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Home My WebLink About2024-219-E-Housing Dept-EmPOWERment-Acquisition of 104 Grant St.DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 Revised 06/21 ORANGE COUNTY—DEPARTMENT USE ONLY ______________________________________________________________________________ Party/Vendor Name: EmPOWERment. Inc. Party/Vendor Contact Person: Delores Bailey Contact Phone: (919) 967-8779 Party/Vendor Address: 109 N Graham St. Suite 200 City Chapel Hill State: NC Zip: 27516 Department: Housing Amount: $105,000 Purpose: Acquisition of 104 Grant St. Budget Code(s): 24 61370035 850000 10056 Vendor # 700658 (N/A if new vendor) Vendor is a BOCC consultant? Yes No Contract Type: (Check one) New Renewal Amendment Effective Date 4/12/2024 Approved by Board Yes No Agenda Date: --- For Section XIV. c. contracts only, Approved by Board in Current FY Budget Yes No 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: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 4/12/2024 4/15/2024 4/15/2024 4/16/2024 Prepared by and after recording return to: Morgan Pierce, Orange County Attorney’s Office, P.O. Box 8181, Hillsborough, NC 27278 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (“Declaration”), dated ________, 2024, by EmPOWERment, Inc. for itself and its successors and assigns (“Owner” or “EmPOWERment”), is given as a condition precedent to the award of Orange County funds. RECITALS: WHEREAS, the Orange County HOME Consortium has designated up to One Hundred and Five Thousand Dollars ($105,000) in FY 2023-24 County funds to assist in the acquisition of affordable rental units; and WHEREAS, the Owner intends to acquire property, affordable rental units located at 104 Grant Street, Chapel Hill, North Carolina (hereinafter referred to as “the Project” or the “Project dwelling units”), as rental housing for low-income families earning between 30% - 60% of the Area Median Income. The Project dwelling units are located on the property more particularly described in Exhibit A attached hereto and made a part of this Agreement (hereinafter referred to as “the Property”). WHEREAS, Orange County requires and Owner agrees to the requirement, as a condition precedent to the awarding of Orange County 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 Investment Partnership Program and the County’s Long-Term Affordability Policy. 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 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 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 Properties and the Project will be used throughout the ninety- nine (99) years after Project Completion (defined as the Property acquired, rehabilitated (if necessary) and leased by a low-income household(s) earning between 30% - 60% of HUD area median income). B. In the event Owner sells, transfers, or exchanges the Property or any portion of the Properties, the following shall pertain: C. In the event Owner sells, transfers, or exchanges the Property or any portion of the Property, the following shall pertain: 1. During the Affordability Period and subject to the requirements of the DEVELOPMENT AGREEMENT between Owner and County dated _________, which is hereby incorporated by reference and made a part of this Declaration, and the HOME Investment Partnership Program and this Declaration, Owner may sell, transfer, or exchange the Property to a qualified low-income buyer; provided, however, Owner shall obtain the written agreement, in form satisfactory to Orange County, of any buyer or successor or other person acquiring the Property or any interest therein, that such acquisition is subject to the requirements of this Declaration and to the requirements of the DEVELOPMENT AGREEMENT. Owner agrees that County may void any sale, transfer, or exchange of the Property or any portion of this Property if the buyer or successor or other person fails to assume in writing the requirements of this Declaration and the requirements of the DEVELOPMENT AGREEMENT. A copy of the DEVELOPMENT AGREEMENT is on file with the Office of the Clerk to the Orange County Board of County Commissioners. Upon expiration of the Affordability Period and prior to expiration of the ninety-nine (99) years from Project Completion, Owner may sell, transfer, or exchange the Property to a Qualified Buyer as defined in the County’s Long-Term Affordability Policy or to a non-profit fund, foundation, or corporation of like purpose which is organized and operated exclusively for charitable and educational purposes and which has established its tax exempt status under Section 501 (c)(3) of the Internal Revenue Code, or to Orange County; provided, however, Owner shall obtain the written agreement, in form satisfactory to Orange County, of any buyer or successor or other person acquiring the Property or any interest therein, that such acquisition is subject to the requirements of this Declaration and to the requirements of the County’s Long-Term Affordability Policy. 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 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 3 or involuntary or by operation of law shall be subject to the provisions of SECTION 4 of this Declaration. D. Owner will, at the time of execution, delivery and recording of this Declaration, have good and marketable title to the Properties, free and clear of any lien or encumbrance (except encumbrances created pursuant to this Declaration or other permitted encumbrances). E. 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 County Long-Term Affordability Policy 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 Properties (1) shall be and are covenants running with the land, encumbering the Properties for the term of this declaration, binding upon Owner's successors in title and all subsequent Owners of the Properties; (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 Properties) 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 Properties. For the term of this Declaration, each and every contract, deed or other instrument hereafter executed conveying the Properties 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 Properties 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 Properties or portion thereof including any leasehold interest in the DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 Properties 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 Properties to register, with the Register of Deeds of Orange County, a notice of preservation of the Restrictive Covenants on the Properties 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 Properties, 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 Properties 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 REQUIREMENT A. The following provisions apply throughout the duration of the Affordability Period, and continue to apply upon expiration of the Affordability Period and prior to expiration of ninety (99) years from the date of Project Completion: 1. Rights of Refusal a. 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. b. Right of First Refusal. If Owner contemplates a Transfer to any entity 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, which 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, then the 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 thereof within 90 days of the receipt of the “Notice of Intent to Sell.” 1. 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 DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 shall be free to transfer the property in accordance with the provisions in this Section. 2. Assignability. Orange County may assign its right of first refusal without Owner’s consent. 2. Resale and Recapture Provisions a. If the Owner no longer uses the Property as affordable rental property or is unable to continue ownership, then Owner 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. Subsequent resales are allowable to households earning up to 115% of the area median income. b. However, if the property is sold during the term of affordability, the Right of First Refusal provision of 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. c. In the event that Net Sales Proceeds are insufficient to repay the County Funds, including principal plus interest, the amount to be recaptured shall be any funds remaining after payment of all senior non-County debt and closing costs. In no event shall the borrower be required to use funds other than net proceeds to repay the County Funds. d. The recapture provisions shall remain in effect following the expiration of the Affordability period until the expiration of the full affordability period – 99 years. B. Owner covenants that it will not knowingly take or permit any action that would result in a violation of the affordability requirements of Orange County. Orange County, together with Owner, may execute and record any amendment or modification of this Declaration and such amendment or modification shall be binding on third parties granted rights under this Declaration. C. 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 ORANGE COUNTY FUNDS, HEREBY AGREES AND CONSENTS THAT ORANGE COUNTY SHALL BE ENTITLED, FOR ANY BREACH OF THE PROVISIONS HEREIN, AND IN ADDITION TO ALL OTHER DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 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. D. 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 5 MISCELLANEOUS A. Severability. The invalidity of any clause, part, or provision of this Declaration shall not affect the validity of the remaining portions thereof. B. Notices. Any Notice shall be in writing and shall be given by depositing the same in the United States mail, post-paid and registered or certified, and addressed to the party to be notified, with return-receipt requested, or by delivering the same in person to an officer or principal of such party. Notice deposited in the mail in the manner hereinabove described shall be effective upon mailing. For purposes of Notice, the addresses of the parties shall, unless changed as hereinafter provided, be as follows: i. To the County: Orange County c/o Housing and Community Development Department P.O. Box 8181 Hillsborough, NC 27278 ATTN: Director ii. To EmPOWERment: EmPOWERment, Inc. 109 N. Graham Street 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. DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 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. EmPOWERment Inc. _________________________________ _________________________, Chair, Board of Directors 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 who, being by me duly sworn, says that _____________ is Chair of the Board of Directors of EmPOWERment , Inc., 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 Chair of Board of Directors. Witness my hand and notarial seal, this the _________day of _______________20__. _________________________________ _______________________, Notary Public My commission expires: ___________________ DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392 EXHIBIT A Property Description DocuSign Envelope ID: 8C0299D2-0578-4D1C-BF2F-2064EE2D4392