HomeMy WebLinkAbout2026-333-E-Housing Dept-Community Home Trust-Capital Investment Plan
NORTH CAROLINA
CAPITAL INVESTMENT PLAN
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 Community Home Trust, a
North Carolina Non-Profit Corporation (hereinafter referred to as “Owner” or “CHT”). The effective
date of this Agreement is July 30th, 2026.
WITNESSETH
WHEREAS, the Town of Chapel Hill (hereinafter referred to as the “Town”), a North Carolina
municipal corporation, owns 2200 Homestead Road in Chapel Hill (hereinafter referred to as
“Homestead Gardens”), a site dedicated by the Town for mixed-income affordable housing; and
WHEREAS, the Homestead Housing Collaborative (hereinafter referred to as the
“Collaborative”), a development team of several different nonprofits assembled to develop Homestead
Gardens into a residential community serving a range of incomes and providing a variety of housing
types for homeownership and rental; and
WHEREAS, Community Home Trust is a member of the Collaborative; and
WHEREAS, CHT will ensure long-term affordability through a ground lease with the Town,
together with recorded restrictive covenants; and
WHEREAS, the Orange County Board of Commissioners on January 16, 2024, in the
implementation of the 2023-24 Capital Investment Plan Affordable Housing Program awarded CHT with
Nine-Hundred Thousand Dollars ($900,000) (hereinafter referred to as “Project Funds”) for the
development of twenty-one (21) townhomes in the Project, earmarked for individuals and families
earning sixty-five percent (65%) to eighty percent (80%) AMI; and
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, the parties acknowledge that CHT has reviewed the Phase I Environmental Site
Assessments referenced in Section 4.2 of the Ground Lease, which is attached as Exhibit D, and the
County’s obligation to release funds under this Agreement is conditioned upon the County’s
determination that these environmental reports are satisfactory.
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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 CAPITAL INVESTMENT PLAN FUNDS/SUBSIDY TYPE
A. CHT shall perform the Project tasks related to its allocation of Capital Investment Plan
Affordable Housing Program funds as provided in Exhibit B, Scope of Services, and within
the proposed budget outlined in Exhibit C, consistent with its authority under the Town’s
ground lease of the Property to CHT, a draft of which is attached as Exhibit D. The final
executed ground lease shall be in form and substantially similar to the draft attached as
Exhibit D. All Exhibits are attached hereto and are hereby made a part of this Agreement,
as it now reads or as it may be modified by the parties
B. CHT 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 CHT for performance of the services
described in Exhibit B by
D. Capital Investment Plan Affordable Housing Program funds will be a fixed subsidy
provided in the form of a grant.
II. AMOUNT OF CAPITAL INVESTMENT PLAN FUND
The County shall make available to CHT up to Nine-Hundred Thousand Dollars ($900,000)
pursuant to this Agreement. Said funds to be disbursed by the County to CHT for the
performance of the services described in Exhibit B.
III. LIEN POSITION
Not applicable. County’s interest is secured through a recorded Declaration of Restrictive
Covenants.
IV. TIMELINESS
CHT shall complete the Project by August 31, 2027. However, in the event of any alterations
or additions or circumstances beyond the control of CHT, which in the opinion of the Director
of the County’s Housing Department will require additional time for completion of the Project,
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.
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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
of the Orange County Declaration of Restrictive Covenants in the Orange County Registry.
The affordability requirements applicable to the Project shall be enforced through the recorded
Declaration of Restrictive Covenants. Notwithstanding the foregoing, termination or
expiration of this Agreement shall not affect the enforceability of the recorded Declaration of
Restrictive Covenants, which shall survive independently of this Agreement.
VI. AFFORDABILITY REQUIREMENTS
A. CHT agrees that upon completion of the development of twenty-one townhomes as part of
Homestead Gardens, each shall be sold to households whose income is between sixty-five
percent (65%) and eighty percent (80%) of the HUD area median income by family size,
throughout the ninety-nine (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.
B. Each unit must remain affordable throughout the Affordability Period. CHT agrees to and
retains full responsibility for compliance with the affordability requirements for the Project
dwelling units. CHT shall ensure compliance with the affordability requirements of the
Project dwelling units by having recorded a Declaration of Restrictive Covenants
(“Declaration”) on the Project dwelling units, the form of which is attached as Exhibit E
and hereby incorporated into this Agreement. This Declaration shall constitute and remain
a covenant running with the land on the Project during the Period of Affordability.
C. It is further the responsibility of CHT to rerecord the Declaration of Restrictive Covenants
periodically and no less often than one day less than every thirty (30) years from the date
hereof for the purpose of renewing and preserving the affordability restrictions and
covenants affecting the Project, or portion thereof, including any leasehold interest relating
to a Project dwelling unit. Orange County retains the right to periodically and every thirty
(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 Project dwelling units 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 ninety-nine
(99)-year duration of this Declaration of Restrictive Covenants be accomplished and that
any future owner(s) of the Project dwelling units, CHT, 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
Project dwelling units 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. CHT and the County agree to do what each must do to accomplish the duration
of the Declarations of Restrictive Covenants.
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VII. OWNER PERFORMANCE UNDER THIS AGREEMENT
1. Owner agrees to develop the Project described in Exhibit A into twenty-one (21)
townhome units for sale to households earning between sixty-five percent (65%) and
eighty percent (80%) 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. Notwithstanding any other provision of this Agreement, in the event Owner is
unable to complete its obligations under this Agreement, Owner may be required to
repay the full amount of Project Funds expended by the County, as determined by the
County in its discretion, pursuant to this Agreement.
2. Owner agrees and authorizes the County to conduct on-site reviews as permitted under
CHT’s ground lease with the Town, Exhibit D, examine client and contractor records,
client applications and to conduct any other procedures or practices to assure
compliance with these provisions.
3. 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.
4. Owner agrees 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, as applicable.
5. Owner shall comply with applicable audit requirements contained in 2 CFR, Subpart F
which requires Owner to have an annual audit conducted within nine (9) months of the
end of their fiscal year, if Owner has an aggregate expenditure of more than $750,000
in federal funds in a fiscal year. Owner shall submit to the County copy of said audit
report. Owner shall permit the authorized representatives of the County, HUD, and any
other entity as required by applicable law to inspect and audit all data and reports of
Owner relating to its performance under the Agreement. Any deficiencies noted in audit
reports must be fully cleared by Owner within thirty (30) days after receipt of same.
6. If Owner is not required to perform an audit per the 2 CFR, Subpart F requirements, it
must have and maintain adequate internal financial/cash management principles and
reporting policies.
7. County shall provide, upon request, copies of all laws, regulations and orders cited in
this Agreement.
8. By executing this Agreement, Owner certifies that it 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. Owner further affirms that it and any
subcontractors are and shall remain in compliance with Article 2 of Chapter 64 of the
North Carolina General Statutes.
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9. Owner and County shall at all times observe and comply with all applicable Federal,
State, and local laws, ordinances, codes, and regulations. Owner hereby assures and
certifies that it will comply with the regulations, policies, guidelines and requirements
with respect to the acceptance and use of Project 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 VI of the Civil Rights Act of 1964 (Pub. L. 88-352, 42 U.S.C. Sec 2000d et
seq.) and implementing regulations issued at 24 C.F.R Part I;
2. Title VIII of the Civil Rights Act of 1968 (Pub. L. 90-284, 42 U.S.C. Sec 2000d et
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;
3. Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended, and
implementing regulations when published in effect;
4. The Age Discrimination Act of 1975 (Pub. L. 94135), as amended;
5. The Fair Housing Act (42 U.S.C. 3601-20);
6. Title II of the American Disabilities Act;
7. Executive Order 11246-Equal Opportunity, as amended by Executive Orders 11375
and 12086, and implementing regulations issued at 41 C.F.R Chapter 60.
VIII. ADMINISTRATION AND REPORTING REQUIREMENTS
Owner shall submit to the County a quarterly Progress Report no later than the fifth day of
the months of January, April, July, and October until the activity has been reported
completed.
IX. PUBLIC FACILITIES
The Project will be served by existing and expanded public facilities infrastructure. Orange
Water and Sewer Authority (“OWASA”) will provide water and sewer service. Duke
Energy will provide electrical service to the Project. Solid waste and recycling services
will be provided by the Town of Chapel Hill and Orange County, respectively, in
accordance with approved development plans. Access to the Project will be provided by
Sunflower Lane, a private street connecting to Homestead Road and will be maintained by
the Homestead Gardens Homeowners Association. The Project will be served by Chapel
Hill-Carrboro City Schools.
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X. MISCELLANEOUS PROVISIONS
A. 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 on the
Property. It is the County's intention that the full public benefit of the Project shall be
completed under the auspices of the Owner as follows:
1. In the event that the Owner is unable to proceed with any aspect of the Project in a
timely manner, and County and the Owner determine that reasonable extension(s)
for completion will not remedy the situation, then the Owner will retain
responsibility for requirements for the Project and County will make no further
payments to the Owner.
2. In the event that the Owner, prior to the contract completion date, is unable to
continue to perform under this Agreement 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, the County may, in its sole discretion, terminate this Agreement.
3. Termination of this Agreement shall not affect the enforceability of the recorded
Declaration of Restrictive Covenants.
B. 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. Remedies for breach of the provisions of this Agreement include but are
not limited to repayment of any funds deemed to be expended in an ineligible manner.
Repayment of Capital Investment Plan funds is required if the housing does not meet
the affordability requirements for the Period of Affordability. 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.
C. Books and Records. The Owner shall maintain records of all activities and
expenditures funded under this Agreement for a period of not less than the completion
of the affordability periods for all Project dwelling units.
1. 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.
2. 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 one
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percent (1%) of the contract amount, Owner shall also reimburse County its
reasonable costs incurred in performing the audit.
3. Owner shall maintain files of all homebuyers of assisted units. Documentation shall
verify eligibility for locally assisted housing at the point of initial purchase.
Information maintained shall include: homebuyer income level; name of family
members; ethnic data; family type – e.g. female head of household; disability status;
and mortgage payment(s).
4. Owner shall maintain records verifying the affordability of the Project dwelling
units.
D. 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:
1. To the County: Orange County
c/o Housing Department
P.O. Box 8181
Hillsborough, NC 27278
ATTN: Director
2. To the Owner: Community Home Trust
PO Box 2315
Chapel Hill, NC 27515
ATTN: Kimberly Sanchez
Either the County or the Owner may change the person or address to which any future
Notice shall be given as herein provided.
E. 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
County assign this Agreement without the prior written consent of Owner.
F. 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
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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.
G. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
H. Indemnification. To the extent permitted by law, 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.
I. 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.
J. 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.
K. 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.
L. 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.
M. 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 may be invalid or unenforceable in
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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.
N. 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. The Owner shall include this clause in any approved subcontracts.
O. Headings. Headings are for convenience only and shall not be used to interpret or
construe the provisions of this Agreement.
P. 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.
Q. 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.
R. Compliance with Laws. To the extent applicable, each party hereto agrees to comply
with all laws, ordinances and regulations affecting the Project and 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 develop the Project.
S. Publicity; Signage. The Owner agrees to provide such publicity with respect to the
County's participation in the development of the Project as the County shall reasonably
require. Any signage at the Project shall acknowledge the County's role and
contribution.
T. 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.
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U. 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.
V. 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 Project including,
without limitation, inspection of the Project in the performance of such functions.
W. Entire Agreement and Signatures: The parties have read this Agreement and agree
to be bound by all of its terms and further agree that it constitutes the complete and
exclusive statement of the Agreement between the parties unless and until modified in
writing and signed by the parties. Modifications may be evidenced by telefacsimile
signature. This Agreement together with any amendments or modifications may be
executed electronically. All electronic signatures affixed hereto evidence the consent
of the Parties to utilize electronic signatures and the intent of the parties to comply with
Article 11A and Article 40 of North Carolina General Statute Chapter 66.
[SIGNATURES ON FOLLOWING PAGE]
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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.
COMMUNITY HOME TRUST
By: _________________________________
Kimberly Sanchez, President & CEO
ORANGE COUNTY, NORTH CAROLINA
By: ___________________________________
Travis Myren, 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
____________________________
Margaret McConnell, Staff Attorney
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Exhibit A
Legal Description
BEING ALL OF Lots 7-10 and Lots 15-31 as shown on a plat entitled “Townhouse Subdivision Plat
Homestead Gardens” prepared by Thomas & Hutton, dated February 17, 2026, and recorded in Plat
Book 130, Pages 18-27, Orange County Registry, to which plat reference is hereby made for a more
particular description of the same.
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EXHIBIT B
Scope of Services
Services to be provided are in accordance with CHT Corporation 2023-24 Capital Investment Plan
Funding Application and attachments.
Funds will be used for construction and pre-development expenses of twenty-one (21) townhomes in the
Project, earmarked for individuals and families earning sixty-five percent (65%) to eighty percent (80%)
AMI.
All improvements and/or construction will be completed in compliance with applicable state and local
building codes, regulations, and ordinances.
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Exhibit C
PROJECT BUDGET
Proposed Uses of Funds
Construction and Pre-Development Costs $900,000.00
Total $900,000.00
Sources of Funds
Orange County Capital Investment Plan $ 900,000.00
Total Sources of Funds $ 900,000.00
CHT 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 Department (“OCHD").
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 D
TOCH-CHT DRAFT GROUND LEASE
STATE OF NORTH CAROLINA
COUNTY OF ORANGE GROUND LEASE
THIS GROUND LEASE (this “Ground Lease” or “Lease”) is made and entered into as of
the day of , 2026 (the “Effective Date”), between the TOWN OF
CHAPEL HILL (hereinafter referred to as “Landlord”), and COMMUNITY HOME TRUST, a
North Carolina nonprofit corporation (hereinafter referred to as “Tenant”) (collectively the
“Parties”).
WITNESSETH:
WHEREAS, Landlord is the owner of certain real property containing approximately
14.00 acres located in Orange County, North Carolina, situated at 2200 Homestead Road, Chapel
Hill, North Carolina, as more particularly described on Exhibit A, attached hereto and incorporated
herein (the “Homestead Property”);
WHEREAS, in September 2017, the Town dedicated the Homestead Property for mixed-
income affordable housing, with a focus on providing affordable homes, and requested Town staff
to pursue development of the Homestead Property; and
WHEREAS, a development team referred to as the Homestead Housing Collaborative (the
“Collaborative”) was assembled, and in 2019, the Town accepted a proposal from the
Collaborative and Self-Help Ventures Fund, a North Carolina nonprofit corporation (“SHVF”) to
develop the Homestead Property as a residential community serving a range of incomes and
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providing a variety of housing types for homeownership and rental (the “Purpose”);
WHEREAS, Tenant is one of three (3) Collaborative developers in the Collaborative which
will enter into a Development Contract with the Town for development of affordable housing
on their respective leasehold portions of the Homestead Property, as contemplated in a
Memorandum of Understanding by and among the Town, SHVF and the Collaborative developers
dated February 27, 2020 (the “MOU”), and in the Agreement for 2200 Homestead Road Site
Development between the Town and SHVF dated February 25, 2022 (the “Site Development
Agreement”);
WHEREAS, the Town has determined that it is consistent with the goals and objectives of
the Town in its ongoing commitment for the creation of affordable housing within the corporate
boundaries of Chapel Hill that the Town provide a ground lease to Tenant for the Land (defined
below), consisting of a portion of the Homestead Property;
WHEREAS, in furtherance of the Purpose and these goals and objectives, on June 14, 2023,
the Town adopted a resolution authorizing execution of option to ground lease agreements with
Tenant and the other Collaborative developers, granting Tenant the right to enter into a long-term
land lease of the Land to support the construction, development and operation of the Project and
Tenant and Landlord entered into that Option to Lease Real Estate dated
(the “Option”);
WHEREAS, Tenant has met Landlord’s conditions precedent to entering this Lease as set
forth in part in the Option.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is duly acknowledged, the Parties agree as follows:
I. DEFINITIONS
(1) “Affordability Restrictions” – All twenty-one (21) townhome units in the Project shall be sold
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to and occupied by individuals and families whose income is between 65-115% of the Orange
County, North Carolina area median income (“AMI”), as determined by the U.S. Department
of Housing and Urban Development.
(2) “Improvements” – The Project and any building, parking structure or any other development
located or to be located on the Land.
(3) Intentionally deleted.
(4) “Independent Appraiser” means a firm which is approved by the Investor and is generally
qualified to render opinions as to the fair market value of assets such as those owned by the
Landlord and which satisfies the following criteria:
a. such firm is not a partner, or an affiliate of the Landlord;
b. such firm (or a predecessor in interest to the assets and business of such firm) has
been in business for at least five (5) years, and at least one of the principals of
such firm has been in the active business of appraising substantially similar
assets for at least ten (10) years;
c. such firm has regularly rendered appraisals of substantially similar assets for at
least five (5) years on behalf of a reasonable number of unrelated clients, so as to
demonstrate reasonable market acceptance of the valuation opinions of such
firm;
d. one or more of the principals or appraisers of such firm are members in good
standing of an appropriate professional association or group which establishes
and maintains professional standards for its members; and
e. such firm renders an appraisal to the Landlord only after entering into a contract
that specifies the compensation payable for such appraisal.
(5) “Initial Rent” – The initial rent shall be Ten Dollars ($10.00) per year beginning on the
Effective Date.
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(6) “Land” – The Landlord’s real property underlying the Project, as more particularly described
in Exhibit A attached hereto and incorporated herein.
(7) “Project” – The twenty-one (21) affordable rental units which conform to the Affordability
Restrictions defined in this Article I as well as the Plans and Specifications set out in Article
VI.
(8) “Rent” – The total of all rent due and payable, including Initial Rent and Additional Rent as
defined in Article 11.2.
(9) “Term” – The term of this Lease shall be ninety-nine (99) years beginning on the Effective
Date.
II. DEMISE
2.1 Demise. Landlord, for and in consideration of the rents and covenants herein specified to be
paid and performed by Tenant, hereby leases to Tenant, and Tenant hereby leases from Landlord,
on the terms and conditions and for the purposes herein set forth, the Land, together with all
easements, rights and appurtenances in connection therewith or thereunto belonging to the
Landlord (the “Leasehold” or “Leasehold Estate”), subject to the following:
(a) Covenants, restrictions, easements, agreements, the existing leases, and reservations
of record;
(b) Zoning regulations and other applicable laws;
(c) Existing violations of applicable laws;
(d) Physical condition of the Land; and
(e) Taxes, assessments, and other charges.
2.2 Ownership of Improvements. During the Term, the Improvements shall be the property of
Tenant and Tenant shall be entitled to all proceeds therefrom. In addition, at all times during the
Term, the Tenant alone shall be entitled to all of the tax attributes of ownership of the
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Improvements, including without limitation, the right to claim depreciation or cost recovery
deductions, amortization. At the end of the Term, or upon the earlier termination of this Ground
Lease, the Improvements shall automatically become the property of Landlord along with any
leases in effect.
2.3. Right to Mortgage. Tenant shall have a right to mortgage the Project and the Improvements,
and the Leasehold Estate.
III. TERM
3.1 Term. Unless otherwise terminated or otherwise extended, the term (the “Term”) shall be as set
forth in Article I (9).
IV. CONDITION OF PROPERTY
4.1 Condition of Leasehold Estate. Tenant has inspected and is familiar with the physical
condition of the Land. Tenant acknowledges and agrees that, except as provided in this Ground
Lease, Landlord makes no representation or warranty, express or implied, written or oral, with
respect to the present physical or other condition of the Land, including, but not limited to, any
of the following:
(a) The status of any rights under, and the compliance with, any restrictions imposed
pursuant to any applicable zoning or other law, ordinance or regulation or under any
covenant, condition, restriction, easement, agreement or reservation running with the
Land;
(b) The suitability of the Land for the uses intended by Tenant including, without
limitation, any proposed construction upon the Land; or
(c) The accuracy or adequacy of any information or documentation which has been or
which may be furnished by Landlord to Tenant.
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4.2 Environmental. Tenant has reviewed a Phase I Environmental Site Assessment performed for
the Land dated May 25, 2017, performed by Hart Hickman and a Phase I Environmental Site
Assessment dated June 17, 2024, performed by GeoTechnologies, Inc. (collectively, the
“Report”). Landlord and Tenant agree that the Report establishes a baseline of the current
environmental conditions of the Land so that Tenant cannot be held responsible by Landlord for
conditions that existed at the inception of this Lease. Further, Tenant agrees to conduct any
cleanup or take any other steps necessary to bring the Land into compliance should any regulatory
agencies require such of Landlord or Tenant, provided the conditions requiring such action arose
after the inception of this Lease and were not due to the gross negligence or willful misconduct
of Landlord, and agrees to hold Landlord harmless of such governmental or regulatory obligations
or requirements should they arise, provided the conditions requiring such governmental or
regulatory obligations arose after the inception of this Lease and were not due to the gross
negligence or willful misconduct of Landlord.
V. RENT
5.1 Payment of Rent. Tenant shall pay Rent during the Term of this Ground Lease to Landlord as
follows: Rent shall be payable to “Town of Chapel Hill” and sent to 405 Martin Luther King Jr
Blvd, Chapel Hill, NC 27514. The Initial Rent in the aggregate amount of Nine Hundred Ninety
Dollars ($990.00) for the Term shall be paid in full as of the date hereof.
5.2 Manner of Payment. Rent to be paid to Landlord shall be paid in legal tender, without
counterclaim, set off or deduction of any kind or nature whatsoever (except as otherwise stated in
this Ground Lease) and without notice or demand. For any period of less than a full year for which
Rent is payable, the applicable Rent shall be prorated.
VI. CONSTRUCTION OF THE PROJECT AND IMPROVEMENTS
6.1 Construction of the Project and the Improvements.
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(a) Project and Improvements. As a condition of this Lease, Tenant agrees to construct the
Project and the Improvements related thereto in accordance with the Plans and
Specifications (as hereinafter defined) in subsection (b) below.
(b) Plans and Specifications. Landlord and Tenant acknowledge that Tenant submitted
construction plans, drawings, and related documents (the “Plans and Specifications”) to
Landlord for written approval by the Public Housing and Affordable Housing and
Community Connections Departments and such approval has been received.
6.2 Construction Procedures.
(a) Conditions to Commencement of Construction. Tenant shall satisfy the following
conditions and in no event shall Tenant commence any construction on the Improvements
until the following conditions have been satisfied or waived by Landlord, in addition to
other conditions and requirements imposed by this Ground Lease:
(1) Compliance with Laws. No Improvements, including without limitation,
grading, streets, or landscaping, shall be constructed or maintained upon the Land
unless the same conform to and are consistent with applicable zoning for the Land,
any special use permit or other license, permit, development approval, or
certificate (“Governmental Requirements”) imposed or required by the Town of
Chapel Hill and other applicable governmental authorities (“Governmental
Authorities”) in connection with the Improvements, all other applicable
Governmental Requirements and the Plans and Specifications. Before
commencement of construction or development of the Improvements, Tenant
shall, at Tenant’s sole cost and expense, secure any and all applicable permits,
development approvals, licenses and other approvals which may be required by
any city, county, state or any other Governmental Authority having jurisdiction
over such construction, development or work. Tenant shall provide a copy of such
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permit, development approval, license, or other approval to Landlord prior to
commencing the subject work or activity.
(2) Landlord’s Cooperation. In its capacity as the owner of the Land, Landlord will
assist and cooperate with Tenant in the application process related to reasonable
requests by Tenant for any permit, license, development approval, or other
approval from any Governmental Authority which may be reasonably necessary
for or which will facilitate the development, operation and use of the
Improvements. Landlord agrees to join in granting or dedicating such public or
private utility company easements, parking or access easements, or other
easements as may be reasonably required for the development and operation of the
Project in accordance with this Ground Lease.
(b) Construction Standards. All construction of the Improvements shall be performed
diligently, lien-free, and in accordance with good engineering practices. Tenant shall take
commercially reasonable measures to minimize any damage, disruption or inconvenience
caused by such work and make adequate provision for the safety of all persons affected
thereby. Tenant shall pay (or cause to be paid) all costs and expenses associated with such
work and shall indemnify and hold Landlord harmless from all damages, lawsuits and
claims attributable to the performance of such work, except to the extent such damages,
lawsuits or claims are due to the gross negligence or willful misconduct of Landlord.
VII. USE OF THE LAND
7.1 Permitted Uses. Tenant may only use the Land for the Project and the Improvements related
thereto. Tenant shall provide Landlord such documentation as Landlord may request to confirm
Tenant’s compliance with the Affordability Restrictions.
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7.2. Prohibited Uses. Tenant agrees that it will not: (a) create, cause, maintain or permit any
nuisance in, on or about the Land; (b) commit or suffer to be committed any waste in, on or about
the Land; (c) use or allow the Land to be used for any unlawful purpose, or for any purpose which
violates the terms of any recorded instrument affecting the Land; (d) cause or permit any required
insurance coverage on the Project or the Improvements to become void or voidable or make it
impossible to obtain any required insurance at commercially feasible rates; (e) cause or permit any
structural damage to the Project or the Improvements or to any adjacent public or private property;
or (f) violate or permit a violation of any law, ordinance or regulation applicable to the Project and
the Improvements.
7.3 Compliance with Laws. In the use and occupation of the Land, the construction and operation
of the Project and the Improvements thereon, and the conduct of its business thereon, Tenant, at
its sole cost and expense, shall promptly comply with all requirements of all applicable
Governmental Authorities.
VIII. MAINTENANCE AND REPAIRS
8.1 Maintenance and Repairs. Tenant covenants and agrees, throughout the Term, without cost to
Landlord, to maintain the Land, the Project and the Improvements and to keep the same in good
order and condition, and shall promptly, at Tenant’s own cost and expense, make all necessary
repairs, interior and exterior, structural and nonstructural, ordinary as well as extraordinary,
foreseen as well as unforeseen, to keep the Land, the Project, and all Improvements in safe, clean
and sanitary condition. When used herein, the term “repairs” shall include replacements or
renewals when necessary, and all such repairs made by Tenant shall be at least equal in quality and
class to the original work, except as provided in Article X below. Tenant shall keep and maintain
all portions of the Land in a clean and orderly condition, free of accumulation of rubbish. Tenant
shall be fully responsible for the operation and maintenance of the Project and all of the
Improvements and any landscaping, open space and common areas on the Land, and shall operate
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and maintain, or cause to be operated and maintained, any such improvements, landscaping, open space
and common areas in good order, condition and repair.
IX. INSURANCE AND INDEMNITY
9.1 Casualty and Builder’s Risk Insurance. Tenant, at its sole cost and expense, shall keep the
Project and all Improvements insured during the Term for the mutual benefit of Landlord (who
shall be listed as an additional insured/loss payee) and Tenant, against loss or damage by fire and
lightning and against loss or damage by other risks pursuant to a comprehensive all-risk policy of
insurance, and endorsed for broad form property damage, all in an amount not less than 100% of
the then full replacement cost of the Improvements. If requested by Landlord, Tenant shall also
maintain at its sole cost and expense during the Term, rental value insurance indemnifying the
Landlord for the agreed rental payment amount for a period not less than two years, due to loss
or damage arising from the perils covered in the above insurance. During any period of
construction upon the Land, Tenant shall maintain, or cause others to maintain, builder’s risk
insurance of the type customarily carried in the case of similar construction for one hundred
percent (100%) of the full replacement cost of work in place and materials stored at or upon the
Land.
9.2 Liability and Other Insurance. Tenant, at its sole cost and expense, but for the mutual benefit
of Landlord (who shall be listed as an additional insured/loss payee), and Tenant as named
insureds, shall also maintain commercial general liability insurance on an occurrence basis against
claims for personal injury, including without limitation, bodily injury, death or property damage,
occurring upon, in or about the Land or the Improvements. Such insurance shall be in the
minimum amount of not less than $1,000,000 per occurrence or $2,000,000 in the aggregate with
respect to personal injury or death to any one or more persons or to damage to property or such
larger amounts as Landlord may from time to time reasonably determine.
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Tenant shall provide worker’s compensation insurance to the statutory limit, if any, and employer’s
liability insurance of not less than $1,000,000.00 per occurrence, if applicable. Further, Tenant
shall require that any contractor performing the construction of the Project and the Improvements
to provide worker’s compensation insurance to the statutory limit or to insure that its
subcontractors provide worker’s compensation insurance to the statutory limit. Tenant shall
provide automobile liability insurance of not less than $1,000,000 per occurrence, umbrella/excess
liability insurance of not less than $7,000,000, and environmental/pollution liability insurance of
not less than $1,000,000 per occurrence. Assurance of completed operations coverage (general
liability and umbrella/excess liability) is required to match North Carolina’s statute of repose (six
years).
Tenant shall also maintain such other insurance and in such amounts, as may from time to time be
reasonably required by Landlord in accordance with good business practices or legal requirements
which Landlord is or becomes subject to.
9.3 Forms of Insurance Policies. All policies of insurance provided for shall be effected under
policies in such forms and amounts as may from time to time be issued by insurers approved by
Landlord. All the insurance policies required hereunder shall be issued by an insurance company
or companies authorized to do business in North Carolina and which have policyholder ratings
not lower than “A-” and financial ratings not lower than “VII” in Best’s Insurance Guide (latest
edition in effect as of the Effective Date of this Ground Lease and subsequently in effect as of the
date of renewal of the required policies). Tenant agrees to name Landlord as additional insured
on all policies required hereunder. Upon the execution of this Ground Lease and thereafter not
less than 30 days prior to the expiration date of each policy, the original of each policy, or a copy
thereof certified by an appropriate officer of the insurer as true and complete (or, with the consent
of Landlord, in the case of commercial general liability insurance, a certificate of the insurer
reasonably satisfactory to Landlord) bearing a notation evidencing the payment of the premium,
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or accompanied by other evidence reasonably satisfactory to Landlord of such payment, shall be
delivered by Tenant to Landlord.
9.4 Waiver of Subrogation. Each policy of insurance shall contain, if obtainable, either (i) a
waiver by the insurer of the right of subrogation against Landlord or Tenant for negligence, or (ii)
a statement that the insurance shall not be invalidated should any insured waive in writing its right
of subrogation prior to a loss accruing to the property described in the insurance policy.
9.5 Compliance with Insurer’s Requirements. Tenant shall observe and comply with the
requirements of all policies of public liability, fire and other policies of insurance obtained
pursuant to this Lease. Tenant shall also perform and satisfy the reasonable requirements of
insurance companies writing such policies so that at all times companies of good standing
satisfactory to Landlord shall be willing to write or to continue such insurance.
9.6 Blanket Insurance. Any insurance provided for in this Ground Lease may be effected by a
policy or policies of blanket insurance and may be continued in such form until otherwise required
by Landlord; provided, however, that the amount of the total insurance allocated to the property
shall be such as to furnish in protection the equivalent of separate policies in the amounts herein
required, and provided further that in all other respects, any such policy or policies shall comply
with the other provisions of this Ground Lease.
9.7 Indemnity. Tenant shall indemnify, defend, and hold harmless Landlord and its officers,
agents and employees from all loss, liability, claims or expense (including reasonable attorneys’
fees) proximately caused by the negligence or wrongful conduct of Tenant and Tenant's
employees, agents, invitees, patrons, customers or contractors. The indemnity provisions in this
Section cover personal injury and property damage and shall bind Tenant’s employees, agents,
invitees, lessees, or contractors and Tenant. The indemnity obligations in this Section shall
survive the expiration or earlier termination of this Ground Lease.
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X. DAMAGE, DESTRUCTION AND TAKING
10.1 Damage or Destruction.
(a) Restoration by Tenant.
(i) In case of damage to or destruction of the Project, the Improvements or any
part thereof by fire or other cause (a “Casualty”), Tenant at Tenant’s sole cost and
expense, shall restore the same as nearly as possible to their value, condition and
character immediately prior to the Casualty; provided, however, that Tenant shall
have no obligation to restore the damage or destruction in the event this Lease is
terminated pursuant to Section 10.1(a)(ii). Such restoration shall be commenced
and prosecuted with due diligence.
(ii) This Lease may be terminated by Tenant, with the senior Permitted
Mortgagee’s and Investor’s written consent, if the insurance proceeds made
available to Tenant are insufficient to restore the Improvements to a condition
substantially similar to the conditions existing prior to such Casualty. Such
termination shall be effective as of the date of such substantial casualty, without
liability or further recourse to the parties, provided that each party shall remain
liable for any obligations required to be performed prior to the effective date of
such termination and for any other obligations under this Lease which are
expressly intended to survive termination. In the event Tenant terminates the Lease
pursuant to this provision, to the extent funds are available, Tenant shall, if directed
by Landlord, demolish any remaining Improvements and clear the Land at
Tenant’s expense to Landlord’s satisfaction.
(b) Costs of Restoration.
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(i) Application of Insurance Proceeds to Restoration. All insurance money
paid on account of any Casualty (“Loss Proceeds”) shall be adjusted with the
insurers in accordance with the senior Permitted Mortgagee’s loan documents (the
“Senior Loan Documents”) and shall be applied to restore the Improvements or
applied to redemption of the senior Permitted Mortgagee’s loan, in accordance
with and subject to the provisions of the Senior Loan Documents. Loss Proceeds
permitted to be used for restoration under the Senior Loan Documents shall be
applied to the payment of the cost of restoration, repairs, replacement, rebuilding
or alterations, including the cost of demolition and temporary repairs and for the
protection of property pending the completion of permanent restoration, repairs,
replacements, rebuilding or alterations (all of which temporary repairs, protection
of property and permanent restoration, repairs, replacement, rebuilding or
alterations are hereinafter collectively referred to as the “Restoration”), and shall
be paid out from time to time to Tenant or such other payee, all in accordance with
the Senior Loan Documents, as such Restoration progresses, upon the written
request of Tenant. If the Senior Leasehold Deed of Trust is no longer outstanding
at the time of Casualty, the Loss Proceeds shall be applied to payment of the cost
of Restoration and shall be paid out from time to time to Tenant or in accordance
with its directions as such Restoration progresses. In connection with any request
for a disbursement of Loss Proceeds, Landlord shall have the right to request such
certificates, invoices, and releases necessary to protect Landlord, the Project, and
the other Improvements from any lien, charge or liability (including, without
limitation, mechanics’ liens).
(ii) Tenant to Pay any Deficiency. If the insurance proceeds released for
application to the Restoration shall be insufficient to pay the entire cost of such
Restoration and Tenant does not elect to terminate the Lease pursuant to Section
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10.1(a)(ii), Tenant shall, to Landlord’s satisfaction, either (i) arrange to pay the
deficiency prior to commencement or continuation of construction or (ii) procure
a performance bond and surety bond or other assurances of completion.
(iii) Distribution of Excess Insurance Proceeds. Upon the completion and
payment in full of the Restoration and the expiration of all applicable lien periods,
and so long as there is no default under the terms, conditions, covenants and
agreements of this Ground Lease past any applicable notice and cure period, any
balance of the Loss Proceeds remaining shall be paid (i) first, to the senior
Permitted Mortgagee to the extent required by the Senior Loan Documents, and
(ii) the remaining balance to the Tenant.
(c) No Release of Tenant’s Obligations. Except as provided in Section 10.1(a)(ii), no
Casualty shall permit Tenant to surrender this Ground Lease, or relieve Tenant from its
obligations to pay the full Rent payable under this Ground Lease or from any of its other
obligations under this Ground Lease, or permit Tenant to terminate this Lease, unless each
Permitted Mortgagee has been paid in full or has consented to such surrender, relief or
termination in writing. Notwithstanding the foregoing, if each Permitted Mortgagee has
been paid in full and Tenant has not proposed a plan to rebuild the Project acceptable to
Landlord, in its sole and absolute discretion, then Landlord shall have the option to
terminate this Ground Lease. Upon such termination, Tenant shall surrender the attendant
Loss Proceeds to the Landlord, and each party shall be relieved of its obligations
hereunder, except for those provisions that expressly survive termination.
10.2 Taking.
(a) Notice. Upon receipt by either Landlord or Tenant of any notice of taking, or the
institution of any proceedings for taking the Land, or any portion thereof, the party
receiving such notice shall promptly give notice thereof to the other and any Permitted
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Mortgagee.
(b) Award. Any condemnation award shall be paid to the Landlord, except to the
extent that part of the award is apportioned to the Improvements or to the Leasehold
Estate. Any condemnation award apportioned to the Improvements or the Leasehold
Estate shall be paid to the senior Permitted Mortgagee to be used to restore the
Improvements in accordance with the applicable Senior Loan Documents and any excess
proceeds shall be payable to the Tenant. The Tenant and, to the extent permitted by law,
any Permitted Mortgagee, shall have the right to participate in negotiations of and to
approve any settlement with a condemning authority (which approval shall not be
unreasonably withheld). Notwithstanding any provision of the Lease or by operation of
law that leasehold improvements may be or shall become the property of Landlord at the
termination of the Lease, the loss of the Improvements paid for by Tenant and the loss of
Tenant's Leasehold Estate shall be the basis of Tenant's damages against the condemning
authority if a separate claim therefore is allowable under applicable law, or the basis of
Tenant's damages to a portion of the total award if only one award is made.
(c) Total Taking. In the event of a permanent taking of the entire fee simple interest
of or title to the Land, or control of the entire Leasehold Estate hereunder (a “Total
Taking”), this Lease shall thereupon terminate as of the effective date of such Total
Taking, without liability or further recourse to the parties, provided that each party shall
remain liable for any obligations required to be performed prior to the effective date of
such termination and for any other obligations under this Lease which are expressly
intended to survive termination.
(d) Partial Taking. In the event of a permanent taking of less than all of the Land (a
“Partial Taking”), Tenant may terminate this Lease, with the prior written consent of the
senior Permitted Mortgagee if such partial taking prevents the use and operation of
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Improvements as set forth herein, or if the proceeds (together with other funds) made
available to Tenant are insufficient to restore the Improvements to a condition
substantially similar to the conditions existing prior to such partial taking. Tenant’s
portion of the award as set forth in Section 10.2(b) shall be paid to Tenant, provided that
any and all obligations of Tenant have been fully and completely complied with by Tenant
as of the date of said Partial Taking. If Tenant shall not elect to terminate this Lease, the
Lese shall continue in effect as to the remainder of the Land. Tenant shall be entitled to a
reduction of rent of such amount as shall be just and equitable and Tenant shall repair or
restore the Land or the Improvements as nearly as possible to the condition the Land or
the Improvements were in immediately prior to such Partial Taking. Should the portion of
the condemnation award payable to Tenant be insufficient to accomplish the restoration,
such additional costs shall be paid by Tenant.
XI. LANDLORD’S RIGHT TO PERFORM TENANT’S OBLIGATIONS
11.1 Landlord’s Right to Perform Tenant’s Obligations. If Tenant shall at any time fail to pay for
or maintain any of the insurance policies provided for herein within the time therein permitted, or
to make any other payment or perform any other act on its part to be made or performed under
this Ground Lease, within the time permitted by this Ground Lease, then Landlord, after thirty
(30) days’ written notice to Tenant (or, in case of any emergency, without notice or with such
notice as may be reasonable under the circumstances) and without waiving or releasing Tenant
from any obligation of Tenant hereunder, may, but shall not be required to, pay such charges
payable by Tenant, or make such other payment or perform such other act on Tenant’s part required
by this Ground Lease, and may enter the Project for such purpose and take all such action as may be
necessary therefor.
11.2 Additional Rent. All sums paid by Landlord pursuant to this Article XI and all costs and
expenses incurred by Landlord in connection with the performance of any act authorized by this
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Article XI, together with interest thereon, shall constitute Additional Rent payable by Tenant under
this Ground Lease and shall be paid by Tenant to Landlord on demand.
XII. ASSIGNMENTS, SUBLEASES AND TRANSFERS
12.1 Consent Required.
(a) Assignment of Tenant's Interest(s). Except as expressly provided herein,
Tenant shall not, without Landlord's prior written consent, assign this Lease or any interest
therein, except insofar as permitted by, and subject to the terms and conditions of,
applicable laws and regulations, and this Lease.
(b) Individual Rental Units. Any other provision of this Lease to the contrary
notwithstanding, it is expressly understood and agreed that rental units in the Project may
be leased to qualifying residential tenants without Landlord's consent.
12.2 Subsequent Assignment. In cases where Landlord's consent is required, Landlord's consent
to one assignment will not waive the requirement of its consent to any subsequent assignment.
XIII. LEASEHOLD FINANCING
Section 13.1 Right to Mortgage. Tenant may grant one or more deeds of trust (each a “Leasehold
Deed of Trust”) of its interest in the Lease to , and any
other lender approved by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed (each, together with their successors and/or assigns, a “Permitted
Mortgagee”) and collaterally assign this Lease and all of Tenant's rights hereunder to each such
lender. Landlord agrees to execute any additional documents or further assurances as may be
reasonably requested in connection with each lender’s Leasehold Deed of Trust. Landlord agrees
that any refinance of a Leasehold Deed of Trust held by a Permitted Mortgagee shall not require
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Landlord consent. Landlord also agrees that the holder of any loan refinancing a Leasehold Deed
of Trust is deemed to be a Permitted Mortgagee.
Notwithstanding anything to the contrary contained in this Ground Lease, no consent or
approval of Landlord shall be required for any transfer of the Project or any portion thereof to a
Permitted Mortgagee, its successors or assigns or any designee or nominee thereof pursuant to a
foreclosure under its Leasehold Deed of Trust encumbering the Project, whether by judicial or non-
judicial proceeding or any power of sale contained therein, or any assignment or conveyance in lieu
of foreclosure or further assignment or other sale by a Permitted Mortgagee following any judicial
or non-judicial foreclosure. Any Permitted Mortgagee shall have the unrestricted right to assign,
sell, participate, securitize, and otherwise deal with its interest in the Leasehold Deed of Trust as it
sees fit and without the necessity of obtaining any consent from Landlord. Except as otherwise
provided herein, Tenant shall not have any right, authority or power to bind Landlord, Landlord’s
estate or other assets or any interest of Landlord in the Project, for any claim for labor or material
or for any other charge or expense, lien or security interest incurred in connection with the
development, construction or operation of the Project and Leasehold Estate or any change,
alteration or addition thereto.
Section 13.2 Consent Required for Termination and Amendments. No termination, cancellation,
surrender, modification or amendment of this Lease by agreement between Landlord and Tenant
shall be effective unless consented to in writing by each Permitted Mortgagee, as applicable, which
consent shall not be unreasonably conditioned, delayed, or withheld.
Section 13.3 Notice. When giving notice to the Tenant with respect to any default under the
provisions of this Lease, the Landlord will also send a copy of such notice to each Permitted
Mortgagee, provided that each such Permitted Mortgagee shall have delivered to the Landlord in
writing a notice naming itself as the holder of a Leasehold Deed of Trust and registering the name
and post office address to which all notices and other communications to it may be addressed.
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Section 13.4 Foreclosure. Any Permitted Mortgagee or other acquirer of Tenant’s Leasehold Estate
and interest in this Lease pursuant to foreclosure, an assignment in lieu of foreclosure or other
proceedings, any of which are permitted without the Landlord’s consent, may, upon acquiring the
Tenant’s Leasehold Estate and interest in this Lease, without further consent of the Landlord, sell
and assign the Leasehold Estate and interest in this Lease on such terms and to such persons and
organizations as are acceptable to such Permitted Mortgagee or acquirer and thereafter be relieved
of all obligations under this Lease, provided such assignee has delivered to the Landlord its written
agreement to be bound by all of the provisions of this Lease.
Section 13.5 Permitted Mortgagee Notice. In the event either Landlord or Tenant initiates any
appraisal, arbitration, litigation or other dispute resolution proceeding affecting either the Ground
Lease or Tenant’s Leasehold Estate, Permitted Mortgagee shall have the right to participate in such
proceeding on Tenant’s behalf, or exercise any or all of Tenant’s rights in such proceeding, in each
case (at Permitted Mortgagee’s option) to the exclusion of Tenant. Notice shall be given to
Permitted Mortgagee pursuant to Section 19.5 herein.
Section 13.6 Personal Liability. Any and all personal liability under the Ground Lease will not
extend to any Permitted Mortgagee unless record title to Tenant’s Leasehold Estate is transferred
to Permitted Mortgagee.
13.7 Landlord’s Fee to Remain Subordinated. Landlord agrees not to encumber all or any
portion of its interest in the Leasehold Estate or its fee estate with any mortgage, deed of trust,
deed to secure debt or other instrument in the nature thereof which is not expressly subordinate to
Tenant’s interest and to any Leasehold Deed of Trust, without the prior written consent of Tenant
and each Permitted Mortgagee. Tenant shall not subordinate Tenant’s interest in the Leasehold
Estate or the Project to any lien or encumbrance granted by Landlord. In the event of any
conveyance or encumbrance which is not expressly subordinate to Tenant’s estate under this Lease
and to any Permitted Mortgagee, Landlord agrees to cause any mortgagee, trustee or holder of
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such interest to enter into a non-disturbance agreement (subject to each Permitted Mortgagee’s
prior review and approval) with Tenant.
13.8 Sale of Leasehold Estate. Subject to Article 12 of this Lease, in the event of any sale or
conveyance of the Leasehold Estate by Landlord, any such sale or conveyance of all or any part
of the Leasehold Estate shall be subject to this Lease and all of the provisions hereof, and notice
of such sale shall be provided to the Investor and each Permitted Mortgagee.
XIV. RIGHT OF FIRST REFUSAL
14.1 Right of First Refusal – In the event that Tenant receives a bona fide offer to purchase the
Improvements, which offer Tenant intends to accept, Landlord shall have a right of first refusal to
purchase the Improvements (the “ROFR”). Prior to accepting any such bona fide offer to purchase
the Improvements, Tenant shall notify Landlord and provide Landlord a copy thereof. The
purchase price for the Improvements pursuant to the ROFR shall be equal to the fair market value
of the Improvements, as determined by an appraisal made by an Independent Appraiser, mutually
selected by the parties, who has experience in the geographic area in which the Improvements are
located, but in no event shall such price be less than the amount set forth in the bona fide offer. Any
such appraisal shall take into account any restrictions on record applicable to the Project at that
time. The ROFR shall expire ninety (90) days after notice to Landlord if Landlord does not provide
notice to the Tenant of its intent to exercise its rights hereunder. Notwithstanding the foregoing,
any sale of the Improvements during the Term shall be subject to Landlord’s consent.
Notwithstanding anything to the contrary contained in this Lease, an assignment of this Lease in
accordance with the exercise of the rights under the Tenant POA and the Tenant ROFR shall not
constitute an Event of Default hereunder, so long as Landlord is provided notice of exercise of
such rights.
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XV. DEFAULT AND REMEDIES
15.1 Tenant’s Default. The occurrence of any of the following shall constitute a material default
and breach of this Ground Lease by Tenant (an “Event of Default”):
(a) A failure by Tenant to make any payment required hereunder when due, where such
failure continues for thirty (30) days after notice in writing thereof by Landlord to Tenant.
(b) A failure by Tenant to construct the Improvements in accordance with the Plans and
Specifications, unless otherwise permitted by Landlord and any applicable governmental
authority, and such failure is not cured within thirty (30) days after notice in writing
thereof by Landlord to Tenant.
(c) A failure by Tenant to begin construction on the Improvements within six (6) months
of the date of the Effective Date.
(d) Subject to force majeure, a failure by Tenant to complete construction of the
Improvements within three (3) years of the date of the Effective Date, which date may be
extended in the reasonable discretion of Landlord.
(e) Any lien is filed against the Land and is not released, satisfied or discharged (by
bonding or otherwise) within sixty (60) days.
(f) Intentionally Omitted.
(g) A failure by Tenant to observe and perform any other provision of this Ground Lease
to be observed or performed by Tenant, where such failure continues for thirty (30) days
after written notice thereof by Landlord to Tenant; provided, however, that if the nature
of such default is such that the same cannot reasonably be cured within such 30-day
period, Tenant shall not be deemed to be in default if Tenant shall within such period
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commence such cure and thereafter diligently proceed to complete such cure so long as
the cure is complete within 120 days following the initial written notice of the default.
(h) The making by Tenant of any general assignment for the benefit of creditors; the filing
by or against Tenant of a petition to have Tenant adjudged a bankrupt or of a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in the case of
a petition filed against Tenant, the same is dismissed within ninety (90) days); or the
appointment of a trustee or receiver to take possession the Project, where possession is
not restored to Tenant within ninety (90) days.
(i) Tenant defaults under any Leasehold Deed of Trust beyond any applicable notice and
cure period.
(j) Tenant fails to comply with the Affordability Restrictions at any time during the Term
of this Lease and such failure is not cured.
15.2 Remedies. Upon the occurrence of an Event of Default by Tenant, Landlord shall so notify
Tenant, and any Permitted Mortgagee in writing, each of whom shall have 90 days to cure such
Event of Default (in addition to any applicable cure period given to the Tenant). If it cannot be
reasonably cured within 90 days, then each Permitted Mortgagee shall have such additional time
as it shall reasonably require, so long as either Tenant and/or any Permitted Mortgagee is
proceeding with reasonable diligence to cure such Event of Default. Notwithstanding the preceding
sentence, for any Event of Default that cannot be cured without possession of the Premises or
removal of Tenant’s managing member, Landlord shall allow such additional time as Permitted
Mortgagee shall reasonably require to prosecute and complete a foreclosure. If a Permitted
Mortgagee completes a foreclosure of this Lease or otherwise diligently exercises its rights and
remedies hereunder, then Landlord shall waive any Event of Default which cannot
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reasonably be cured by a Permitted Mortgagee. Landlord agrees to accept any cure by the Investor
and any Permitted Mortgagee as if such cure was tendered by Tenant.
Subject to the notice requirements and cure rights of the Permitted Mortgagees and Tenant herein,
in addition to any other remedies available to Landlord at law or in equity, Landlord shall have the
option to terminate this Ground Lease and all rights of Tenant hereunder by giving written notice
of such intention to terminate, and in such event, Landlord may recover damages from Tenant to
the extent permitted hereunder. Notwithstanding the foregoing, during the term of any Leasehold
Deed of Trust, Landlord shall not terminate this Ground Lease based on (i) personal defaults of
the Tenant, including but not limited to a voluntary bankruptcy filing, or (ii) defaults that the
Permitted Mortgagee cannot reasonably cure provided Tenant assigns Tenant’s Leasehold Interest
to a Permitted Mortgagee prior to the expiration of the Permitted Mortgagees’ cure periods set
forth above. In such event, the Permitted Mortgagee shall thereafter cure any Event of Default that
can be reasonably cured by the Permitted Mortgagee.
XVI. RIGHTS AND OBLIGATIONS UPON TERMINATION
16.1 Surrender of Land and Improvements. Upon the expiration or earlier termination of this
Ground Lease pursuant to the terms hereof, Tenant shall surrender to Landlord the Land, the
Project and all Improvements in good order, condition and repair (except for reasonable wear and
tear, and takings by eminent domain) and free and clear of all liens and encumbrances (other than
those permitted hereby or otherwise created or consented to by Landlord); provided, however, that
Tenant shall have no right to voluntarily surrender the Leasehold Estate (except a surrender upon
the expiration of the Term or upon termination by Landlord pursuant to and subject to the
provisions of this Ground Lease). If requested to do so, Tenant shall also execute, acknowledge
and deliver to Landlord such instruments as may be necessary or desirable to effectuate the
termination of the Ground Lease, the transfer of Tenant’s leasehold interest in the Land to the
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Landlord, or to perfect Landlord’s right, title and interest in and to the Land, the Project and all
Improvements.
XVII. BINDING NATURE
17.1 Run with the Land. The rights and obligations under this Lease shall run with the land and be
binding on Landlord’s successors and assigns. A memorandum of lease in form attached hereto
as Exhibit B shall be executed by the parties hereto and recorded with the Orange County
Register of Deeds.
XVIII. SOURCE OF INCOME DISCRIMINATION
18.1 Source of Income Discrimination. Tenant shall not refuse to lease any residential unit within
the Project to a holder of a voucher or certificate of eligibility under Section 8 of the United
States Housing Act of 1937 because of the status of the prospective tenant as such a holder
nor may Tenant disqualify a prospective tenant from leasing a residential unit within the
Project based on Tenant’s refusal to consider any lawful source of income.
XIX. MISCELLANEOUS
19.1 Non-Discrimination. To the extent permitted by North Carolina law, the parties for
themselves, their agents, officials, directors, officers, members, representatives, employees, and
contractors agree not to discriminate in any manner or in any form based on actual or perceived
age, mental or physical disability, sex, religion, creed, race, color, sexual orientation, gender
identity or expression, familial or marital status, economic status, veteran status or national origin
in connection with this Lease or its performance.
19.2 Iran Divestment Act Certification. Tenant certifies that, as of the date listed below, it is not on
the Final Divestment List as created by the State Treasurer pursuant to N.C.G.S. § 147-86.55,
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et seq. In compliance with the requirements of the Iran Divestment Act and N.C.G.S. § 147-
86.59, Tenant shall not utilize in the performance of the Lease any subcontractor that is
identified on the Final Divestment List.
19.3 Israel Boycott. The Tenant certifies that it has not been designated by the North Carolina
State Treasurer as a company engaged in the boycott of Israel pursuant to N.C.G.S. 147-86.81.
19.4 E-Verify. Tenant shall comply with E-Verify, the federal E-Verify program operated by the
United States Department of Homeland Security and other federal agencies, or any successor or
equivalent program used to verify the work authorization of newly hired employees pursuant to
federal law and as in accordance with N.C.G.S. §64-25 et seq. In addition, to the best of Tenant’s
knowledge, any subcontractor employed by Tenant as a part of this Lease shall be in compliance
with the requirements of E-Verify and N.C.G.S. §64-25 et seq.
19.5 Notices. All notices required to be given hereunder shall be in writing and shall be deemed
served at the earlier of (i) receipt or (ii) seventy-two (72) hours after deposit in registered, certified
or first-class United States mail, postage pre-paid and addressed to the parties at the following
addresses, or such other addresses as may from time to time be designated by written notice given
as herein required:
To Tenant:
With a copy to:
To Landlord:
Town of Chapel Hill
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405 Martin Luther King Jr Blvd
Chapel Hill, NC 27514
Attn: Town Manager
And to:
Town of Chapel Hill
405 Martin Luther King Jr Blvd
Chapel Hill, NC 27514
Attn: Director of Affordable Housing and Community Connections
With a copy to:
Ellinger & Carr, PLLC
2840 Plaza Place, Suite 360
Raleigh, NC 27612
Attn: Susan Ellinger
[signatures follow]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date first
above written.
TENANT:
COMMUNITY HOME TRUST
a North Carolina nonprofit corporation
By: [SEAL]
Name: Everett McElveen Title:
CEO
LANDLORD:
TOWN OF CHAPEL HILL
By:
Theodore Voorhees, Town Manager
ATTEST:
By:
Town Clerk
(Affix Seal)
Approved as to legal form:
, Town Attorney
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EXHIBIT A to TOCH-CHT GROUND ELASE
LEGAL DESCRIPTION
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EXHIBIT B to TOCH-CHT GROUND LEASE
FORM OF MEMORANDUM OF GROUND LEASE
Prepared by and after recording return to:
Sarah Goodin Ellinger
& Carr PLLC
2840 Plaza Place, Suite 360
Raleigh, NC 27612
STATE OF NORTH CAROLINA
COUNTY OF ORANGE MEMORANDUM OF GROUND LEASE
WHEREAS, by that certain Ground Lease entered into as of [ , 2026]
(the “Lease”), TOWN OF CHAPEL HILL (the “Landlord”) leased unto COMMUNITY HOME
TRUST (the “Tenant”) that certain real property in the Town of Chapel Hill, Orange County, State
of North Carolina, more particularly described in Exhibit A attached hereto and incorporated herein
by reference (the “Premises”); and
WHEREAS, the Premises has been leased to Tenant pursuant to the Ground Lease
beginning [ , 2026] (the “Commencement Date”) and terminating on
[ , ] subject to earlier termination as contemplated by the Lease.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
Landlord and Tenant have signed this Memorandum of Lease for the purpose of providing
record notice of the Lease by recording this Memorandum of Lease in the real estate records of
the Orange County Register of Deeds, State of North Carolina; and
The parties agree that the terms of the Lease shall not be affected in any way by this
Memorandum of Lease.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Memorandum of Lease to be duly
executed this [ day of , 2026].
LANDLORD:
TOWN OF CHAPEL HILL
By:
Theodore Voorhees, Town Manager
ATTEST:
By:
Town Clerk
(Affix Seal)
Approved as to legal form:
, Town Attorney
NORTH CAROLINA
COUNTY OF ORANGE TOWN ACKNOWLEDGEMENT
This is to certify that on the day of , 2026, before me personally came
, with whom I am personally acquainted, who, being by me duly sworn, says that he is the
Deputy Town Clerk and Theodore Voorhees is the Town Manager of the Town of Chapel Hill, the
municipal corporation described herein and which voluntarily executed the foregoing; that he
knows the corporate seal of said municipal corporation; that the seal affixed to the foregoing
instrument is said corporate seal, and the name of the municipal corporation was subscribed thereto
by the said Deputy Town Clerk and that the said seal was affixed, all by order of the governing
body of said municipal corporation, and that the said instrument is the act and deed of said
municipal corporation.
WITNESS my hand and official seal, this the day of , 2026.
(SEAL-STAMP)
Notary Public:
My Commission expires:
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TENANT:
COMMUNITY HOME TRUST
a North Carolina nonprofit corporation
By: [SEAL]
Name:
Title:
STATE OF NORTH CAROLINA
COUNTY OF
I, the undersigned, a Notary Public of the City/County and State aforesaid, certify that the
following person personally appeared before me this day, and
I have personal knowledge of the identity of the principal(s);
I have seen satisfactory evidence of the principal’s identity, by a current state or federal
identification with the principal’s photograph in the form of a
; or
A credible witness has sworn to the identity of the principal(s);
each acknowledging to me that he/she voluntarily signed the foregoing document for the
purpose stated therein and in the capacity indicated: .
Witness my hand and official seal, this the day of , 2026.
, Notary Public (Notary Signature)
[NOTARY SEAL]
(Print Name of Notary)
My Commission Expires:
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EXHIBIT A to TOCH-CHT MEMORANDUM OF GROUND LEASE
PREMISES
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EXHIBIT E
Prepared by and after recording return to: Margaret McConnell, Orange County Attorney’s Office, P.O.
Box 8181, Hillsborough, NC 27278
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS (“Declaration”), dated
________, 2026, by Community Home Trust, a North Carolina Non Profit Corporation, for itself,
its successors and assigns (“CHT”), and any subsequent owner of a Project dwelling unit or any
interest therein (collectively, “Owner”), is given as a condition precedent to the award of Orange
County Capital Investment Plan funds.
RECITALS:
WHEREAS, Homestead Gardens is a mixed-income residential development owned by
the Town of Chapel Hill and developed by the Homestead Housing Collaborative to create a
residential community serving households across a range of income levels, including units
affordable to households earning from approximately thirty percent (30%) to one-hundred and
fifteen percent (115%) of Area Median Income (AMI); and
WHEREAS, Community Home Trust is developing a portion of the Homestead Gardens
consisting of twenty-one (21) townhomes for sale (“the Project” or “Project dwelling units”) that
are restricted to households earning sixty-five percent (65%) to eighty percent (80%) of AMI,
which units are the sole subject of the affordability restrictions set forth in this Declaration; and
WHEREAS, Orange County designated up to Nine Hundred Thousand Dollars
($900,000) in FY 2023-24 Capital Investment Plan Affordable Housing Program funds to CHT
for the development of the twenty-one (21) townhomes included in Homestead Gardens located in
Chapel Hill, North Carolina. The Project dwelling units will be 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”); and
WHEREAS, CHT agrees to utilize FY 2023-24 Capital Investment Plan Affordable
Housing Program funds provided by Orange County solely for the purpose of developing the
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Project dwelling units as described in its FY 2023-24 Capital Investment Plan Program Funding
Application dated September 19, 2023, which is hereby incorporated herein and made part of this
Agreement; and
WHEREAS, notwithstanding any provision of this Agreement, the County and CHT
hereto agree and acknowledge that this Agreement does not constitute a final commitment of funds
or site approval, and that the provision of such funds to the Project is conditioned upon Orange
County’s determination to proceed with, modify, or cancel the project based on the results of any
required environmental or permitting review.
WHEREAS, Orange County requires and CHT agrees as a condition precedent to the
awarding of Orange County Capital Investment Plan Affordable Housing Program funds that CHT
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 Project and running with the land for
the purpose of enforcing the County’s long-term affordability requirements of the Orange County
Affordable Housing Bond and Capital Investment Partnership Program 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 Project dwelling units shall be and are
covenants pertaining to the Project dwelling units and running with the land for the term stated
herein and are binding upon all subsequent owners of the Project dwelling units 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 Project will be used throughout the ninety-nine (99) years after
Project Completion (defined as the Project developed and conveyed to income-qualified
homebuyers earning between sixty-five percent (65%) and eighty percent (80%) of HUD
area median income).
B. In the event Owner sells, transfers or exchanges the Project or any portion thereof, the
following shall pertain:
1. During the Affordability Period and subject to the requirements of this Declaration and
the County’s Long-Term Affordability Policy and the Capital Investment Plan
Affordable Housing Program and this Declaration, Owner may sell, transfer, or
exchange the Project dwelling units 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 Project or any interest
therein, that such acquisition is subject to and in fact meets the requirements of this
Declaration and the County’s Long-Term Affordability Policy. 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
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50
requirements of this Declaration. 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 Project 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; provided, however, Owner shall obtain the written
agreement, in form satisfactory to Orange County, of any buyer or successor or other
person acquiring the Project 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 Project or any
part of the Project 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 Properties, 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 Project immediately
upon recordation in the Officer of the Register of Deeds of Orange County. Owner shall comply
with all restrictive covenants herein. This declaration shall terminate ninety-nine (99) years
following Project Completion, unless earlier terminated by written agreement of Orange County
in accordance with its Long-Term Affordability Policy. No sale or transfer to a non-qualified buyer
shall by itself terminate or extinguish these covenants; termination shall occur only upon the
County’s express written release.
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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 Project (1) shall be and are covenants running with the land, encumbering
the Project for the term of this declaration, binding upon Owner's successors in title and all
subsequent Owners of the Project; (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 Project) 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 ensure that these restrictions run with the Project. For the term of this
Declaration, each and every contract, deed or other instrument hereafter executed
conveying the Project 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 Project 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 preserving affordability requirements. Orange
County retains the right to, periodically and every 30 years after the first recording of the
Declaration of Restrictive Covenants on the Project 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 Project dwelling units, 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 Project 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-nine (99) years from the date of Project Completion:
1. Replacement resale clause. Any sale, transfer, or other conveyance of a Project
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dwelling unit during the Affordability Period shall comply with the Community
Home Trust ground lease and resale formula applicable to such unit, as recorded and
as amended from time to time, provided that such resale maintains affordability
within the income limits required by Orange County for the full Affordability
Period.
B. Owner covenants that it will not knowingly take or permit any action or omission that
would result in a violation of the affordability requirements of Orange County, as set forth
in this Declaration and in the County’s Long-Term Affordability Policy. Orange County,
together with Owner, may, by mutual agreement, execute and record amendments or
modifications to this Declaration, provided that any such amendment or modification is
consistent with applicable law and the County’s affordable housing policies. Any duly
executed and recorded amendment shall be binding upon all parties having rights or
interests in the Project under this Declaration.
Owner agrees that County may seek to enforce this Declaration through any remedy
available at law or in equity, including injunctive relief or specific performance. Such
enforcement rights shall apply regardless of whether any transferee or subsequent owner
has executed a separate written assumption of this Declaration or of any related
development agreement, it being the intent of the parties that the covenants contained
herein bind the Project and all persons or entities acquiring any interest therein by
recordation alone.
C. Owner acknowledges that the primary purpose of this Declaration is to ensure compliance
with the affordability requirements of Orange County. In consideration for receiving
Orange County Capital Investment Plan Affordable Housing Bond funds for the Project,
Owner hereby agrees and consents that Orange shall be entitled, for any breach of this
Declaration, and in addition to all other remedies provided by law or in equity, to enforce
Owner’s obligations hereunder by specific enforcement in the General Court of Justice,
Orange County, North Carolina. Owner hereby further specifically acknowledges that the
County and other intended beneficiaries of this Declaration cannot be adequately
compensated by monetary damages in the event of any default.
D. This Declaration may be enforced by Orange County or its designee in the event Owner
fails to comply with any of the requirements of this Declaration. The County may pursue
any and all proceedings at law or in equity against any persons or entity violating or
attempting to violate any provision of this Declaration affecting the Project. If legal costs
are incurred by Orange County in any such proceeding, including attorneys fees and court
costs, including costs of appeal, such costs shall be the responsibility of the Owner and
may be recovered by the County to the extent permitted by law.
SECTION 5 MISCELLANEOUS
A. Severability. If any provision of this Declaration is held to be invalid or unenforceable by
a court of competent jurisdiction, such determination shall not affect the validity or
enforceability of the remaining provisions of this Declaration, all of which shall remain in
Docusign Envelope ID: 35BFB38F-412E-8EA2-808F-B4C617CE3501
full force and effect as if the invalid portion had not been included
B. Notices. Any notice, demand, or other communication (“Notice”) required or permitted
under this Declaration shall be in writing and shall be given by depositing the same in the
United States mail, postage prepaid, addressed to the party to be notified, and sent by
certified or registered mail with return receipt requested, or delivered in person in person
to an officer or principal of party to be notified. Notice deposited in the mail in the manner
described above shall be effective upon mailing. Notice delivered in person shall be
effective upon delivery. For purposes of Notice, the addresses of the parties shall, unless
changed as by written notice given in accordance with this section, be as follows:
1. To the County: Orange County
c/o Housing Department
P.O. Box 8181
Hillsborough, NC 27278
ATTN: Director
2. To CHT: Community Home Trust
Address
Town, NC ZIP
ATTN: President
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.
Community Home Trust
_________________________________
Kimberly Sanchez, President & CEO
Docusign Envelope ID: 35BFB38F-412E-8EA2-808F-B4C617CE3501
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 the President & CEO of Community Home Trust, 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 Chief Executive Officer.
Witness my hand and notarial seal, this the _______day of _______________20__.
_________________________________
_______________________, Notary Public
My commission expires: ___________________
Docusign Envelope ID: 35BFB38F-412E-8EA2-808F-B4C617CE3501
Revised 01/24
9
ORANGE COUNTY—INTERNAL USE ONLY
______________________________________________________________________________
Finance Information
Vendor Name: Community Home Trust Vendor Contact Person: Kimberly Sanchez Phone: 919-338-2443
Address: 105 Conner Drive STE 1000 City Chapel Hill State: NC Zip: 27514 Department: Housing Amount:
$900,000 Purpose: Capital Investment Plan Budget Code(s): 61370035-889125-14001 Vendor # 733079
Vendor Status with NCSOS: Vendor is a BOCC consultant: Yes No
Contract Details
Contract Type: New Amendment (Original Contract: ) (Most Recent Amendment )
Effective Date 7/30/2026 End Date 8/31/2027 Notice Date (Notice Purpose )
Award
Approved by Board (Agenda Date: 1/16/2024); Made or Administered by
Signature Authority
- BOCC Express Delegation (Agenda Date: 1/16/2024)
- Policy 9.4: Under $5,000; Service Under $90,000; Construction Under $250,000
- Budget Policy Section XV (Capital Improvement Project: )
Bidding
Informal Bidding ($30k-$90k); Formal RFP ($90k+); Other (<$30k); Exception(# )
Department Affirmation
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.
This agreement is approved as to technical form and content. Services related to this agreement have already
begun or been completed. Description of the nature of the emergency condition that was addressed:
Department Director’s Signature ________________________________________ Date: ________
Information Technologies
This agreement has been reviewed and is approved as to information technology content and specifications:
Office of the Chief Information Officer___________________________________ Date: ________
Inapplicable because no hardware/software purchases or related services
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
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:
Received for record retention:
Office of the Clerk to the Board __________________________________________Date:________
Docusign Envelope ID: 35BFB38F-412E-8EA2-808F-B4C617CE3501
7/9/2026
7/13/2026
7/15/2026
7/15/2026