HomeMy WebLinkAboutAgenda 07-28-2026; 8-b - Amendment of Restrictive Covenant for Weaver's Grove Funding 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: July 28, 2026
Action Agenda
Item No. 8-b
SUBJECT: Amendment of Restrictive Covenant for Weaver's Grove Funding
DEPARTMENT: Housing
ATTACHMENT(S): INFORMATION CONTACT:
Original 2003 Development Agreement Blake Rosser, 919-245-2492
Consent Agreement
Restrictive Covenant Amendment
Partial Release Deed
Appointment of Substitute Trustee
PURPOSE: To approve an amendment to the original Restrictive Covenant for the Weaver's
Grove development with Habitat for Humanity to allow for the transfer of lots to affordable housing
developer HOPE NC.
BACKGROUND: In 2003, the Board of County Commissioners awarded $250,000 to Habitat for
Humanity of Orange County (Habitat) for the development of Weaver's Grove. The terms of the
agreement were that Habitat would develop all of the lots for homeownership. However, in the
course of development of the Weaver's Grove project, Habitat has altered its plans to allow for
strategic use of rental housing with local affordable housing developers.
One such developer is HOPE NC, which recently appeared before the Board at the May 19, 2026
meeting, during which the Board approved funding for $100,000 for the acquisition of units to be
used as rental housing for households at 30% AMI or below with Intellectual/Developmental
Disabilities. The units being acquired were part of the Weaver's Grove development, specifically
on Sunrise Road, and the acquisition of these units requires that the original funding agreement
be amended to allow for this amended use of 2003 County funds.
The Housing Department has worked with Habitat, HOPE NC, and the County Attorney's Office
to develop the documents and required amendments proposed for Board approval. Those
documents are:
• Consent Agreement for conveyance of the land to HOPE NC;
• Amendment to Declaration of Restrictive Covenants which will allow this conveyance;
• Partial Release of Deed to subordinate the County's lien to that of another funder, the North
Carolina Housing Finance Agency (NCHFA); and
• Appointment of Substitute Trustee to update the County's trustee on record to County
Attorney John Roberts.
FINANCIAL IMPACT: These amendments have no financial impact on the County.
ALIGNMENT WITH STRATEGIC PLAN: This item supports:
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• GOAL 3: HOUSING FOR ALL
OBJECTIVE 7. Expand resources and invest in housing designed for our aging and
disabled residents.
OBJECTIVE 3. Invest in permanent supportive housing and help residents achieve
housing stability.
RECOMMENDATION(S): The Manager recommends that the Board approve and authorize the
Manager to sign all related documents upon final review and approval by the County Attorney.
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NORTH CAROLINA
ORANGE COUNTY
DEVELOPMENT AGREEMENT
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 HABITAT
FOR HUMANITY OF ORANGE COUNTY, NC, INC., a North Carolina non-profit housing
organ aj&n hereinafter referred to as "Habitat"). The effective date of this agreement is
WITNESSTH
WHEREAS, Habitat submitted a request dated October 31, 2002 for funding to assist
with property acquisition on Sunrise Road in Chapel Hill for future housing development; and
WHEREAS, on December 10, 2002 the' Orange County Board of Commissioners
approved the October 31, 2002 request and allocated a total of$250,000 ($126,432 Community
Development Program Income; $123,568 County Housing Trust Fund) for the acquisition of a
17.17-acre parcel on Sunrise Road in Chapel Hill (herein after referred to as the "Property"), and
described in EXHIBIT A attached hereto and incorporated herein; and
WHEREAS, Habitat intends to construct single family dwelling units available to first-
time homebuyers earning up to 80% of HUD area median income; and
WHEREAS, a first-time homebuyer for the purposes of this program is defined as any
low income household that has not owned a home within the past three (3) years including
households living in manufactured housing not permanently affixed to a foundation, or owner-
occupants of homes not feasible for rehabilitation.
WHEREAS, Habitat agrees to utilize the funds provided by the County for the purpose
of acquiring Property for the purpose of constructing 25 dwelling units for first-time homebuyer
families as described in their funding request dated October 31, 2002 and as revised January 23,
2002 which request is incorporated by reference in this Agreement, and hereinafter referred to as
"the Project". This October 31, 2002 request in on file in the office of the Orange County
Department of Housing and Community Development; and
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
representations contained herein, it is agreed between the parties hereto as follows:
1. a. Habitat shall construct the dwelling units defined in the Project, obtain all permits
and licenses necessary to construct the homes on the Property, and comply with
applicable building and zoning ordinances and the N.C. Housing Finance Agency Energy
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Standards. The Project shall be undertaken without residential displacement.
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b. Habitat shall sell the newly constructed dwelling units to qualified buyers
whose income up to 80% of the area median household income by family size, as
determined by the U.S. Department of Housing and Urban Development at the time of
the sale.
C. The funding provided by the County will be provided as a deferred second
mortgage transferable to the individual families at the time of sale to them. The
investment will be secured by a forty (40) year Deed of Trust and Promissory Note,
forgivable at the end of 40 years. This Deed of Trust and Promissory Note shall
constitute a lien on the Property, second only to the Declaration of Restrictive Covenants
described in paragraph 4 of this Agreement, with the County as the secured
party/beneficiary. The County agrees to subordinate its Deed of Trust lien on the
Property to a lien securing private construction financing acquired by Habitat in order to
complete the project.
d. At the time of closing of the sale of each of the dwelling units to a homebuyer,
Habitat shall repay the County $10,000 in the form of a credit to the homebuyer. The
credit to the homebuyer shall be documented by a Promissory Note from the homebuyer
to the County which note shall be secured by a Deed of Trust on the Property naming the
County as beneficiary. The County agrees to subordinate its Deed of Trust lien to a lien
securing private permanent financing acquired by the homebuyer.
e. The period of affordability will be 99 years and will be secured by a
Declaration of Restrictive Covenants that will incorporate a right of first refusal that may
be exercised by Habitat and/or Orange County.
f. Habitat is responsible for soliciting buyers for the dwelling units constructed
on the Property. Habitat and/or its buyers shall be responsible for securing permanent
mortgage financing for the homes built on the Property.
g. Habitat is responsible for verifying the income of the homebuyers, explaining
the second mortgage program to potential homebuyers and certifying by written
documentation signed by the homebuyer that the program requirements have been fully
explained. Habitat shall maintain purchaser files as part of its Books and Records as
required and for the period of time required by Section 6.c. of this Agreement.
2. Progress Payments. The County shall make payments when requested by Habitat in
order to facilitate the property acquisition. Copies of documentation for actual expenses
shall accompany payment requests.
3. Time for Commencement and Completion. Habitat must submit a sound, site-specific
development proposal for developing the Property by June 30, 2005. At that time,
Habitat must provide evidence that the surrounding community has been involved in
development plans. Actual infrastructure construction must begin by September 30,
2005. Habitat will be responsible for providing status reports to the County quarterly
detailing the project activities until project completion beginning in July 2005. In
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addition, Habitat agrees to furnish to the County a copy of its annual audit, performed by
a certified public accountant within 90 days of the end of each fiscal year until the Project
is complete.
The project completion date is the closing date of the purchase by a qualified buyer of the
last of the twenty-five units to be constructed for first time homebuyers or December 31,
2008 whichever is earlier. In the event that Habitat is unable to proceed with any aspect
of the project in a timely manner, and County and Habitat determine that reasonable
extension(s) for completion will not remedy the situation, then the Termination of
Agreement provisions of this Agreement (Section 6.a.) shall pertain. Habitat may, at its
option, submit a written request for a delay of completion for County approval. The
County may, at its option, approve any delay in the completion date or declare Habitat in
default.
Habitat shall monitor the constructed units for affordability for the period of affordability
—ninety-nine (99) years. Final contract completion date shall be the latest end date of all
assisted unit affordability periods.
4. Affordability Requirement. Each unit must remain affordable for a period of ninety-
nine years. Habitat retains full responsibility for compliance with the affordability
requirement for assisted units, unless affordability restrictions are terminated due to the
sale of the Property to a non-qualified buyer in which event the Resale Provisions of
Section 5 of this Agreement pertain. Habitat shall assure compliance with affordability of
assisted units by having recording, at the time it sells each of the twenty-five dwelling
units, a "Declaration of Restrictive Covenants" (EXHIBIT B) on the Property. This
Declaration shall constitute and remain a first lien on the Property during the period of
affordability.
It is further the responsibility of Habitat to rerecord the Declaration of Restrictive
Covenants no later than one day before the expiration of 30 years of the date of its sale of
each of the twenty-five dwelling units in the event the homeowner purchasing the
property from Habitat is still the owner of the dwelling unit at the time of the rerecording.
County retains the right to periodically and every 30 years after the first recording of the
Declaration of Restrictive Covenants on the Property to register, with the Register of
Deeds of Orange County, a notice of preservation of the Restrictive Covenants on the
Property as provided in North Carolina General Statute § 47B-4 or any comparable
preservation law in effect at the time of the recording of the notice of preservation. It is
the intent of this Section of this Agreement that the 99 year affordability requirement
contained herein be accomplished and that Habitat and the County will do what is
necessary to ensure that the same is not extinguished 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. Both Habitat and County agree to do what each
must do to accomplish the 99 year affordability requirement.
5. Resale Provisions. Habitat shall assure compliance with affordability of assisted units
through the Declaration of Restrictive Covenants. The Declaration of Restrictive
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Covenants shall include at least the following elements in their resale provisions for the
Improvements:
5.1 If the buyer no longer uses the Property as a principal residence or is unable to
continue ownership,then the buyer must sell,transfer, or otherwise dispose of
their interest in the Property only to a qualified homebuyer, i.e., a low-income
household, one whose combined income does not exceed 80% of the area median
household income by family size, as determined by the U.S. Department of
Housing and Urban Development at the time of the transfer,to use as their
principal residence.
5.2 However, if the property is sold during the term of affordability to a non-qualified
homebuyer, the Right of First Refusal provision of the New and Existing First-
Time Homebuyer Program portion of the County's Long-Term Housing
Affordability Policy must be followed and the net sales proceeds (sales price less:
(1) selling cost, (2) the unpaid principal amount of the original first mortgage and
(3) the unpaid principal amount of the initial County contribution and any other
initial government contribution secured by a deferred payment promissory note
and deed of trust) or "equity" will be divided 50150 by the seller of the Property
and the County.
5.3 The resale provision shall remain in effect for the full affordability period—99
years.
6. 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 properties constructed with funds provide
affordable units to low-income families. It is the County's intention that the full public benefit of
this project shall be completed under the auspices of Habitat for the assisted units as follows:
i. In the event that Habitat is unable to proceed with any aspect of the Project in a
timely manner, and County and Habitat determine that reasonable extension(s) for
completion will not remedy the situation,then Habitat will retain responsibility for
requirements for any dwelling units assisted and County will make no further
payments to Habitat.
ii. In the event that Habitat,prior to the contract completion date, is unable to continue
to function due to, but, not limited to, dissolution or insolvency of the organization,
its filing a petition for bankruptcy or similar proceedings, or is adjudged bankrupt or
fails to comply or perform with provisions of this agreement, then Habitat shall,upon
the County's request, convey to the County the properties assisted with funds.
Conveyance shall be at the sole discretion of County and on a dwelling unit by
dwelling unit basis.
Conveyance of properties shall be on the terms set forth herein:
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Conveyance of properties shall occur within thirty (30) days of County and Habitat's
agreement of Habitat's inability to continue as a viable organization. Habitat shall
convey the subject properties to County by general warranty deed, free and clear of
all liens and encumbrances of record except those which create a beneficial interest in
County(Declaration of Restrictive Covenants and Deed of Trust).
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. With respect to
any event of default, the non-defaulting parry may exercise any right available to it at law or in
equity with respect to such default.
C. Books and Records. Habitat shall maintain records of its grant requirements
under this contract for a period of not less than five (5) full fiscal years following the contract
completion date.
i. Habitat shall ensure access to records and financial statements, as necessary, to
provide effective monitoring and evaluation of project performance. Upon reasonable
advance notice, County or its authorized representatives may from time to time inspect,
audit, and make copies of any of Habitat's records that relate to this contract. If any audit
by County discloses that payments to Habitat were in excess of the amount to which
Habitat was entitled under this contract,Habitat shall promptly pay to County the amount
of such excess. If the excess is greater than 1% of the contract amount, Habitat shall also
reimburse County its reasonable costs incurred in performing the audit.
ii. Habitat shall maintain files of all buyers, regardless of length of occupancy,
residing in assisted units. Documentation shall verify eligibility for federal assisted
housing, at the point of initial closing on the unit, and every subsequent buyer thereafter
for the period of affordability. Information maintained shall include buyer income level,
ethnic data, female head of household, and disability status and Property and
Improvement purchase price.
iii. Habitat shall maintain records verifying the affordability of the assisted units.
C. 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 parry. 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:
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i. To the County: Orange County
c/o Housing and Community Development
Department
P.O. Box 8181
Hillsborough,NC 27278
ATTN: Director
ii. To Habitat: Habitat for Humanity of Orange County,NC, Inc.
P.O. Box 407
Hillsborough,NC 27278
ATTN: Executive Director
Either the County or Habitat 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 Habitat in this
Agreement shall occur without the prior written consent of the County; neither may Habitat
assign this Agreement without the prior written consent of County.
f. Conflict of Interest. Affordable Rentals agrees to abide by the provisions of 24
CFR 570.611 with respect to conflicts of interest, and covenants that it presently has no financial
interest and shall acquire any financial interest, direct or indirect, that would conflict in any
manner or degree with the performance of services required under this Agreement. Affordable
Rentals further covenants that in performance of this Agreement no person having such a
financial interest shall be employed or retained by Affordable Rentals hereunder. These
conflicts of interest provisions apply to any person who is an employee, agent, consultant, or
elected official or appointed official of the County, or any designated public agencies or
subrecipients that are receiving funds under the HOME Investment Partnership Program.
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 legally possible, Habitat 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 Habitat, its employees, agents, officers, and
contractors in connection with this Agreement. In the event any such action or claim is brought
against County, Habitat shall, upon County's tender, defend the same at Habitat's sole cost and
expense, promptly satisfy any judgment adverse to County or to County and Habitat jointly, and
reimburse County for any loss, cost, damage, or expense, including attorney fees suffered or
incurred by County.
i. Subcontracting. Habitat shall not subcontract work under this contract, in whole
or in part,without County's prior written approval. Habitat 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 obligations of Habitat specified in this contract. Notwithstanding
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County's approval of a subcontractor, Habitat shall remain obligated for full performance of this
contract and County shall incur no obligation to any subcontractor Habitat shall indemnify,
defend, and hold County harmless from all claims of its contractors.
j. No Joint Venture or Agency. The County and Habitat each agree and
acknowledge that nothing contained herein or otherwise, including, without limitation, any act of
the County or Habitat 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 Habitat 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 Habitat be a waiver by the County of its rights
and remedies with respect to that or any other breach.
1. 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 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
Habitat 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 Habitat
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. Habitat 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 this Project.
Further, Habitat shall provide a Statement regarding the utilization of minority and women-
owned businesses in the planning and development of the Project. This statement will be Exhibit
D to this agreement.
o. Headings. Headings are for convenience only and shall not be used to interpret or
construe its provision.
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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. I
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 Property from and after the date
hereof. Without limiting the generality of the foregoing, Habitat shall comply with all federal,
state and local laws, regulations and ordinances applicable to the expenditure of funds provided
by the County, to purchase and develop the Property.
S. Publicity; Signage. Habitat agrees to provide such publicity with respect to the
County's participation in the development of the Property as the County shall reasonably require.
Any signage at the Property shall acknowledge the County's role and contribution.
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 on and the
same instrument.
U. No Third Party Rights. The parties hereto covenant and agree that nothing
contained in this Agreement or any act by the County or Habitat 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,
Habitat 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 Property including, without limitation,
inspection of the Property in the performance of such functions.
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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.
COUNTY OF ORANGE, NORTH CAROLINA
(SEAL)
/nM. Link, Jr. ounty Manager
ATTEST: 'yT Owl
Donfia Baker
Clerk to the Board of Commissioners
Approv d as to form nd legality
eoffre le ill, County Attorney
This document has been pr audited in accordance with the N.C. Local Government and Fiscal
Control Act. Kenneth Chavious, Finance Director
NORTH CAROLINA
ORANGE COUNTY
This is to certify that on this day personally came before me Donna Baker, with whom I
am personally acquainted, and being by me duly sworn, says that John M. Link, Jr. is the County
Manager of Orange County, NC, and that she the said Donna Baker, is the Clerk to the Board of
Commissioners of the County of Orange, the body politic and corporate named within and which
executed the foregoing instrument; that she knows the common seal of said County; that the seal
affixed to said instrument is said common seal; that the name of Orange County was subscribed
thereto by the said County Manager of Orange County, NC and said Donna Balser subscribed
their names hereto and said common seal was affixed, all by order of the Board of County
Commissioners of Orange County and that said instrument is the act and deed of Orange County.
Witness my hand and notarial seal, this the day of 2003.
/ _/� Notary ublic
My commission expires: � �(/�f
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Habitat for Humanity of Orange County, NC,
Inc.
(SEAL)
President
s
ATTEST: � `� l
Secretary
NORTH CAROLINA
011 OUNTY
I, t _ r rte', Notary Public in and for the above named Coty and
State, do hereby certify that on this day personally appeared before me �'O it 4k� "OAh
whom I am personally acquainted, who,being by me duly sworn, says at he is Secretary an4 lLh I.
lirof Orange County, NC, Inc., a North
Carolmi aation, and that by authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its President, sealed with its corporate seal and
attested to by its Secretary.
Witness my hand and notarial seal, this the day of 2003.
Notary Public
My commission expires: ��,
�FtY D.
C� '
• o
• IOTA&Y• -
• A •
C, ° I`+U�L1G •
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EXHIBIT A
PROPERTY DESCRIPTION
Located on the east side of S.R. 1732, a/k/a Sunrise Road, and BEING all of that 17.179 acre
parcel shown on the plat of survey entitled, "PROPERTY SURVEYED FOR HABITAT FOR
HUMANITY OF ORANGE COUNTY, INC.," by Terry L. Westendorf, Professional Land
Surveyor, dated January 14, 2003, and filed of record in Plat Book , Page ,
Orange County Registry, to which plat reference is hereby made for a more particular description
of the same.
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Exhibit B
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS (Declaration), dated
, by HABITAT FOR HUMANITY OF ORANGE COUNTY, NC, Inc.
hereinafter referred to as "Habitat' and its successors and assigns (Owner), is given as a
condition precedent to the award of Housing Trust funds by Orange County, a body politic and
corporate, a political subdivision of the State of North Carolina, together with any successor to
its rights, duties, and obligations.
RECITALS:
WHEREAS, Habitat submitted a request dated October 31, 2002 for funding to assist
with property acquisition on Sunrise Road in Chapel Hill for future housing development; and
WHEREAS, on December 10, 2002 the Orange County Board of Commissioners
approved the October 31, 2002 request and allocated a total of$250,000 ($126,432 Community
Development Program Income; $123,568 Orange County Housing Trust Fund) for the
acquisition of a 17.179 acre parcel on Sunrise Road in Chapel Hill (herein after referred to as the
"Property"), and described in EXHIBIT A attached hereto and incorporated herein; and
WHEREAS, Habitat intends to construct single family dwelling units available to first-
time homebuyers earning up to 80% of HUD area median income; and
WHEREAS, a first-time homebuyer for the purposes of this program is defined as any
low income household that has not owned a home within the past three (3) years including
households living in manufactured housing not permanently affixed to a foundation, or owner-
occupants of homes not feasible for rehabilitation.
WHEREAS, Habitat agrees to utilize the funds provided by the County for the purpose
of acquiring Property for the purpose of constructing 25 dwelling units for first-time homebuyer
families as described in their funding request dated October 31, 2002 and as revised January 23,
2002 which request is incorporated by reference in this Agreement, and hereinafter referred to as
"the Project". This October 31, 2002 request in on file in the office of the Orange County
Department of Housing and Community Development; and
NOW, THEREFORE, in consideration of the promises and covenants hereinafter set
forth and of other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Owner intends, declares, and covenants that the regulatory and restrictive
covenants set forth herein governing the use, occupancy, and transfer of the Property shall be
and are covenants pertaining to the Property and running with the land for the term stated herein
and are binding upon all subsequent owners of the Property and for such term, except as
specifically provided herein, and are not merely personal covenants of Owner.
Declaration of Restrictive Covenants
Page 1
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SECTION 1 REPRESENTATIONS, COVENANTS AND WARRANTIES OF OWNER
Owner hereby represents, covenants and warrants as follows:
a. Subject to the requirements of the Orange County Housing Trust Fund and this
Declaration, Owner may sell, transfer, or exchange the Property at any time, but Owner shall
notify in writing and obtain the agreement of any buyer or successor or other person acquiring
the Property or any interest therein, that such acquisition is subject to the requirements of this
Declaration and to the requirements of the Orange County Housing Trust Fund. Owner agrees
that County may void any sale, transfer, or exchange of the Property or any portion of the
Property if the buyer or successor or other person fails to assume in writing the requirements of
this Declaration and the affordability requirements of the Orange County Housing Trust Fund.
b. Owner will, at the time of execution, delivery and recording of this Declaration, have
good and marketable title to the Property, free and clear of any lien or encumbrance (except
encumbrances created pursuant to this Declaration or other permitted encumbrances).
C. Owner warrants that it has not and will not execute any other declaration with provisions
contradictory to, or in opposition to, the provisions hereof, and that in any event, the
requirements of this Declaration are paramount and controlling as to the rights and obligations
herein set forth and supersede any other requirements in conflict herewith.
SECTION 2 TERM OF DECLARATION
a. This Declaration, and the Terms of Affordability specified herein, apply to the Property
immediately upon recordation, and Owner shall comply with all restrictive covenants herein.
This declaration shall terminate ninety-nine years after Project Completion, unless Orange
County Housing Trust Fund affordability restrictions are terminated due to the sale of the
Property to a non-qualified buyer as provided herein.
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. The Owner shall pay all fees and charges incurred in connection therewith.
b. Owner intends, declares and covenants, on behalf of itself and all future Owners of the
Project during the term of this Declaration, that this Declaration and the covenants and
restrictions set forth in this Declaration regulating and restricting the use, occupancy and
transfer of the Property (1) shall be and are covenants running with the land, encumbering the
Property for the term of this declaration, binding upon Owner's successors in title and all
subsequent Owners of the Property; (2) are not merely personal covenants of Owner; and (3)
shall bind Owner(and the benefits shall inure to the County and any past,present or prospective
owner of the Property) and its respective successors and assigns during the term of this
Declaration of Restrictive Covenants
Page 2
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Declaration. Owner hereby agrees that any and all requirements or privileges of estate are
intended to be satisfied, or in the alternate, that an equitable servitude has been created to insure
that these restrictions run with the Property. For the term of this Declaration, each and every
contract, deed or other instrument hereafter executed conveying the Property or portion thereof
shall expressly provide that such conveyance is subject to this Declaration, provided, however,
the covenants contained herein shall survive and be effective regardless of whether such
contracts, deed, or other instrument hereafter executed conveying the Property or portion
thereof provides that such conveyance is subject to this Declaration. It is further the
responsibility of Owner to rerecord the Declaration of Restrictive Covenants no later than one
day before the expiration of 30 years of the date of its sale of each of the four dwelling units in
the event the homeowner purchasing the property from Owner is still the owner of the dwelling
unit at the time of the rerecording. Orange County retains the right to periodically and every 30
years after the first recording of the Declaration of Restrictive Covenants on the Property to
register, with the Register of Deeds of Orange County, a notice of preservation of the
Restrictive Covenants on the Property as provided in North Carolina General Statute § 47B-4 or
any comparable preservation law in effect at the time of the recording of the notice of
preservation. It is the intent of this Section of this Declaration that the 99 year affordability
requirement contained herein be accomplished and that Owner and Orange County will do what
is necessary to ensure that the same is not extinguished 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. Both Owner and Orange County agree to do what each must do to
accomplish the 99 year affordability requirement.
SECTION 4 ENFORCEMENT OF AFFORDABLE HOUSING REQUIREMENTS
A. Rights of Refusal
a. Grant and Effect. Orange County and Habitat each are herein granted a right
of first refusal to purchase the property as described in this Section. Any assignment,
sale, transfer, conveyance, or other disposition of the Property or any part thereof
whether voluntarily or involuntarily or by operation of law ("Transfer") shall not be
effective unless and until the below-described procedure is followed.
b. Right of First Refusal. If the original homebuyer or any subsequent
qualified homebuyer ("Buyer") contemplates a Transfer to a non low-income household
as defined herein, Buyer shall send to Orange County and Habitat, at the address noted in
the Notice section of this Declaration, not less than 90 days prior to the contemplated
closing date of the Transfer, a "Notice of Intent to Sell." This Notice of Intent to Sell
shall be accompanied by a copy of a completed, fully executed bona fide offer to
purchase the Property on the then current North Carolina Bar Association "Offer to
Purchase and Contract" form. If Orange County or Habitat elects to exercise its said right
of refusal, it shall notify the Buyer of its election to purchase within 30 days of its receipt
of the Notice and shall purchase the Property or portion thereof within 90 days of the
receipt of the "Notice of Intent to Sell." As between Orange County and Habitat, if both
wish to and have the means to exercise the right of first refusal, Habitat shall have
priority.
Declaration of Restrictive Covenants
Page 3
17
C. Sales After Failure to Exercise Rights of Refusal. If neither Orange County nor
Habitat advise the Buyer in a timely fashion of an intent to purchase the Property, then
the Buyer shall be free to Transfer the property in accordance with this Section.
d. Assignability. Orange County and Habitat each may assign their said rights of
first refusal, one to the other, without the Buyer's consent.
B. Resale Provisions
a. If the buyer no longer uses the Property as a principal residence or is unable to
continue ownership, then the buyer must sell, transfer, or otherwise dispose of their
interest in the Property only to a qualified homebuyer, i.e., a low-income household, one
whose combined income does not exceed 80% of the area median household income by
family size, as determined by the U.S. Department of Housing and Urban Development at
the time of the transfer, to use as their principal residence.
b. However, if the property is sold during the term of affordability to a non-qualified
homebuyer, the Right of First Refusal provision of the New and Existing First-Time
Homebuyer Program portion of the County's Long-Term Housing Affordability Policy
must be followed and the net sales proceeds (sales price less: (1) selling cost, (2) the
unpaid principal amount of the original first mortgage and (3) the unpaid principal
amount of the initial County contribution and any other initial government contribution
secured by a deferred payment promissory note and deed of trust) or "equity" will be
divided 50150 by the seller of the Property and the County.
C. The resale provisions shall remain in effect for the full affordability period — 99
years.
C. Owner covenants that it will not knowingly take or permit any action that would result in
a violation of the affordability requirements of the Orange County Housing Trust Fund. Orange
County, together with Owner, may execute and record any amendment or modification of this
Declaration and such amendment or modification shall be binding on third parties granted rights
under this Declaration.
D. Owner acknowledges that the primary purpose for requiring compliance by Owner with
restrictions provided in this Declaration is to assure compliance with the affordability
requirements of the Orange County Housing Trust Fund, AND BY REASON THEREOF,
OWNER IN CONSIDERATION FOR RECEIVING AFFORDABLE HOUSING BOND
PROGRAM FUNDS FOR THE PROPERTY HEREBY AGREES AND CONSENTS THAT
ORANGE COUNTY SHALL BE ENTITLED, FOR ANY BREACH OF THE PROVISIONS
HEREIN, AND IN ADDITION TO ALL OTHER REMEDIES PROVIDED BY LAW OR IN
EQUITY, TO ENFORCE BY SPECIFIC PERFORMANCE OWNER'S OBLIGATIONS
UNDER THIS DECLARATION IN A STATE COURT OF COMPETENT JURISDICTION,
WITH VENUE IN ORANGE COUNTY. Owner hereby further specifically acknowledges that
the beneficiaries of Owner's obligations hereunder cannot be adequately compensated by
Declaration of Restrictive Covenants
Page 4
18
monetary damages in the event of any default hereunder.
E. This Declaration may be enforced by Orange County or its designee in the event the
Owner fails to satisfy any of the requirements of this Declaration by proceedings at law or in
equity against any person or persons violating or attempting to violate any covenant. If legal
costs are incurred by Orange County, such legal costs, including attorney fees and court costs
(including costs of appeal), are the responsibility of, and may be recovered from the Owner.
I
SECTION 6 MISCELLANEOUS
i
a. Severability_ The invalidity of any clause, part, or provision of this Declaration shall not
affect the validity of the remaining portions thereof.
b. Notices. Any Notice shall be in writing and shall be given by depositing the same
in the United States mail, post-paid and registered or certified, and addressed to the parry to be
notified, with return-receipt requested, or by delivering the same in person to an officer or
principal of such parry. 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:
i. To the County: Orange County
c/o Housing and Community Development Department
P.O. Box 8181
Hillsborough,NC 27278
ATTN: Director
ii. To Habitat: Habitat for Humanity of Orange County, Inc.
P.O. Box 407
Hillsborough,NC 27278
ATTN: Executive Director
C. Governing Law. This Declaration shall be governed by the laws of the State of
North Carolina and,where applicable, the laws of the United States of America.
Declaration of Restrictive Covenants
Page 5
19
IN WITNESS WHEREOF, the Owner has caused this Declaration to be signed by its
duly authorized representative, on the day and year first above written.
Habitat for Humanity of Orange County,
NC, Inc.
i
(SEAL)
President
ATTEST:
Secretary
NORTH CAROLINA
ORANGE COUNTY
I, , Notary Public in and for the above named County and
State, do hereby certify that on this day personally appeared before me with
whom I am personally acquainted, who, being by me duly sworn, says at he is Secretary and that
is President of Habitat for Humanity of Orange County, NC, Inc., a North
Carolina corporation, and that by authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its President, sealed with its corporate seal and
attested to by its Secretary.
Witness my hand and notarial seal, this the day of 2003.
Notary Public
My commission expires:
Isg:orangecounty\COV ENANT.doc
Declaration of Restrictive Covenants
Page 6
20
STATE OF NORTH CAROLINA
CONSENT AGREEMENT
COUNTY OF ORANGE
This CONSENT AGREEMENT("Agreement') is hereby made and entered into
this the day of 2026,by and between ORANGE COUNTY,hereinafter referred to
as ("County"),HABITAT FOR HUMANITY OF ORANGE COUNTY,N.C.,INC.,hereinafter
referred to as ("Habitat'), and HOPE COMMUNITIES LLC, a North Carolina limited liability
company("HOPENC").
WITNESSETH:
WHEREAS,Orange County awarded funding in the amount of Two Hundred Fifty
Thousand Dollars($250,000)to Habitat for Humanity of Orange County,Inc.to assist in the
acquisition of approximately 17.17 acres of real property located on Sunrise Road in Chapel Hill,
North Carolina(the"Property"),more particularly described in Exhibit A attached hereto and
incorporated herein by reference,for the purpose of developing affordable housing;
WHEREAS,Habitat agreed to utilize the funds provided by the County to acquire the
Property and to construct affordable single-family dwelling units for sale to first-time
homebuyers with household incomes at or below eighty percent(80%)of the area median
income,as determined by the U.S.Department of Housing and Urban Development("HUD");
WHEREAS,the County and Habitat entered into that certain Development Agreement
dated February 24,2003(the"Development Agreement'),which sets forth the terms and
conditions governing the development of the Property and the use of County funds;
WHEREAS,pursuant to the Development Agreement,Habitat agreed,among other
things,to(i)sell newly constructed dwelling units to income-qualified homebuyers earning up to
eighty percent(80%)of HUD area median income,(ii)facilitate the provision of County
assistance to such homebuyers in the form of a deferred second mortgage secured by a
promissory note and deed of trust,forgivable after forty(40)years,(iii)provide a credit in the
amount of Ten Thousand Dollars($10,000)to each homebuyer at closing,evidenced by a
promissory note payable to the County and secured by a deed of trust,and(iv)ensure that the
Property is subject to long-term affordability restrictions for a period of ninety-nine(99)years,
as set forth in a recorded Declaration of Restrictive Covenants(the"Restrictive Covenants");
WHEREAS,in furtherance of the Development Agreement,a Declaration of Restrictive
Covenants was recorded in the Orange County Registry,imposing affordability,use,and transfer
restrictions on the Property for the benefit of the County and the public;
WHEREAS,in connection with the Development Agreement,Habitat executed a
Promissory Note in favor of the County in the original principal amount of Two Hundred Fifty
Thousand Dollars($250,000.00),which is secured by a Deed of Trust and Security Agreement
recorded in Book 2907,Page 169,Orange County Registry(the"County Deed of Trust');
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WHEREAS,Habitat has since developed the Property and constructed a total of one
hundred two(102)dwelling units,a portion of which are subject to the Development Agreement
and Restrictive Covenants;
WHEREAS,Habitat has conveyed thirty-one(3 1)of such dwelling units to homebuyers,
and the parties acknowledge that Habitat remains subject to certain continuing obligations under
the Development Agreement,including obligations related to buyer credits and related financing
instruments;
WHEREAS,Habitat now desires to convey a long-term leasehold interest
("conveyance")in eleven(11)of the remaining dwelling units(the"Subject Units"),identified in
Exhibit B attached hereto and incorporated herein by reference,to HOPENC,a nonprofit
organization,for the purpose of providing affordable rental housing to low-income individuals
with intellectual and developmental disabilities;
WHEREAS,HOPENC intends to sublease and operate the Subject Units as affordable
rental housing for income-qualified tenants,consistent with the County's affordable housing
goals and policies;
WHEREAS,HOPENC has advised that financing for the acquisition and operation of
the Subject Units requires the release of the Subject Units from the lien of the County Deed of
Trust,and the County is willing to approve a partial release of the Subject Units from the County
Deed of Trust,subject to the terms and conditions of this Agreement;
WHEREAS,the County,Habitat,and HOPENC desire to facilitate the conveyance of
the Subject Units and to establish the conditions under which such conveyance may occur,
including the amendment of the Restrictive Covenants,attached hereto as Exhibit C and
incorporated herein by reference,as necessary to permit the use of the Subject Units for
affordable rental housing consistent with this Agreement,while preserving the obligations set
forth in the Development Agreement;
WHEREAS,the parties agree that the proposed conveyance and use of the Subject Units
for affordable rental housing for low-income individuals with disabilities is consistent with and
furthers the public purposes underlying the County's original funding and affordable housing
policies;
WHEREAS,the County,Habitat,and HOPENC now desire to enter into this Agreement
to evidence the County's consent to the conveyance of the Subject Units,to establish the
conditions under which such conveyance shall occur,and to ensure the continued affordability
and compliance of the Subject Units with applicable requirements.
NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements
contained herein,the parties hereto agree as follows:
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1. Purpose.
The purpose of this Agreement is to:
a. Evidence the County's consent to the conveyance of a long-term leasehold interest in
eleven (11) dwelling units located within the Property (the "Subject Units") from
Habitat to HOPENC for the purpose of leasing residential units to low-income tenants
with disabilities,consistent with Orange County's Affordable Housing Policy;
b. Establish the conditions under which such conveyance may occur, including the
amendment of the Declaration of Restrictive Covenants recorded against the Property
to permit the use of the Subject Units for affordable rental housing,
c. Require that the conveyance of such Subject Units be made expressly subject to the
Restrictive Covenants as amended, and that HOPENC accept and comply with such
Restrictive Covenants,and
d. Ensure that the Subject Units continue to be used and maintained as affordable housing
for low-income tenants in a manner consistent with the County's affordable housing
objectives.
This Agreement is intended to facilitate the foregoing without waiving, modifying, or
releasing any obligations of Habitat under the Development Agreement.
2. County Consent to Transfer.
The County hereby consents to the conveyance of a long-term leasehold interest by Habitat
of eleven (11) units located within the Property encumbered by the Declaration of
Restrictive Covenants in Orange County Records Book 2907, Page 155 to HOPENC,
provided that such conveyance is conditioned upon and subject to:
a. The execution and recordation of an amendment to the Declaration of Restrictive
Covenants recorded in Book 2907, Page 155, Orange County Registry (the
"Restrictive Covenants"),to permit the use of the Subject Units for affordable rental
housing,and
b. HOPENC's acceptance of title to the Subject Units subject to the Restrictive
Covenants as so amended.
This consent is limited solely to the conveyance of the Subject Units to HOPENC as
contemplated herein and shall not be deemed to constitute a waiver or modification of
any other restrictions,obligations,or requirements applicable to the Property under the
Restrictive Covenants,the Development Agreement,or any other applicable instrument.
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The County's consent to the conveyance of the Subject Units shall not be effective unless
and until the Restrictive Covenants,as amended,have been executed and recorded in
accordance with Section 5 of this Agreement.
3. Habitat Obligations.
Habitat agrees it remains fully bound by the terms of the Development Agreement and
the Restrictive Covenants,as amended,encumbering the Property.The conveyance of the
Subject Units to HOPENC does not relieve,limit,or otherwise affect any obligations of
Habitat to the County under the Development Agreement or the Restrictive Covenants.
Without limiting the foregoing,Habitat acknowledges it remains responsible for
performing its obligations under the Development Agreement,including,as applicable
and as set forth in the Development Agreement:
a. The sale of dwelling units to income-qualified homebuyers earning up to eighty
percent(80%)of HUD area median income;
b. The facilitation of County funding assistance to such homebuyers in the form of a
deferred second mortgage financing secured by a promissory note and deed of
trust,subject to the terns of the Development Agreement;
c. The provision of a credit in the amount of Ten Thousand Dollars($10,000)to
homebuyers at closing,in accordance with the Development Agreement;and
d. Compliance with the long-term affordability requirements applicable to the
Property as set forth in the Restrictive Covenants.
4. HOPENC Obligations.
HOPENC agrees to accept the conveyance of the Subject Units subject to the Restrictive
Covenants as amended,to comply with the Restrictive Covenants as amended,and to
cooperate with the County in monitoring such compliance.Without limiting the
foregoing,HOPENC agrees as follows:
a. Records and Reporting.HOPENC shall maintain complete and accurate records
sufficient to demonstrate compliance with applicable income and affordability
requirements,including tenant income documentation,rent schedules,and
occupancy information.Upon reasonable request,HOPENC shall provide such
records to the County for review.
b. Access.Upon reasonable notice and during normal business hours,the County or
its authorized agent may inspect the Subject Units and review relevant records for
the purpose of verifying compliance with the amended Restrictive Covenants.
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c. Certification.HOPENC shall,upon request by the County,provide periodic
written certifications that Subject Units are being operated in compliance with the
Amended Restrictive Covenants including applicable income and use restrictions.
d. Noncompliance.In the event the County determines that Subject Units are not in
compliance with the Amended Restrictive Covenants,the County shall provide
written notice to HOPENC,and HOPENC shall have a reasonable opportunity to
cure such noncompliance in accordance with the terms of the Restrictive
Covenants as amended.
5. Restrictive Covenants Amendment.The Parties agree that the Restrictive Covenants
originally recorded in Orange County Records Book 2907,Page 155 must be amended
and recorded in the Orange County Registry prior to conveyance by Habitat of the
Subject Units to HOPENC.The County and Habitat agree to execute an amendment to
the Restrictive Covenants in a form acceptable to the County,for the purpose of
permitting the Subject Units to be owned and operated as affordable rental housing. Such
an amendment shall,among other provisions,establish applicable use and affordability
requirements for the Subject Units consistent with the County's affordable housing
objectives.Habitat shall ensure that any deed conveying the Subject Units to HOPENC
expressly references the Restrictive Covenants,as amended.HOPENC shall accept title
to the Subject Units subject to the Restrictive Covenants as so amended.
6. Partial Release of County Deed of Trust.The Parties acknowledge that the Subject
Units are presently subject to the lien of the County Deed of Trust recorded in Book
2907,Page 169,Orange County Registry.In connection with the conveyance of the
Subject Units to HOPENC and the continued use of the Subject Units as affordable rental
housing,the County agrees to execute and record a Partial Release Deed releasing the
Subject Units from the lien of the County Deed of Trust.The Partial Release Deed shall
be recorded only after or contemporaneously with the recordation of the Amended
Restrictive Covenants and the Appointment of Substitute Trustee.
The Parties acknowledge and agree that such Partial Release Deed shall apply solely to
the Subject Units identified in Exhibit B and shall not constitute a satisfaction,
cancellation,waiver,or release of any obligations of Habitat under the Development
Agreement,Promissory Note,Restrictive Covenants,or County Deed of Trust,or any
other Governing Documents.Except as expressly released with respect to the Subject
Units,the County Deed of Trust shall remain in full force and effect according to its
terms.
7. Use&Affordability Acknowledgment.HOPENC acknowledges and agrees that the
Subject Units shall be owned and operated in compliance with the Restrictive Covenants,
as amended,including the requirement that the Subject Units be used solely as long-term
residential rental housing for income-qualified tenants earning up to eighty percent(80%)
of HUD area median income,and shall comply with applicable rent and occupancy
restrictions.HOPENC further acknowledges that such affordability requirements shall
apply to the Subject Units for ninety-nine(99)years,in accordance with the terms of the
Restrictive Covenants,as amended.HOPENC shall not use or permit the use of the
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Subject Units in any manner inconsistent with the Restrictive Covenants,as amended.
Such obligations shall be binding upon HOPENC and its successors and assigns.
8. No Modification;Reservations of Rights.Except for the Partial Release Deed described
in Section 6 of this Agreement,nothing in this Agreement or in the Amended Restrictive
Covenants shall be deemed to modify,amend,waive,release,or otherwise affect any
obligations of the County or Habitat under the Development Agreement executed
February 24,2003,the Declaration of Restrictive Covenants,as amended,the Promissory
Note,the Deed of Trust,or any other agreement or instrument executed in connection
therewith(collectively,the"Governing Documents").
No action taken by the County in connection with this Agreement,including the consent
to the conveyance of the Subject Units,shall be construed as a waiver of any past,
present,or future noncompliance with the Governing Documents.Habitat acknowledges
and agrees that it remains fully bound by the terms and conditions of the Governing
Documents and that all such obligations shall continue in full force and effect.The
County expressly reserves all rights and remedies available under the Governing
Documents and applicable law to enforce compliance with the provisions applicable to
the Subject Units.
No consent,approval,or action by the County pursuant to this Agreement shall be
deemed to establish a course of dealing or precedent with respect to any other property or
transaction.
9. Duration.The term of this Agreement shall become effective upon execution by all parties
and continue for so long as the Restrictive Covenants,as amended,remain in effect.
10.Survival. Termination or expiration of this Agreement shall not affect the validity or
enforceability of the Restrictive Covenants or other Governing Documents recorded
pursuant to this Agreement.
11.No Third-Party Beneficiaries.This Agreement is entered into solely for the benefit of the
County, Habitat, and HOPENC. No other person or entity is an intended third-party
beneficiary of this Agreement.
12.Indemnification.To the extent permitted by law,HOPENC and Habitat shall indemnify,
defend, and hold harmless the County and its officers, employees, and agents from and
against any and all claims,damages,liabilities,and expenses,including attorneys'fees and
other costs of defense,arising out of or resulting from:
a. The use or operation of the Subject Units by HOPENC;
b. Any failure by HOPENC to comply with the Restrictive Covenants, as amended;
and
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26
c. Any act or omission of Habitat or HOPENC in connection with the conveyance of
the Subject Units;
Provided,however,that such indemnification shall not apply to the extent caused by the
negligence or willful misconduct of the County.
13.Entire Agreement. This Agreement represents the entire and integrated agreement
between the parties and supersedes all prior discussions,negotiations,and understandings
related thereto.
14.Amendment.This Agreement may be amended only by written agreement of the parties.
15.Governing Law.This Agreement shall be governed by and construed in accordance with
the laws of the State of North Carolina.
16.Counterparts;Electronic Signatures.This Agreement may be executed in counterparts,
each of which shall be deemed an original,but all of which together shall constitute one
and the same instrument.Electronic and PDF signatures shall be deemed originals for all
purposes.
IN WITNESS WHEREOF,the parties have caused this Consent Agreement to be executed as of
12026.
FOR ORANGE COUNTY
Travis Myren,Orange County Manager
FOR HABITAT FOR HUMANITY OF ORANGE COUNTY,INC.
,President
FOR HOPENC
President
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Exhibit A
(Located on the east side of S.R.1732,a/k/a Sunrise Road,and BEING all of that 17.179 acre parcel
shown on the plat of survey entitled, "PROPERTY SURVEYED FOR HABITAT FOR
HUMANITY OF ORANGE COUNTY, INC.," by Terry L. Westendorf, Professional Land
Surveyor,dated January 14,2003, and filed of record in Plat Book 92-,Page 4, Orange County
Registry,to which plat reference is hereby made for a more particular description of the same.) Commented[MM1]:Confirm the correct original legal
description.
Commented[8G2R1]:Con'cct,this is the original
description
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EXHIBIT B
Lying in Orange County,North Carolina,and being more particularly described as follows:All of
Lots 35,36,41,and 42,Weavers Grove,Phase 1,as shown on a plat thereof recorded in Plat Book
127, Pages 89-95, Orange County Registry, AND all of Lots 67, 68, 71, 72, 73, 74, and 142,
Weavers Grove, Phase 2, as shown on a plat thereof recorded in Plat Book 128, Pages 14-17,
Orange County Registry,to which map reference is hereby made for a more particular description
of the same.) Commented[MM3]:Ensure legal description is correct. J
Commented[BG4R3]:Edits made to this description
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EXHIBIT C
Prepared by and return to: Margaret McConnell,Orange County Attorney's Office:
P.O.Box 8181;Hillsborough,NC 27278
AMENDMENT TO THE DECLARATION OF RESTRICTIVE COVENANTS
THIS AMENDMENT TO THE DECLARATION OF RESTRICTIVE COVENANTS
("Amendment"),dated ,is entered into by and between Habitat for Humanity,
Orange County, NC, Inc. ("Owner") and Orange County, North Carolina ("County"), for the
purpose of amending that certain Declaration of Restrictive Covenants recorded in Orange County
Records Book 2907, Page 155, Orange County Registry (the "Declaration"), to permit certain
dwelling units identified herein to be owned and operated as affordable rental housing subject to
the terms and conditions set forth herein.
RECITALS
WHEREAS,Habitat for Humanity of Orange County,NC,Inc.previously executed the
Declaration of Restrictive Covenants recorded in Orange County Records Book 2907,Page 155,
Orange County Registry,encumbering certain real property located on Sunrise Road in Chapel
Hill,Orange County,North Carolina(the"Property");
WHEREAS,the Declaration imposes certain affordability,occupancy,use,transfer,and
enforcement restrictions on the Property for the purpose of preserving affordable housing in
accordance with Orange County affordable housing objectives;
WHEREAS,Owner desires to convey a long-term leasehold interest in certain dwelling
units(a"conveyance")located within the Property,as more particularly described in Exhibit A
attached hereto and incorporated herein by reference(the"Subject Units"),to HOPE
COMMUNITIES LLC,a North Carolina limited liability company("HOPENC"),for the
purpose of operating the Subject Units as affordable rental housing for income-qualified tenants;
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WHEREAS,Owner and Orange County have entered into a Consent Agreement dated
,2026,approving the conveyance of the Subject Units,partially releasing
the Subject Units from the lien of the County Deed of Trust and Security Agreement recorded in
Book 2907,Page 169,Orange County Registry("Deed of Trust"),and authorizing amendment of
the Declaration to permit the Subject Units to be conveyed to HOPENC and used as affordable
rental housing subject to continued affordability restrictions;and
WHEREAS,the Owner and County desire to amend the Declaration solely as necessary
to permit the Subject Units to be owned and operated as affordable rental housing while
preserving the remaining terms and provisions of the Declaration.
NOW,THEREFORE,Owner and County hereby amend the Declaration as follows:
1. Amendment to Section 1(c). Notwithstanding the provisions of Section 1(c) of the
Declaration,the conveyance,ownership,and operation of the Subject Units as affordable rental
housing pursuant to this Amendment and the Consent Agreement referenced herein,including
the execution and recordation of any documents approved by Orange County in connection
therewith,shall not constitute a violation of this Section.
2. Amendment to Section 4 to allow for a Limited Exception.Notwithstanding Section 4 of
the Declaration,the conveyance of the Subject Units by Habitat to HOPENC pursuant to the
Consent Agreement shall not be subject to the transfer procedures,notice requirements,rights
of first refusal, owner-occupancy requirements, or equity-sharing provisions set forth in
Sections 4(A) and 4(B) of the Declaration, as long as HOPENC, its successors, and assigns
own and operate the Subject Units as affordable rental housing in compliance with this
Amendment.
The ownership and operation of the Subject Units as affordable rental housing in accordance
with this Amendment shall not constitute a violation of the Declaration.Nothing herein shall
be construed to release the Subject Units from the affordability restrictions contained in the
Declaration, as amended by this Amendment, or from the County's right to enforce such
restrictions.
In the event the Subject Units cease to be owned or operated in compliance with this
Amendment, the County may enforce the Declaration and this Amendment through any
remedies available thereunder or at law or in equity,and any subsequent transfer of the Subject
Units shall be subject to the provisions of Sections 4(A) and 4(B) of the Declaration unless
otherwise approved by the County.
3. Affordable Rental Restrictions Applicable to Subject Units.Notwithstanding any contrary
provision of the Declaration,the Subject Units may be owned and operated by HOPENC,Inc.,
or its successors and assigns,as long-term affordable rental housing.
a. Income requirements.The Subject Units shall be leased solely to households earning up
to eighty percent (80%) of the area median income, adjusted for household size, as
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published by the United States Department of Housing and Urban Development("HUD"),
at the time of tenant qualification. Rental rates, occupancy, and tenant eligibility for the
Subject Units shall comply with applicable affordability requirements imposed by Orange
County or other governmental funding sources applicable to the Subject Units.HOPENC
shall maintain records sufficient to demonstrate compliance with the income and
affordability requirements set forth herein and shall make such records available to the
County upon reasonable request.
b. Term.The income restrictions applicable to the Subject Units pursuant to this Amendment
shall remain in effect for the duration set forth in Section 2 of the Declaration and shall run
with the land and be binding upon HOPENC and any successors and assigns.
c. Enforcement. The County shall have the right to enforce the provisions of this
Amendment through any remedy available at law or in equity,including injunctive relief
and specific performance.Prior to exercising any enforcement remedy under this Section,
the County shall provide written notice of the alleged noncompliance and a reasonable
opportunity to cure, except in circumstances where immediate action is necessary to
prevent irreparable harm.
4. Ratification of Declaration.Except as expressly amended herein with respect to the Subject
Units,the Declaration shall remain unchanged and in full force and effect.
5. Severability.If any provision of this Amendment is determined invalid or unenforceable,the
remaining provisions shall remain in full force and effect.
6. Effective Date.This Amendment shall become effective upon recording in the Orange County
Registry.
IN WITNESS WHEREOF,the Parties have executed this Amendment as of the date first
written above.
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Orange County,North Carolina
By:
Travis Myren,Orange County Manager
NORTH CAROLINA
ORANGE COUNTY
I, Notary Public in and for the above named County and
State, do hereby certify that Travis Myren personally appeared before me this day and
acknowledged that he is the County Manager of Orange County, North Carolina, and that by
authority duly given and as the act of the County,the foregoing instrument was signed in its name
by him.
Witness my hand and notarial seal,this the day of 20_.
Notary Public
My commission expires:
Habitat for Humanity,Orange County,NC,Inc.
By:
,President,Habitat for Humanity of Orange County,Inc.
NORTH CAROLINA
ORANGE COUNTY
I, Notary Public in and for the above named County and
State,do hereby certify that personally appeared before me this day and
acknowledged that are the of Habitat for Humanity of Orange County,N.C.Inc.,
a North Carolina Non-Profit Corporation,and that by authority duly given and as the act of the
corporation,the foregoing instrument was signed in its name by its
Witness my hand and notarial seal,this the day of 20_.
Notary Public
My commission expires:
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Exhibit A
Subject Units Description
Lying in Orange County,North Carolina,and being more particularly described as follows:All of
Lots 35,36,41,and 42,Weavers Grove,Phase 1,as shown on a plat thereof recorded in Plat Book
127, Pages 89-95, Orange County Registry, AND all of Lots 67, 68, 71, 72, 73, 74, and 142,
Weavers Grove, Phase 2, as shown on a plat thereof recorded in Plat Book 128, Pages 14-17,
Orange County Registry,to which map reference is hereby made for a more particular description
of the same.
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Prepared by and return to: Margaret McConnell,Orange County Attorney's Office:
P.O.Box 8181;Hillsborough,NC 27278
AMENDMENT TO THE DECLARATION OF RESTRICTIVE COVENANTS
THIS AMENDMENT TO THE DECLARATION OF RESTRICTIVE COVENANTS
("Amendment"),dated ,is entered into by and between Habitat for Humanity,
Orange County, NC, Inc. ("Owner") and Orange County, North Carolina ("County"), for the
purpose of amending that certain Declaration of Restrictive Covenants recorded in Orange County
Records Book 2907, Page 155, Orange County Registry (the "Declaration"), to permit certain
dwelling units identified herein to be owned and operated as affordable rental housing subject to
the terms and conditions set forth herein.
RECITALS
WHEREAS,Habitat for Humanity of Orange County,NC,Inc.previously executed the
Declaration of Restrictive Covenants recorded in Orange County Records Book 2907,Page 155,
Orange County Registry,encumbering certain real property located on Sunrise Road in Chapel
Hill,Orange County,North Carolina(the"Property");
WHEREAS,the Declaration imposes certain affordability,occupancy,use,transfer,and
enforcement restrictions on the Property for the purpose of preserving affordable housing in
accordance with Orange County affordable housing objectives;
WHEREAS,Owner desires to convey a long-term leasehold interest in certain dwelling
units(a"conveyance")located within the Property,as more particularly described in Exhibit A
attached hereto and incorporated herein by reference(the"Subject Units"),to HOPE
COMMUNITIES LLC,a North Carolina limited liability("HOPENC"),for the purpose of
operating the Subject Units as affordable rental housing for income-qualified tenants;
WHEREAS,Owner and Orange County have entered into a Consent Agreement dated
,2026,approving the conveyance of the Subject Units,partially releasing
the Subject Units from the lien of the County Deed of Trust and Security Agreement recorded in
Book 2907,Page 169,Orange County Registry("Deed of Trust"),and authorizing amendment of
the Declaration to permit the Subject Units to be conveyed to HOPENC and used as affordable
rental housing subject to continued affordability restrictions;and
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WHEREAS,the Owner and County desire to amend the Declaration solely as necessary
to permit the Subject Units to be owned and operated as affordable rental housing while
preserving the remaining terms and provisions of the Declaration.
NOW,THEREFORE,Owner and County hereby amend the Declaration as follows:
1. Amendment to Section 1(c). Notwithstanding the provisions of Section 1(c) of the
Declaration,the conveyance,ownership,and operation of the Subject Units as affordable rental
housing pursuant to this Amendment and the Consent Agreement referenced herein,including
the execution and recordation of any documents approved by Orange County in connection
therewith,shall not constitute a violation of this Section.
2. Amendment to Section 4 to allow for a Limited Exception.Notwithstanding Section 4 of
the Declaration,the conveyance of the Subject Units by Habitat to HOPENC pursuant to the
Consent Agreement shall not be subject to the transfer procedures,notice requirements,rights
of first refusal, owner-occupancy requirements, or equity-sharing provisions set forth in
Sections 4(A) and 4(B)of the Declaration, as long as HOPENC,its successors, and assigns
own and operate the Subject Units as affordable rental housing in compliance with this
Amendment.
The ownership and operation of the Subject Units as affordable rental housing in accordance
with this Amendment shall not constitute a violation of the Declaration.Nothing herein shall
be construed to release the Subject Units from the affordability restrictions contained in the
Declaration, as amended by this Amendment, or from the County's right to enforce such
restrictions.
In the event the Subject Units cease to be owned or operated in compliance with this
Amendment, the County may enforce the Declaration and this Amendment through any
remedies available thereunder or at law or in equity,and any subsequent transfer of the Subject
Units shall be subject to the provisions of Sections 4(A) and 4(B) of the Declaration unless
otherwise approved by the County.
3. Affordable Rental Restrictions Applicable to Subject Units.Notwithstanding any contrary
provision of the Declaration,the Subject Units may be owned and operated by HOPENC,Inc.,
or its successors and assigns,as long-term affordable rental housing.
a. Income requirements.The Subject Units shall be leased solely to households earning up
to eighty percent (80%) of the area median income, adjusted for household size, as
published by the United States Department of Housing and Urban Development
at the time of tenant qualification. Rental rates, occupancy, and tenant eligibility for the
Subject Units shall comply with applicable affordability requirements imposed by Orange
County or other governmental funding sources applicable to the Subject Units.HOPENC
shall maintain records sufficient to demonstrate compliance with the income and
affordability requirements set forth herein and shall make such records available to the
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County upon reasonable request.
b. Term.The income restrictions applicable to the Subject Units pursuant to this Amendment
shall remain in effect for the duration set forth in Section 2 of the Declaration and shall run
with the land and be binding upon HOPENC and any successors and assigns.
c. Enforcement. The County shall have the right to enforce the provisions of this
Amendment through any remedy available at law or in equity,including injunctive relief
and specific performance.Prior to exercising any enforcement remedy under this Section,
the County shall provide written notice of the alleged noncompliance and a reasonable
opportunity to cure, except in circumstances where immediate action is necessary to
prevent irreparable harm.
4. Ratification of Declaration.Except as expressly amended herein with respect to the Subject
Units,the Declaration shall remain unchanged and in full force and effect.
5. Severability.If any provision of this Amendment is determined invalid or unenforceable,the
remaining provisions shall remain in full force and effect.
6. Effective Date.This Amendment shall become effective upon recording in the Orange County
Registry.
IN WITNESS WHEREOF,the Parties have executed this Amendment as of the date first
written above.
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Orange County,North Carolina
By:
Travis Myren,Orange County Manager
NORTH CAROLINA
ORANGE COUNTY
I, Notary Public in and for the above named County and
State, do hereby certify that Travis Myren personally appeared before me this day and
acknowledged that he is the County Manager of Orange County, North Carolina, and that by
authority duly given and as the act of the County,the foregoing instrument was signed in its name
by him.
Witness my hand and notarial seal,this the day of 20.
Notary Public
My commission expires:
Habitat for Humanity,Orange County,NC,Inc.
By:
Grace Johnston,President,Habitat for Humanity of Orange County,Inc
NORTH CAROLINA
ORANGE COUNTY
I, Notary Public in and for the above named County and
State,do hereby certify that personally appeared before me this day and
acknowledged that Grace Johnston is the President of Habitat for Humanity of Orange County,
N.C.Inc.,a North Carolina Non-Profit Corporation,and that by authority duly given and as the
act of the corporation,the foregoing instrument was signed in its name by its President.
Witness my hand and notarial seal,this the day of 20.
Notary Public
My commission expires:
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Exhibit A
Subject Units Description
Lying in Orange County,North Carolina,and being more particularly described as follows:All of
Lots 35,36,41,and 42,Weavers Grove,Phase 1,as shown on a plat thereof recorded in Plat Book
127, Pages 89-95, Orange County Registry, AND all of Lots 67, 68, 71, 72, 73, 74, and 142,
Weavers Grove, Phase 2, as shown on a plat thereof recorded in Plat Book 128, Pages 14-17,
Orange County Registry,to which map reference is hereby made for a more particular description
of the same.l Commented[MM1]:Ensure legal description is correct.
! Commented[BG21111]:Edits made to this description
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Prepared by and return after recording to: Margaret McConnell,Orange County Attorney's Office,P.O.
Box 8181,Hillsborough,North Carolina 27278
PIN: 9890-06-5926
NORTH CAROLINA
PARTIAL RELEASE DEED
ORANGE COUNTY
THIS PARTIAL RELEASE DEED,made and entered into this the day of
12026,by and between JOHN ROBERTS, Trustee, and ORANGE COUNTY,
hereinafter Noteholder, party of the first part, to HABITAT FOR HUMANITY, ORANGE
COUNTY,NC, INC., hereinafter Borrower,party of the second part.
WITNESSETH
WHEREAS, Borrower has heretofore executed and delivered to Trustee for the benefit
of Noteholder, a Deed of Trust and Security Agreement dated February 27, 2003, and recorded
February 28, 2003, in Book 2907, Page 169, Orange County Registry(the "Deed of Trust")
respecting certain real property in Orange County,North Carolina and securing certain
indebtedness, all as fully set forth in the Deed of Trust; and
WHEREAS, Borrower has requested Noteholder to release from the lien of aforesaid
Deed of Trust so much of the land therein conveyed as is hereinafter described which is more
fully described on Exhibit A hereof from the lien and operation thereof, and Noteholder has
agreed and has requested Trustee to join in said release.
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NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) paid,
the receipt of which is hereby acknowledged and in consideration of the premises and for other
good and valuable consideration,Noteholder and Trustee have remised and released and by these
presents do remise, release, and forever quitclaim unto Borrower, its successors and assigns, all
that certain lot or parcel of land located in Orange County,North Carolina, and more particularly
described on Exhibit A attached hereto and incorporated herein by reference.
TO HAVE AND TO HOLD the aforesaid tract or parcel of land to it, the party of the
second part, its successors and assigns, free and discharged from the lien of said Deed of Trust as
recorded in Book 2907, Page 169, Orange County Registry.
This release shall apply only to the property described on Exhibit A, attached hereto and
incorporated herein by reference. The remainder of the property encumbered by the Deed of
Trust shall remain subject to the lien of the Deed of Trust unless previously released therefrom,
and the Deed of Trust shall otherwise remain in full force and effect. Nothing contained herein
shall be deemed to release Borrower from any obligations secured by the Deed of Trust or
arising under the Promissory Note, Development Agreement, or Declaration of Restrictive
Covenants as amended.
IN WITNESS WHEREOF,the Trustee and Noteholder,intending to be legally bound,have
set their hands on this the day of , 2026.
ORANGE COUNTY JOHN ROBERTS
Noteholder Trustee
By:
Travis Myren, County Manager
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NORTH CAROLINA
ORANGE COUNTY
I, , a Notary Public of the County and State aforesaid, certify that
Travis Myren personally came before me this day and acknowledged that he is the County
Manager for Orange County,North Carolina and that by authority duly given and as the act of said
County, he signed the foregoing instrument in its name for the purposes herein expressed.
Witness my hand and official stamp or seal, this the day of , 2026.
Notary Public
My commission expires:
NORTH CAROLINA
ORANGE COUNTY
I, , a Notary Public of the County and State aforesaid, certify that
John Roberts, Trustee, personally came before me this day and acknowledged due execution of
the foregoing instrument.
Witness my hand and official stamp or seal, this the day of , 20
Notary Public
My commission expires:
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EXHIBIT A
Lying in Orange County,North Carolina, and being more particularly described as follows: All of
Lots 35, 36,41, and 42,Weavers Grove,Phase 1, as shown on a plat thereof recorded in Plat Book
127, Pages 89-95, Orange County Registry, AND all of Lots 67, 68, 71, 72, 73, 74, and 142,
Weavers Grove, Phase 2, as shown on a plat thereof recorded in Plat Book 128, Pages 14-17,
Orange County Registry, to which map reference is hereby made for a more particular description
of the same.
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Prepared by and return after recording to: Margaret McConnell,Orange County Attorney's Office,
P.O.Box 8181,Hillsborough,NC 27278
STATE OF NORTH CAROLINA )
) APPOINTMENT OF
COUNTY OF ORANGE ) SUBSTITUTE TRUSTEE
THIS APPOINTMENT OF SUBSTITUTE TRUSTEE made and entered into this the
day of , 2026, by Orange County, North Carolina("Lender").
WITNESSETH:
WHEREAS, on the 27th day of February, 2003, Habitat for Humanity of Orange
County, N.C., Inc. executed a Deed of Trust and Security Agreement to Geoffrey E.
Gledhill, Trustee, for the benefit of Orange County,North Carolina, which Deed of Trust
is recorded in Book 2907, Page 169, Orange County Registry; and
WHEREAS, Orange County is the beneficiary and secured party under the Deed
of Trust and desires to appoint a substitute trustee pursuant to Section 8 of the Deed of
Trust and N.C. Gen. Stat. § 45-10;
WHEREAS, the aforementioned Deed of Trust provides that the Lender shall
have the right to remove the Trustee without notice or cause if they so desire and to
appoint, in writing, a successor trustee to take the place of the Trustee; and upon probate
and registration of the writing, the trustee shall be appointed to succeed to all the rights,
powers and duties of the Trustee.
NOW, THEREFORE, pursuant to the foregoing and pursuant to the provisions
of said deed of trust and N.C. Gen. Stat. § 45-10, Orange County hereby removes
Geoffrey Gledhill as Trustee in said deed of trust, and names, designates, and appoints
John Roberts, County Attorney, as substitute trustee, in said Deed of Trust, to do and
perform the duties set forth in and under said deed of trust, and as substitute trustee, John
Roberts is hereby authorized, empowered, and charged with all the duties and powers
conferred upon the trustee named in said deed of trust in all respects as if John Roberts
had been originally named therein. Such appointment is effective immediately upon
recordation of this instrument.
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IN WITNESS WHEREOF, Orange County has caused this Appointment of Substitute
Trustee to be duly executed on the day and year first written above.
ORANGE COUNTY
BY:
Travis Myren
Orange County Manager
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
I, , a Notary Public of Orange County, certify
that Travis Myren personally appeared before me this day and acknowledged that he is
the County Manager of Orange County and that by authority duly given and as the act of
Orange County, he signed the foregoing instrument on behalf of the County.
Witness my hand and notarial seal this the day of , 2026.
Notary Public
My Commission Expires: