Appendix 20
DECLARATION OF RESTRICTIVE COVENANTS
NEIGHBORHOOD STABILIZATION PROGRAM
THIS DECLARATION OF RESTRICTIVE COVENANTS dated
, 2010
(the “Restrictive Covenants”), by and between
, whose
address
is
_____________________________________________(the
“Homeowners”),
the
_____________________________________whose address is
(the “Subrecipient”), and the WEST VIRGINIA DEVELOPMENT OFFICE, whose address
is 1900 Kanawha Boulevard East, Charleston, WV 25305-0311 (the “Grantee”).
WITNESS
RETURN TO:
Lew G. Tyree, House Counsel
West Virginia Housing Development Fund
814 Virginia Street, East
Charleston, WV 25301
WHEREAS, the Subrecipient owns certain real property with an address of
, as more particularly described in Exhibit A which is
attached hereto and made a part hereof by this reference (the “Property”); and
WHEREAS, the Grantee has received certain funds from the U.S. Department of Housing and
Urban Development (HUD) under Title I of the Housing and Community Development Act of 1974, as
amended (hereinafter referred to as “Community Development Act”) for utilization in connection with its
Neighborhood Stabilization Program (the “NSP”), as authorized pursuant to Title III of Division B of the
Housing and Economic Recovery Act of 2009 (HERA); and
WHEREAS, the purpose of the NSP is to assist in the redevelopment of abandoned and
foreclosed homes under the Emergency Assistance for Redevelopment of Abandoned and Foreclosed
Homes. Unless HERA states otherwise, the grants are to be considered Community Development Block
Grant (CDBG) funds with HOME features. HERA has authorized alternative requirements to provisions
under Title I of the Housing and Community Development Act of 1974, as amended (the HCD Act),
except for requirements related to fair housing, nondiscrimination, labor standards, and the environmental
clearance (including lead-based paint), in accordance with the terms of Section 2301 of HERA and for the
sole purpose of expediting the use of grant funds. This agreement between the two parties will define the
roles for implementing the goals in executing the NSP; and
WHEREAS, as a condition of participating in the NSP and receiving funds from the Grantee
thereunder, the Subrecipient and Homeowner jointly agree to encumber the Property to ensure that the
Property will be used as affordable housing in compliance with the affordability restrictions contained
herein and in the NSP Regulations.
NOW, THEREFORE, in consideration of the Subrecipient’s participation in the NSP, the
Subrecipient’s receipt of funds from the Grantee and the use of those funds for the benefit of the
Homeowner and of the premises and the agreements contained in these Restrictive Covenants, the
Subrecipient, Homeowner and the Grantee hereby agree as follows.
1. Use. The Property shall be used solely for rental residential purposes by households
qualifying as low-income families pursuant to the NSP Regulations and for no other purpose.
2. Rent Limitation. Rent charged for the Property shall be limited to rents permitted by the
NSP Regulations and any written agreement between the parties hereto.
Restrictive Covenants for Homeowners
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(SUBRECIPIENT/DEVELOPER)
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3. Prohibition of Discrimination. The Subrecipient shall not discriminate against or refuse
to lease the Property to tenants or prospective tenants on the basis of their receipt of, or eligibility for, a
certificate of family participation, or a rental voucher, or a comparable document evidencing participation
in a NSP tenant-based assistance program.
4.
Term. The term of these Restrictive Covenants shall be ____ (___) years beginning on
the date hereof (the “Affordability Period”). The Sub-recipient shall comply with the affordability
requirements set forth at Title 24, Part 92, Section 252 for a period of * (*) years from the date of the
completion of the Project. The Affordability Requirements shall apply without regard to the term of the
mortgage or the transfer of ownership. The Affordability Requirements shall be a covenant running with the
land or other mechanism approved by the Grantee and shall be binding upon and inure to the benefit of the
successors and assigns of the Grantee. Failure to comply with the Affordability Requirements shall represent
a default under the terms of this Agreement. As a recipient of the NSP Grant from the Grantee, the Subrecipient will ensure continued affordability for NSP-assisted housing by the use of a this enforceable
recorded lien against the Project property for the maximum extent practicable and longest feasible term in
order that the Project property that is assisted with NSP Grant funds will remain affordable to individuals
or families whose incomes do not exceed 120% of the AMI or, for units originally assisted with NSP
Grant Funds that meet the 25% set-aside will remain affordable to individuals and families whose
incomes do not exceed 50% AMI. As a recipient of the NSP Grant from the Grantee, the Sub-recipient is
subject to recapture restrictions under the Act and the NSP Grant is subject to repayment to the Grantee if
the Sub-recipients’ Project does not meet the affordability requirements during the minimum affordability
requirement periods set out below:
The minimum period of affordability requirements for the NSP Grant are:
Rental Projects
NSP Subsidy per Unit
Affordability Period
Less than $15,000
5 years
$15,000 - $40,000
10 years
More than $40,000
15 years
Acquisition of Building of New Construction
Unit
20 years
These are minimum requirements. The Grantee or Sub-recipient may propose to implement more
stringent affordability requirements than the minimum listed above to ensure that the properties remain
affordable for as long as possible.
5. Covenant Running with the Land. These Restrictive Covenants shall run with the land
and shall be binding upon the Property, the Subrecipient and the Subrecipient’s successors, successors in
interest, successors in title and permitted assigns and shall inure to the benefit of the Subrecipient and the
Subrecipient’s successors, successors in interest, successors in title and permitted assigns.
6. Severability. The invalidity of any clause, part or provision of these Restrictive Covenants
shall not affect the validity of the remaining portions hereof.
7. Notices. Unless otherwise set forth herein, all notices given pursuant to these Restrictive
Covenants shall be deemed given to the Subrecipient when mailed, and to the Grantee when received. All
notices hereunder shall be sent by certified or registered mail, postage prepaid, return receipt requested, to
the parties at the addresses set forth above or to such different address or addresses as either party may
notify the other from time to time in writing.
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8. Amendment. The Subrecipient shall take all actions deemed necessary by the Grantee to
amend these Restrictive Covenants to comply with the NSP Regulations and all other applicable federal,
State or local laws, statutes, ordinances, codes, and rules or regulations as the same may be amended from
time to time.
9. Compliance with Applicable Laws. The Subrecipient shall comply with all NSP
Regulations and all other applicable federal, State or local laws, statutes, ordinances, codes, and rules or
regulations as the same may be amended from time to time.
10. Governing Law. These Restrictive Covenants shall be governed by the laws of the State
of West Virginia and, where applicable, laws of the United States of America.
11. Recovery of Attorney’s Fees. In the event the Grantee incurs legal fees or other expenses
in enforcing these Restrictive Covenants, the Subrecipient shall reimburse the Grantee for all such fees
and expenses within ten (10) days of receipt of written demand therefor. All fees and expenses not so
paid shall become a lien upon the Property.
12. Assignment. The Subrecipient’s obligations hereunder shall not be assigned without the
express written consent of the Grantee, which consent may be withheld at the Grantee’s sole discretion.
13. Definitions. All terms not otherwise defined herein shall have the meaning ascribed to
them in the NSP Regulations.
IN WITNESS WHEREOF, the parties hereto, by their respective duly authorized
representatives, have executed these Restrictive Covenants as of the date above written.
WEST VIRGINIA DEVELOPMENT OFFICE
By:
Its:
Kelley Goes
Executive Director
*Subrecipient, a not-for-profit West Virginia
corporation
By:
Its:
*
*
Homeowner
By:
Its:
Restrictive Covenants for Homeowners
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*
*
(SUBRECIPIENT/DEVELOPER)
(COUNTY)
NSP
May 18, 2010
Appendix 20
STATE OF WEST VIRGINIA,
COUNTY OF KANAWHA, TO-WIT:
The foregoing instrument was acknowledged before me this _____ day of *, 2010, by Kelley Goes,
Executive Director of the West Virginia Development Office, a public body instrumentality of the State of
West Virginia, on behalf of said public body corporate.
My commission expires
NOTARY PUBLIC
STATE OF WEST VIRGINIA,
COUNTY OF *, TO-WIT:
The foregoing instrument was acknowledged before me this _____ day of *, 2010, by *, * of *, a
not-for-profit West Virginia corporation, on behalf of said corporation.
My commission expires
NOTARY PUBLIC
STATE OF WEST VIRGINIA,
COUNTY OF *, TO-WIT:
The foregoing instrument was acknowledged before me this _____ day of *, 2010, by *, * of *, a
not-for-profit West Virginia corporation, on behalf of said corporation.
My commission expires
NOTARY PUBLIC
Restrictive Covenants for Homeowners
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Appendix 20
EXHIBIT A
Restrictive Covenants for Homeowners
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(SUBRECIPIENT/DEVELOPER)
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NSP
May 18, 2010