property is sold, transferred, or otherwise disposed of other than to an agency with similar interest in affordable housing during the period of affordability, the Right of First Refusal provision in 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 by the seller of the Property and the County. c. The resale provision shall remain in effect for the full affordability period – 99 years. d. Any proceeds from the recapture of funds under this provision will be used to facilitate the acquisition, construction, and rehabilitation of housing for the purposes of promoting affordable housing. VII. OWNER PERFORMANCE UNDER THIS AGREEMENT A. Owner agrees to lease the Project dwelling units to households whose income does not exceed 60% of the HUD area median income by family size, as determined by the U.S. Department of Housing and Urban Development and amended from time to time, with priority given to homeless and/or disable households. Monthly rents must not exceed the HUD Published Fair Market Rents in effect at the time of occupancy. Residential leases shall not exceed one year in term. B. Owner shall use the Project funds to demolish and remove eight (8) existing elevated metal- and-concrete stairwell landings and fabricate and install of new stairwell landings at Chase Park Apartments. Notwithstanding any other provision of this Agreement, in the event DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E Owner is unable to complete its obligations within the time or by the extensions approved by the County under the terms of this Agreement, Owner may be required to repay the full amount of the Project funds. C. All construction and repair work must be completed in accordance with applicable building and zoning regulations and ordinances and N.C. Housing Finance Agency Energy Standards. D. Owner is responsible for verifying the income of prospective tenants and maintaining eligibility data. Owner shall maintain tenant files as part of its Books and Records as required and for the period of time required in Section VIII. C.3 of this Agreement. Owner must furnish the County with an annual report of the Project dwelling units by July 31 of each year thereafter certifying that all tenants earn no more than 60% of the HUD area median income by family size. E. Each Project dwelling unit must have a value that does not exceed 100% of its appraised value. An independent, qualified appraiser must conduct the appraisal. F. Owner must submit an annual rental operations budget to the County each year at least sixty days prior to the July 1 beginning date for the fiscal year G. Owner agrees and authorizes the County to conduct on-site reviews, examine client and contractor records, client applications and to conduct any other procedures or practices to assure compliance with these provisions. H. Owner agrees to not violate any State or Federal laws, rules or regulations regarding a direct or indirect illegal interest on the part of any employee or elected official of the Owner in the Project or payments made pursuant to this Agreement. I. Owner shall adopt any applicable audit requirements of the Office of Management and Budget (hereinafter "OMB") Circular A-110, "Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Nonprofit Organizations," and Circular A-122, "Cost Principles for Nonprofit Organizations," and OMB Circular A-133, "Audits of Institutions of Higher Education and Other Non-Profit Institutions." Owner shall submit to the County copy of said audit report. Owner shall permit the authorized representatives of the County, HUD and the Comptroller General of the United States to inspect and audit all data and reports of the Owner relating to its performance under the Agreement. J. County shall provide, upon request, copies of all laws, regulations and orders cited in this Agreement. K. Owner certifies by executing this Agreement that Owner has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.58. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147- DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E 86.81. By executing this Agreement Provider affirms Provider is and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. L. Owner hereby assures and certifies that it will comply with the regulations, policies, guidelines and requirements with respect to the acceptance and use of BOND funds in accordance with the policies of the County. Also, Owner certifies with respect to the Project that the Project will be conducted and administered in compliance with: 1. Title VIII of the Civil Rights Act of 1968 (Pub. L. 90-208, 42 U.S.C. Sec 2000d at seq.), as amended; and that the Owner will administer all programs and activities related to housing and community development in a manner to affirmatively further fair housing; 2. Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended, and implementing regulations when published in effect; 3. The Age Discrimination Act of 1975 (Pub. L. 94135), as amended, and implementing regulations when published for effect; 4. The Fair Housing Act (42 U.S.C. 3601-20); 5. Lead Based Requirements at 24 CFR Part 35 VIII. ADMINISTRATION AND REPORTING REQUIREMENTS A. Owner shall submit to the County a quarterly Progress Report no later than the fifth day of the months of January, April; July; October until the activity has been reported completed. B. After completion, Owner is responsible for verifying the income of prospective tenants and maintaining eligibility data. Owner shall maintain tenant files as part of its Books and Records as required and for the period of time required in Section VIII. C.3 of this Agreement. Owner must furnish the County with an annual report of the Project dwelling units by July 31 of each year thereafter certifying that all tenants earn no more than 60% of the HUD area median income by family size. C. Miscellaneous Provisions 1. Termination of Agreement. The full benefit of the Project will be realized only after the completion of the affordability periods for all Project dwelling units. It is the County's intention that the full public benefit of the Project shall be completed under the auspices of the Owner for the assisted units as follows: a) In the event that the Owner is unable to proceed with any aspect of the Project in a timely manner, and County and the Owner determine that reasonable extension(s) for completion will not remedy the situation, then the Owner will retain DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E responsibility for requirements for any dwelling units assisted and County will make no further payments to the Owner. b) In the event that the Owner, prior to the contract completion date, is unable to continue to function due to, but, not limited to, dissolution or insolvency of the organization, its filing a petition for bankruptcy or similar proceedings, or is adjudged bankrupt or fails to comply or perform with provisions of this agreement, then the Owner shall, upon the County’s request, convey to the County the Property assisted with Project funds. Conveyance shall be at the sole discretion of County and on a Project dwelling unit by Project dwelling unit basis as set forth below: i. Conveyance shall occur within thirty (30) days of County and the Owner's agreement of the Owner’s inability to continue as a viable organization. ii. Owner shall convey the Property to the County by general warranty deed, free and clear of all liens and encumbrances of record except those which create a beneficial interest in County (Declaration of Restrictive Covenants). 2. Default, Remedies. This Agreement may be terminated by a non-defaulting party upon an event of default hereunder, after written notice thereof and thirty (30) days grace period in which the defaulting party may act to cure. As used herein, the term "an event of default" shall mean and refer to a failure or act of omission by either party with respect to any undertaking, obligation, covenant or condition as set forth in this Agreement. With respect to any event of default, the non-defaulting party may exercise any right available to it at law or in equity with respect to such default. 3. Books and Records. The Owner shall maintain records of its loan requirements under this contract for a period of not less than the completion of the affordability periods for all Project dwelling units. a. The Owner shall ensure the County access to records and financial statements, as necessary, to provide effective monitoring and evaluation of project performance. Additionally, the Owner shall submit a copy of its annual audit to the County. b. Upon reasonable advance notice, County or its authorized representatives may from time to time inspect, audit, and make copies of any of Owner records that relate to this contract. If any audit by County discloses that payments to Owner were in excess of the amount to which Owner was entitled under this contract, Owner shall promptly pay to County the amount of such excess. If the excess is greater than 1% of the contract amount, Owner shall also reimburse County its reasonable costs incurred in performing the audit. c. Owner shall maintain files of all tenants, regardless of length of occupancy, residing in assisted units. Documentation shall verify eligibility for federal assisted housing at the point of initial tenancy and every subsequent year thereafter for the Period of Affordability. Information maintained shall include: tenant income level; name of DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E family members; ethnic data; family type – e.g. female head of household; disability status; and monthly rent. d. Owner shall maintain records verifying the affordability of the dwelling units. 4. Notices. Any Notice shall be in writing and shall be given by depositing the same in the United States mail, post-paid and registered or certified, and addressed to the party to be notified, with return-receipt requested, or by delivering the same in person to an officer or principal of such party. Notice deposited in the mail in the manner here in above described shall be effective upon mailing. For purposes of Notice, the addresses of the parties shall, unless changed as hereinafter provided, be as follows: a. To the County: Orange County c/o Housing, Human Rights and Community Development Department P.O. Box 8181 Hillsborough, NC 27278 ATTN: Director b. To the Owner: Inter-church Council Housing Corporation P.O. Box 3692 Chapel Hill, NC 27515 ATTN: Executive Director Either the County or the Owner may change the person or address to which any future Notice shall be given as herein provided. 5. No Assignment. No transfer or assignment of the interest of the Owner in this Agreement shall occur without the prior written consent of the County; neither may the Owner assign this Agreement without the prior written consent of County. 6. Conflict of Interest. The Owner shall be aware of and observe the requirements of the Orange County Affordable Housing Bond Program which provides that no member of the Orange County Board of Commissioners shall be admitted to any share or part of this Agreement or to any benefit to arise from the same. The Owner shall also be aware of and observe the requirements which states that no member, officer, or employee of Orange County or its designees or agents, no member of the governing body of the locality who exercised any functions or responsibilities with respect to the program during his/her tenure or for one year thereafter, shall have any private interest, direct or indirect, in this contract or any subcontract, or the proceeds thereof, for work to be performed in connection with the program assisted under the agreement. DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E 7. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 8. Indemnification. To the extent legally possible, the Owner shall indemnify and hold County, its officers, agents, and employees, harmless from and against any and all claims, actions, liabilities, costs, including attorney fees and other costs of defense, arising out of or in any way related to any act or failure to act by the Owner, its employees, agents, officers, and contractors in connection with this contract. In the event any such action or claim is brought against County, the Owner shall, upon County's tender, defend the same at the Owner’s sole cost and expense, promptly satisfy any judgment adverse to County or to County and the Owner jointly, and reimburse County for any loss, cost, damage, or expense, including attorney fees suffered or incurred by County. 9. Subcontracting. The Owner shall not subcontract work under this Agreement, in whole or in part, without the County's prior written approval. The Owner shall require any approved subcontractor to agree, as to the portion subcontracted, to comply with all applicable federal, state, and local laws, rules, ordinances, and regulations at all times and in the performance of the work and to comply with all applicable obligations of the Owner specified in this contract. Notwithstanding County's approval of a subcontractor, the Owner shall remain obligated for full performance of this contract and County shall incur no obligation to any subcontractor the Owner shall indemnify, defend, and hold County harmless from all claims of its contractors. 10. No Joint Venture or Agency. The County and the Owner each agree and acknowledge that nothing contained herein or otherwise, including, without limitation, any act of the County or the Owner under this Agreement, shall be deemed or construed to create any relationship of joint venture, partnership or agency between the parties. 11. Effect of Waiver or Forbearance. No failure by the County to insist upon the strict performance of any term or condition of this Agreement, or to exercise any right or remedy upon the breach by the Owner of any of its obligations, agreements, or covenants hereunder, shall be a waiver of such affected term or condition or of such breach; nor shall any forbearance by the County to seek a remedy for any breach by the Owner be a waiver by the County of its rights and remedies with respect to that or any other breach. 12. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of North Carolina. Any litigation arising out of this Agreement shall be brought in courts sitting in North Carolina, with venue in Orange County. 13. Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E unenforceable by the fact that for any reason any other provision may be invalid or unenforceable in whole or in part. If any provision of this Agreement or the application thereof to any person or circumstances shall, to any extent, be or become invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. The County and The Owner agree to substitute for such provision of this Agreement or the application thereof determined to be invalid or unenforceable, such other provision as most closely approximates, in a lawful manner, such invalid, illegal or unenforceable provision. If the County and the Owner cannot agree, they shall apply to a court of competent jurisdiction to substitute such provision as the court deems reasonable and judicially valid, legal and enforceable. Such provision determined by the court shall automatically be deemed part of this Agreement ab initio. 14. Equal Opportunity. The Owner shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, political affiliation or belief, age, handicap, or familial status in the implementation of the Project. 15. Headings. Headings are for convenience only and shall not be used to interpret or construe the provisions of this Agreement. 16. Gender; Singular and Plural. As used herein, the neuter gender includes the feminine and masculine. The masculine includes the feminine and neuter, and the feminine includes the masculine and neuter and each includes a corporation, partnership or other legal entity when the context so requires. The singular number includes the plural and vice versa, whenever the context so requires. 17. Recording. The parties hereto agree that upon notice to the other and at its own cost and expense, a party may record this Agreement in the Office of Register of Deeds for Orange County. 18. Compliance with Laws. To the extent applicable, each party hereto agrees to comply with all laws, ordinances and regulations affecting the Property from and after the date hereof. Without limiting the generality of the foregoing, the Owner shall comply with all federal, state and local laws, regulations and ordinances applicable to the expenditure of funds provided by the County, to purchase and develop the Property. 19. Publicity; Signage. The Owner agrees to provide such publicity with respect to the County's participation in the development of the Property as the County shall reasonably require. Any signage at the Property shall acknowledge the County's role and contribution. DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E 20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 21. No Third Party Rights. The parties hereto covenant and agree that nothing contained in this Agreement or any act by the County or the Owner shall be deemed or construed by the parties or any third party to create any relationship of third party beneficiary, including third party principal or agent, or to create any right, claim or cause of action against the County, the Owner or any of their respective officers, agents or employees by any third party. 22. Performance of Government Functions. Notwithstanding anything in this Agreement which may be to the contrary, nothing contained in this Agreement shall 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. 23. Duration of Agreement. This Agreement shall be effective on the date of execution and shall remain in effect during the period of affordability required by the recorded Declaration of Restrictive Covenants. [SIGNATURE PAGE TO FOLLOW] DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E 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. INTER-CHURCH COUNCIL HOUSING CORPORATION, By: _________________________________ George Lensing, President ORANGE COUNTY, NORTH CAROLINA By: ___________________________________ Bonnie Hammersley, County Manager This document has been preaudited in accordance with the N.C. Local Government and Fiscal Control Act. ____________________________ Gary Donaldson, Finance Director Approved as to form and legality ____________________________ Anne Marie Tosco, Staff Attorney DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E EXHIBIT A Legal Description PIN No.: 9788016994 DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E EXHIBIT B Scope of Services Services to be provided are in accordance with Inter-church Council Housing Corporation’s Orange County Affordable Housing Bond Program 2020 Funding Application and attachments. Funds will be used to assist with demolition, infrastructure and site improvement costs, specifically the removal of eight (8) existing elevated metal-and-concrete stairwell landings and the fabrication and installation of new ones, at Chase Park Apartments, InChuCo’s affordable housing development in Chapel Hill with forty (40) affordable rental units leased to households earning not more than sixty percent (60%) of the HUD area median income. All improvements and/or construction will be completed in compliance with applicable state and local building codes, regulations, and ordinances. DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E Exhibit C PROJECT BUDGET Proposed Uses of Funds Demolition, infrastructure and site improvement $165,840.00 Total Uses of Funds $165,840.00 Sources of Funds Orange County FY 16 Affordable Housing Bond Funds $ 165,840.00 Total Sources of Funds $ 165,840.00 InChuCo may not request disbursement of funds under this Agreement until the funds are needed for payment of eligible costs. The amount of each request must be limited to eligible costs as determined by the County’s Housing and Community Development Department (“HCD"). Funds may be shifted between line items of the Project without prior approval of the County only to the extent of “Minor Adjustments,” defined as actions which do not result in a change in the Project and so long as such Minor Adjustments do not exceed ten percent (10%) of the line item total from which the funds are being removed or to which the funds are being added, there is no increase to the Total Renovation Cost specified in the above budget, and there are only minor changes to the Plans and Specifications. DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E EXHIBIT D Prepared by and return to: Orange County Attorney’s Office P.O. Box 8181; Hillsborough, NC 27278 PIN No.: 9788-01-6994 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (“Declaration”), dated ________________, by Inter-church Council Housing Corporation, a North Carolina Non Profit Corporation, for itself and its successors and assigns (“Owner” or “InChuCo”), is given as a condition precedent to the award of funds. RECITALS: WHEREAS, the County, in the implementation of the 2016 Orange County Affordable Housing Bond program, solicited applications for $2.5 Million of Affordable Housing Bond Funds from interested eligible organizations; and WHEREAS, InChuCo submitted an application for funding to make critical repairs to eight (8) elevated stairwell landings between the upper levels of the four (4) residential buildings at Chase Park Apartments in Chapel Hill, as described in its application submitted for Orange County Affordable Housing Bond Program funds, dated July 31, 2020, which application is incorporated by reference into this Agreement and is on file in the office of the Orange County Department of Housing and Community Development; and WHEREAS, the Orange County Board of Commissioners on November 5, 2020 approved the award to InChuCo of One Hundred Sixty-Five Thousand Eight Hundred and Forty Dollars ($165,840.00) in FY 16 Affordable Housing Bond Program funding (hereinafter, “Project funds”) to support repair of the stairwells at Chase Park Apartments; and WHEREAS, InChuCo intends to use the Project funds to assist with demolition and infrastructure and site improvement costs, specifically the removal of eight (8) existing elevated metal-and-concrete stairwell landings and the fabrication and installation of new ones, at Chase Park Apartments (hereinafter, “the Project”), InChuCo’s affordable housing development in Chapel Hill with forty (40) affordable rental units leased to households earning not more than DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E sixty percent (60%) of the HUD area median income (hereinafter, the “Project dwelling units”). The Project is located on property more particularly described in Exhibit A, Legal Description (hereinafter, the “Property”), attached hereto and made a part of this Agreement. All Exhibits attached to this Agreement are hereby made a part of this Agreement and are incorporated into this Agreement, as it now reads or as it may be modified by the parties; and WHEREAS, notwithstanding any provision of this Agreement, the County and InChuCo hereby 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 applicable environmental review. The parties further agree that the provision of such funds to the project is conditioned on the County’s determination to proceed with, modify, or cancel the project based on the results of a subsequent environmental review; and WHEREAS, InChuCo, as a condition precedent of the awarding of funds, shall 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 and agreeing to the terms of the Affordable Housing Bond Development Agreement dated May 27, 2021 which is incorporated by reference herein, between the County and InChuCo. A copy of the Affordable Housing Bond Development Agreement (hereinafter, “DEVELOPMENT AGREEMENT”) is on file with the Office of the Clerk to the Orange County Board of County Commissioners. NOW, THEREFORE, in consideration of the promises and covenants hereinafter set forth and of other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Owner intends, declares, and covenants that the regulatory and restrictive covenants set forth herein governing the use, occupancy, and transfer of the Property shall be and are covenants pertaining to the Property and running with the land for the term stated herein and are binding upon all subsequent owners of the Property and for such term, except as specifically provided herein, and are not merely personal covenants of Owner. SECTION 1 REPRESENTATIONS, COVENANTS AND WARRANTIES OF OWNER Owner hereby represents, covenants and warrants as follows: A. It is contemplated that the Property and the Project will be used, during the ninety-nine (99) years after Project Completion (defined as the completion of the Project described in the DEVELOPMENT AGREEMENT). B. 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, Owner may sell, transfer, or exchange the Property to a non-profit fund, foundation, or corporation of like purpose which is organized and operated exclusively for charitable and educational purposes and which has established its tax exempt status under Section 501 (c)(3) of the Internal Revenue Code, or to Orange County; provided, however, Owner shall obtain the written agreement, in form satisfactory to Orange County, of any buyer or DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E successor or other person acquiring the Property or any interest therein, that such acquisition is subject to the requirements of this Declaration and to the requirements of the DEVELOPMENT AGREEMENT. Owner agrees that Orange 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 DEVELOPMENT AGREEMENT. 2. Any assignment, sale, transfer, conveyance or other disposition of the Property or any part of the Property other than as described in subparagraph 1 above, whether voluntary or involuntary or by operation of law shall be subject to the provisions of SECTION 4 of this Declaration. C. Owner will, at the time of execution, delivery and recording of this Declaration, have good and marketable title to the Property, free and clear of any lien or encumbrance (except encumbrances created pursuant to this Declaration or other permitted encumbrances). D. Owner warrants that it has not and will not execute any other declaration with provisions contradictory to, or in opposition to, the provisions hereof, and that in any event, the requirements of this Declaration are paramount and controlling as to the rights and obligations herein set forth and supersede any other requirements in conflict herewith. SECTION 2 TERM OF DECLARATION This Declaration and the Terms of Affordability, specified herein, apply to the Property immediately upon recordation and Owner shall comply with all restrictive covenants herein. This declaration shall terminate ninety-nine (99) years after Project Completion, unless Orange Long Term Housing Affordability Policy affordability restrictions are terminated due to the sale of the Property to a non-qualified buyer as provided herein and Orange County agrees to the termination of the Declaration. SECTION 3 RECORDING AND FILING; COVENANTS TO RUN WITH THE LAND A. Upon execution of this Declaration by Owner, Owner shall cause this declaration and all amendments hereto to be recorded and filed in the Office of the Register of Deeds of Orange County. B. Owner intends, declares and covenants, on behalf of itself and all future Owners of the Project during the term of this Declaration, that this Declaration and the covenants and restrictions set forth in this Declaration regulating and restricting the use, occupancy and transfer of the Property (1) shall be and are covenants running with the land, encumbering the Property for the term of this declaration, binding upon Owner's successors in title and all subsequent Owners of the Property; (2) are not merely personal covenants of Owner; and (3) shall bind Owner (and the benefits shall inure to Orange County and any past, present or prospective owner of the Property) and its respective successors and assigns during the term of this Declaration. Owner hereby agrees that any and all requirements or DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E 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, Owner, and Orange County will do what is necessary to ensure that the same is not extinguished by N.C. Gen. Stat. § 41-29 or any comparable law purporting to extinguish, by the passage of time, preemptive rights in the Property and by the Real Property Marketable Title Act or any comparable law purporting to extinguish, by the passage of time, non-possessory interests in real property. Any future owner, Owner and Orange County agree to do what each must do to accomplish the ninety-nine (99) year duration of this Declaration of Restrictive Covenants. SECTION 4 ENFORCEMENT 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 any part thereof whether voluntarily or involuntarily or by operation of law (“Transfer”) shall not be effective unless and until the below- described procedure is followed. 2. Right of First Refusal. If Owner contemplates a Transfer during the term of this Declaration to other than an agency with similar interest in affordable housing serving families with incomes not exceeding 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.” This Notice of Intent to Sell shall be accompanied by a copy of a completed, fully executed bona fide offer to DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E purchase the Property on the then current North Carolina Bar Association “Offer to Purchase and Contract” form. If Orange County elects to exercise its said right of refusal, it shall notify the Owner of its election to purchase within 30 days of its receipt of the Notice and shall purchase the Property or portion thereof within 90 days of the receipt of the “Notice of Intent to Sell.” The right of first refusal granted to the County pursuant to this Section 4 shall be in force commencing immediately. 3. Sales After Failure to Exercise Rights of Refusal. If Orange County does not advise the Owner in a timely fashion of its intent to purchase the Property, then the Owner shall be free to transfer the property in accordance with this Section of the Declaration. 4. Assignability. Orange County may assign its right of first refusal without Owner’s consent. B. Resale Provisions 1. If the Owner no longer uses the Property as affordable rental housing, then Owner must sell, transfer, or otherwise dispose of its interest in the Property only to an agency with similar interest in affordable housing and to serve families with 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. 2. However, if the property is not sold, transferred, or otherwise disposed of to an agency with similar interest in affordable housing during the term of affordability, the net sales proceeds (sales price less: (1) selling cost, and (2) the unpaid principal amount of the initial Orange County contribution and any other initial government contribution secured by a deferred payment promissory note and deed of trust) or “equity” will be divided 50/50 by the seller of the Property and Orange County. If the initial County contribution does not have to be repaid because the sale occurs more than forty years after the County contribution is made, then the seller of the Property and the County will divide the entire equity realized from the sale. 3. In the event that Net Sales Proceeds are insufficient to repay the County Bond Funds, including principal plus interest, the amount to be recaptured shall be any funds remaining after payment of all liens senior to the County’s lien and closing costs. In no event shall the borrower be required to use funds other than net proceeds to repay the Bond Funds. 4. The resale provisions shall remain in effect for the full affordability period – 99 years. C. Owner covenants that it will not knowingly take or permit any action that would result in a violation of the Orange County Long Term Affordability Policy requirements. Orange DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E County, together with Owner, may execute and record any amendment or modification of this Declaration and such amendment or modification shall be binding on third parties granted rights under this Declaration. D. Owner acknowledges that the primary purpose for requiring compliance by Owner with restrictions provided in this Declaration is to assure compliance with the affordability requirements of Orange County, AND BY REASON THEREOF, OWNER IN CONSIDERATION FOR RECEIVING AFFORDABLE HOUSING BOND PROGRAM FUNDS FOR THE PROPERTY HEREBY AGREES AND CONSENTS THAT ORANGE COUNTY SHALL BE ENTITLED, FOR ANY BREACH OF THE PROVISIONS HEREIN, AND IN ADDITION TO ALL OTHER REMEDIES PROVIDED BY LAW OR IN EQUITY, TO ENFORCE BY SPECIFIC PERFORMANCE OWNER’S OBLIGATIONS UNDER THIS DECLARATION IN A STATE COURT OF COMPETENT JURISDICTION, WITH VENUE IN ORANGE COUNTY. Owner hereby further specifically acknowledges that the beneficiaries of Owner's obligations hereunder cannot be adequately compensated by monetary damages in the event of any default hereunder. E. This Declaration may be enforced by Orange County or its designee in the event Owner fails to satisfy any of the requirements of this Declaration by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant. If legal costs are incurred by Orange County, such legal costs, including attorney fees and court costs (including costs of appeal), are the responsibility of, and may be recovered from the Owner. SECTION 6 MISCELLANEOUS A. Severability. The invalidity of any clause, part, or provision of this Declaration shall not affect the validity of the remaining portions thereof. B. Notices. Any Notice shall be in writing and shall be given by depositing the same in the United States mail, post-paid and registered or certified, and addressed to the party to be notified, with return-receipt requested, or by delivering the same in person to an officer or principal of such party. Notice deposited in the mail in the manner hereinabove described shall be effective upon mailing. For purposes of Notice, the addresses of the parties shall, unless changed as hereinafter provided, be as follows: i. To the County: Orange County c/o Housing and Community Development Department P.O. Box 8181 Hillsborough, NC 27278 ATTN: Director c. ii. To Owner: Inter-church Council Housing Corporation DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E P.O. Box 3692 Chapel Hill, NC 27515 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. INTER-CHURCH COUNCIL HOUSING CORPORATION By: _________________________________ _________________________, Title 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 Title of Inter-Church Council Housing Corporation, a North Carolina Non Profit Corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its Title. Witness my hand and notarial seal, this the _________day of _______________20__. _________________________________ _______________________, Notary Public My commission expires: ___________________ DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E EXHIBIT A Legal Description PIN No.: 9788016994 DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 5/18/2021 Scott Insurance -Greensboro 400 Bellemeade Street Suite 201 Greensboro NC 27401 Taylor Housel 336-291-0386 James River Insurance Company Ltd 12203 SALESEN-01 James River Insurance Company (A-)12203ResidentialPropertiesManagement,Inc Inter Church Council Housing Development Corp dba Elliott Woods Apts and Chase Park Apts 1105 Brookstown Ave. Winston Salem NC 27101 580290477 A X 1,000,000 X 50,000 X 1,000 0 1,000,000 2,000,000 000641376 10/1/2020 10/1/2021 2,000,000 B X 1,000,000 X 000860402 10/1/2020 10/1/2021 1,000,000 Orange County Government PO Box 8181 Hillsborough NC 27278 DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E Revised 07/20 ORANGE COUNTY—DEPARTMENT USE ONLY ______________________________________________________________________________ Party/Vendor Name: Inter-church Council Housing Corporation Party/Vendor Contact Person: George Lensing Contact Phone: (919) 942-2197 Party/Vendor Address: 106 North Elliott Drive City Chapel Hill State: NC Zip: 27516 Department: Housing and Community Development Amount: $165,840 Purpose: Affordable Housing Bond Funds Budget Code(s): 61370035-889117-30003 Vendor # 700014 (N/A if new vendor) Vendor is a BOCC consultant? Yes No Contract Type: (Check one) New Renewal Amendment Effective Date May 27, 2021 Approved by Board Yes No Agenda Date: November 5, 2020 This agreement is approved as to technical form and content and I as Department Director affirmatively state work on this project has not been initiated prior to execution of the agreement: Department Director’s Signature ________________________________________ Date: ________ Agreements for emergency services or repair are not subject to the above affirmation. If services related to this agreement have already begun or been completed please briefly describe the nature of the emergency condition that was addressed: Information Technologies (Applicable only to hardware/software purchases or related services) This agreement has been reviewed and is approved as to information technology content and specifications: Office of the Chief Information Officer___________________________________ Date: ________ Risk Management This agreement is approved for sufficiency of insurance standards, specifications, and requirements: Office of the Risk Management Officer___________________________________ Date: _________ Financial Services This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act: Office of the Chief Financial Officer ____________________________________ Date: _________ Legal Services This agreement is approved as to legal form and sufficiency: Office of the County Attorney __________________________________________Date: ________ Clerk to the Board Received for record retention: All Docusign contracts must be copied to the Clerk upon completion: occlerkdocs@orangecountync.gov The following signature block is for hard copies only and is not required for Docusign contracts: Office of the Clerk to the Board __________________________________________Date:_________ DocuSign Envelope ID: D9F5DB48-6B35-4950-A760-8532DDEBD76E 6/2/2021 6/3/2021 6/4/2021 6/4/2021