HomeMy WebLinkAbout1997-156 Resale Restr - Barber PROMISSORY NOTE
SECURED BY DEED OF TRUST
4,409.38 Ashland, Oregon, 6-[0-97 ,/t9~6/
For value received, I promise to pay to the order of the City of Ashland, Oregon,
("City"), at City Hall or such other place as the City may designate, the principal sum
of FOUR THOUSAND FOUR HUNDRED NINE AND 38/100 ($4,409.38 ), plus
accrued interest, upon the terms and conditions set forth below.
1. AFF_ORDABLE HOUSING AGREEMENT. This obligation is secured by a Trust
Deed and is subject to all the terms and conditions of such Trust Deed, This
obligation is given pursuant to a "CITY OF ASHLAND AFFORDABLE HOUSING
RESALE RESTRICTION AGREEMENT (SDCs ONLY)" and is subject to all the terms
and conditions of such agreement (further referred to in this note as "the Agreement").
The promisor shall have the right to prepay all or any portion of the unpaid principal of
this note without penalty. However, any payments shall be applied first to
accumulated interest and then to principal.
2. INTERI=ST, The unpaid principal balance of this note shall bear simple interest at
the rate of six percent (6.0%) per year from the date of this note until paid.
3. REPAYMENT.
3,1, During the first 20 years after this note is executed, no payments of either
principal or interest shall be due or payable so long as I continue to own and occupy
the home as my prima~y residence, and so long as I am not in violation of any of the
terms of this note or the trust deed securing it, As set forth in the Agreement, I may
also make a qualified transfer of the home to an eligible buyer who shall assume this
note without violating the terms of this note.
3,2. During the first 20 years after this note is executed, the total amount of the
principal and accrued interest shall become immediately due and payable in full upon
my transfer of the home to any person or entity other than an eligible buyer as defined
in the Agreement or to an othen~ise eligible buyer who does not assume this note and
the trust deed securing it and agree to comply with all of its terms, or whenever I
cease to occupy the home as my primary residence, or whenever I am in default for
failure to c~mply with any of the terms of this note or the trust deed. At the end of 20
years following the date of execution of this note, if I am at that time the owner and
occupier of the home and am not in default under any terms of this note or the trust
deed, this note and my obligation to pay the principal and accrued interest shall be
cancelled and forgiven by the City.
4. BINDING EFFFCT: JOINT AND S~ERAL OBLIGATIONS, This note and its terms
shall be binding upon my heirs, executors, administrators, personal representatives,
successors, and assigns, Throughout this note, the terms "1," "me," and "my" refer
PAGE i of 2-Promissory Note
individually and collectively to all persons who sign this note, and all persons signing
this note shall be jointly and severally liable for its obligatlons.
5. ATTORNFY FEES AND COSTS. If either party is required to initiate legal
proceedings to enforce its rights under this Agreement, the prevailing party in such
action shall be entitled to an award of reasonable attorneys' fees and costs in addition
to any other recovery under this Agreement.
11. SEVERABILITY: GOVERNING LAW, If any provision of this note is or becomes
inconsistent with any applicable present or future law, rule or regulation, such
provision will be deemed rescinded or modified in order to comply with the relevant
law rule or regulation, and all other provisions of this note shall continue in full force
and effect. This note shall be governed by and interpreted under the laws of the State
of Oregon,
14. NO WAIVER, Failure by the City to require strict performance of any term of
this note, including the extension of any payment or acceptance of any part of a
payment, shall not affect the City's rights or be considered a waiver by the City of the
strict performance of all conditions of this note. No waivgr by the City of any default
shall be considered a waiver of any subsequent default or a waiver of this paragraph.
EXECUTED this/~:)7c~, day of,
NOTICE TO BUYER: THIS DOCUMENT CONTAINS PROVISIONS RESTRICTING
RESALES AND ASSUMPTIONS,
Printed Name
Signature
Printed Name
PAGE 2 of 2-Promissory Note
CITY OF ASHLAND AFFORDABLE HOUSING
RESALE RESTRICTION AGREEMENT (SDCs ONLY)
Owner: DIERDRE BARBER
Property Address: 261 VILLAGE PARK DR,
ASHLAND OR 97520
Agreement date: June 10, 1997
Purchase Price: $112,526.00
Name of development: ASHLAND VILT__~GE Date of Purchase: JUNE 11, 1997
Recording Requested by:
When Recorded Return to:
City of Ashland
Affordable Housing Coordinator, City of Ashland,
20 E. Main Street, Ashland, Oregon 97520
Agreement entered into on the date specified above by the City of Ashland ("City") and
the Owner (also referred to as "You") named above regarding certain improved real
property located at the property address specified above ('the home").
RECITALS:
A. The home referred to in this agreement is described more fully on the
attached Exhibit A.
B. The home is being made available for purchase by an eligible
moderate-income purchaser pursuant to the City's Affordable Housing Program
("Program"). The Owner is an eligible moderate-income purchaser under the Program
and intends to live in the home as an owner-occupant
C. The Owner recognizes that in purchasing the home, the Owner is receiving
the benefits of the City's assistance to the developer of the property upon which the
home is located, and that without such assistance the Owner would not have been
able to purchase the home. The Owner understands that signing this Agreement and
complying with its terms are necessary to permit the City to fulfill its affordable housing
goals.
City and Owner agree:
1. Occupancy Requirement. You agree and acknowledge that the City's
acceptance of your participation in the Program and purchase of the home is
conditioned upon your continuing occupancy of the home. For purposes of this
agreement, continuing occupancy includes renting of the home by the Owner to
others if you have established a temporary residence outside Jackson County,
Oregon. Any such rental, however, shall not exceed 24 months in any five year
period.
PAGE 1-RESALE RESTRICTION AGREEMENT (p:planning\aff-sdc.fl~(December28, 1993)
2. Deferment of Systems Development Charges (SDCs). City will defer the
payment of SDCs owed by you and due on the home. You will execute a promissory
note payable to City in a principal amount equal to the total cost of the SDCs that
have been deferred. The note and the obligations under this Agreement will be
secured by a trust deed on the home,
3. SDCs DUe Upon Transfer of Home. Except as provided in paragraph 4, you
agree to pay to the City when you "transfer" the home any amount due from the
promissory note referred to in paragraph 2.
3.1. Definition of transfer. To "transfer" the home means any sale, assignment
or transfer, whether voluntary or involuntary, of any interest in the home, including, but
not limited to, a fee simple interest, a co-tenancy interest, a survivorship interest, a life
estate, a leasehold interest (except as provided in paragraph 1), any right to
possession under a rental agreement (except as provided in paragraph 1), or an
interest evidenced by a mortgage, trust deed or land sale contract in which
possession of the home is transferred and you retain title.
3.2. Assumption requirement. This agreement shall'apply to and bind any
purchaser or transferee in an exempt or qualified transfer (see paragraph 4). Such
purchaser or transferee shall assume your duties and obligations under this
Agreement in writing, or sign an agreement substantially similar to this Agreement,
prior to the transfer of the home. If the purchaser or transferee fails to assume this
Agreement or execute and deliver a substantially similar agreement to the City prior to
the sale or transfer, then you shall pay any amount due from the promissory note
referred to in paragraph 2.
Recording of the assumption agreement in the official records of Jackson County,
Oregon, shall be a condition of the City's approval of the proposed transfer. You
agree to pay a reasonable assumption fee to the City and to reimburse the City for its
expenses incurred in administering its rights and obligations in connection with any
transfer under this Agreement. Upon the close of any transfer, you agree to provide
the City with copies of the recorded trust deed, final sales contract, settlement
statement, escrow instructions, and any other documents prepared or used in
connection with the transaction.
4. Exempt and Qualified Transfers. No amount shall be due under paragraph 3,
however, if the transfer is either an "exempt transfer" or a "qualified transfer" as
provided in this paragraph:
4.1. Exempt transfer. An "exempt transfer" is:
4.1.1. A transfer by gift or inheritance to your spouse or children;
4.1.2. A taking of title by a surviving joint tenant; a court-ordered transfer
of title to a spouse as part of a dissolution proceeding; or an acquisition of title,
or of any interest in the title, in conjunction with marriage.
PAGE 2-RESALE RESTRICTION AGREEMENT (p:planning\aff-sdc.fk)(Decernbe~28, 1993]
4.1.3. A refinancing of the existing purchase money first mortgage or
trust deed encumbering the home by securing a new first mortgage or trust
deed on the home in an amount not greater than the then present balance of
the first mortgage or trust deed plus applicable loan fees and closing costs. An
exempt transfer also includes a home equity loan secured by a third mortgage
or trust deed on the home, which shall be subordinate to this note and the trust
deed securing it provided that the proceeds of such home equity loan shall only
be used for improvements to the home, including landscaping.
4.2. Qualified transfer. A "qualified transfer" is a transfer to an eligible buyer for
a sales price that does not exceed the affordable housing purchase price as
determined by Ashland City Council Resolution number 93-39 including amendments,
if any. A qualified transfer must also meet the requirements set forth in this paragraph.
At least 30 days prior to the transfer, you shall provide the following information to the
City:
4.2.1. The name, address and telephone number of the proposed buyer;
4.2.2. A financial statement signed by the proposed buyer and his or her
spouse, if any, in a form acceptable by the City and accompanied by such
supporting documentation as requested by the City. The financial information
shall be used by the City to determine the income eligibility of the proposed
buyer. To be an eligible buyer, a buyer shall certify that he or she will occupy
the home as his or her principal home. The buyer and all other members of the
buyer's household shall meet the income guidelines established from time to
time by the City for participation in its affordable housing program.
4.2.3. A copy of the proposed sales agreement and all related
documents, which set forth the terms of the transfer;
4.2.4. A written certification signed by the proposed buyer and you in a
form acceptable to the City stating that:
4.2.5. The transfer shall be closed in accordance with the terms of the
sales agreement and other documents submitted and approved by the City;
4.2.6. Neither the proposed buyer nor any other party has paid or will
pay to you or for your benefit, and you have not received nor will you receive
from the proposed buyer or any other party, either directly or indirectly or for
your benefit, money or any other consideration in addition to what is set forth in
the sales agreement and related documents;
4.2.7. In the event that a transfer is made in violation of the terms of this
agreement, or that false or misleading statements are made in any documents
or certifications submitted to the City, the City shall have the right to file a legal
action to force the parties to terminate or rescind the sales agreement, or to
PAGE 3-RESALE RESTRICTION AGREEMENT
declare the sale void notwithstanding the fact that the sale may have closed and
become final as between the buyer and you.
5. You Must Notify City of Transfer. If you desire to transfer the home, you are
required to notify City in writing to that effect. If the transfer is a qualified transfer, the
notice and information provided must comply with paragraph 4.2. For any other
transfer the notice shall state the street address of the home, your full name or names,
the address and telephone number at which you are to be contacted if not at the
home. The notice shall be given at least 30 days prior to the transfer and shall be
delivered as provided in paragraph 9.
6. Priority and Effectiveness of this Agreement. This Agreement, or a
memorandum of this agreement, shall be filed for recordation in the County Clerk
deed records, Jackson County, Oregon prior to any sale, conveyance, transfer or
other disposition of the home, or of any estate or interest in the home, by you. The
Agreement shall have priority over any subsequent sale, conveyance, transfer, lease or
other disposition or encumbrance of the home, or of any estate or interest in the
home.
7. Term of Agreement. The restrictions contained in this Agreement shall continue
for a period of 20 years from the date of this Agreement.
8. Survival of Agreement Upon Transfer. The City's rights under this Agreement
shall survive any transfer of the home by you.
9. Notices. Except as otherwise specified in this Agreement, all notices required to
be sent pursuant to this Agreement shall be made by personal delivery or by deposit
in the United States mail, first class postage prepaid, and shall be deemed to have
been delivered and received on the date of personal delivery or five days after deposit
in the mail, if sent to the following addresses:
City:
Affordable Housing Coordinator
City of Ashland
20 E. Main Street
Ashland, Oregon 97520
OWNER: at the address of the home
The addresses above may be changed by notice given pursuant to this paragraph.
10. Waiver. No condition of this agreement or of the note or trust deed shall be
deemed waived unless expressly waived in writing by City.
11. Default. A default shall occur if you fail to perform or observe any of the
provisions of this agreement, the note or trust deed. If any default occurs, City may,
at its option, declare the entire unpaid balance of principal and accrued interest on the
PAGE 4-RESALE RESTRICTION AGREEMENT
note immediately due and payable and enforce any of the remedies set forth in the
trust deed.
12. Binding Effect. Throughout this Agreement, the terms "Owner" and "you" refer
individually and collectively to all persons who sign this Agreement and all persons
signing this Agreement shall be jointly and severally liable for its obligations.
13. Attorneys' fees. If either party is required to initiate legal proceedings to enforce
its rights under this Agreement, the prevailing party in such action shall be entitled to
an award of reasonable attorneys' fees and costs in addition to any other recovery
under this Agreement.
OWNER:
CITY OF ASHLAND:
State of Oregon
County of Jackson
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PAGE 5-RESALE RESTRICTION AGREEMENT
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TRUST DEED
This trust deed is made on June 10, 1997 1996, between DEIRDRE BARBER
, as Grantor(s), the City of
Ashland, as Beneficiary, and Paul Nolte, an active member of the Oregon State Bar as
Trustee.
1, Conveyance by Grantor. For good and valuable consideration, receipt of which is
acknowledged, and for the purpose of securing the loan obligations described in
Section 3 below, Grantor irrevocably grants, bargains, sells, conveys, assigns, and
transfers to Trustee in trust for the benefit and security of the Beneficiary, with power
of sale and right of entry and possession, all of Grantor's right, title, and interest in and
to the real property located in Jackson County, State of Oregon, and more particularly
described in the attached Exhibit A (the "Property"),
2. The Note. Beneficiary has offered to defer the systems development charges due
on the Property and to make a loan to Grantor for the amount of the charges which
loan iS to be evidenced by a promissory note of the same date as this trust deed.
(The promissory note as modified, supplemented, extended, renewed, or replaced
from time to time is referred to below as the "Note".) The date of maturity of the debt
secured by this instrument is 20 years from the date of the Note. in the event the
Property, or any part of, or interest in, the Property is sold, agreed to be sold,
conveyed, assigned or alienated by the Grantor without complying with the terms of
the Note or the Agreement described below, then, at the Beneficiary's option, all
obligations secured by this instrument, irrespective of the maturity dates expressed
above or in the Note, shall immediately become due and payable.
3. Obligations Secured, This trust deed secures the following, collectively referred
to as the "loan obligations":
3.1. The payment of all indebtedness, including but not limited to principal and
interest, and the performance of all covenants and obligations of Grantor under the
Note, whether such payment and performance is now due or becomes due in the
future;
3.2. The payment and performance of all covenants and obligations in the City
of Ashland Affordable Housing Resale Restriction Agreement (SDCs Only) dated
June 10, 1997 ("the Agreement") entered into by Grantor and Beneficiary. The term
"loan obligations" as used in this trust deed shall mean all amounts payable to
Beneficiary under the terms of the Note and the Agreement,
4. Possession. Grantor agrees to pay the Note and the Agreement in accordance
with their terms. Until default occurs, Grantor shall remain in possession and control
of the property and subject to the terms of the Agreement, Grantor shall be free to
operate and manage the property and receive the proceeds of operation.
PAGE 1-TRUST DEED
5. Warranty of title, Grantor warrants that Grantor holds merchantable title to the
property in fee simple or that Grantor holds a vandee's interest in the property under a
conditional sales contract. Grantor warrants and will defend Grantor's title against the
tawful claims of all persons. In the event any action or proceeding is commenced that
questions Grantor's title or the interest of Beneficiary or Trustee under this deed,
Grantor shall defend the action at Grantor's expense.
6, Powers of Trustee. In addition to all powers of Trustee arising as a matter of law,
Trustee shall have the power to take the following action with respect to the property
on the request of Beneficiary and Grantor: (a) joining in the dedication of roads or
other rights in the public; (b) Joining in granting any easement or creating any
restriction on the property; (c) joining in any subordination or other agreement
affecting this deed or the interest of Beneficiary under this deed; or (d) selling the
property or any part thereof. Trustee shall not be obligated to notify any other party of
a pending sale under any other deed or trust or lien, or of any action or proceeding in
which Grantor, Beneficiary, or Trustee shall be a party, unless the action or
proceeding is brought by Trustee,
7. Deed of Reconveyartce. If Grantor pays all of the loan obligations when due and
otherwise performs all of the obligations imposed on Grantor under this instrument, the
Note and the Agreement, Beneficiary shall execute and deliver to Trustee a request for
full reconveyance.
8. Default. Grantor shall be deemed to be in default if Grantor fails to perform any of
the obligations imposed by this deed, the Note or the Agreement.
9, Remedies. On the occurrence of any event of default and at any time thereafter,
Beneficiary may exercise any one or more of the following rights and remedies:
9.1. The right to declare all sums secured by this trust deed immediately due
and payable.
9.2. The right to foreclose by notice and sale by Trustee or by judicial
foreclosure, in either case in accordance with applicable law.
9.3. The right in connection with any legal proceedings to have a receiver
appointed to take possession of any or all of the property, with the power to
protect and preserve the property and to use the property preceding
foreclosure or sale end apply the proceeds, over and above costs of the
receivership, against the loan obligations. The receiver may serve without bond
if permitted by law. Beneficiary's right to the appointment of a receiver shalt
exist whether or not apparent value of the property exceeds the loan obligations
by a substantial amount,
9.4. Any other right or remedy provided in this deed, the Note or the
Agreement.
PAGE 2-TRUST DEED
10. Application of proceeds. In the event the Trustee exerdses the power of sale
conferred by this trust deed, the Trustee shall apply the proceeds of the sale in the
following order:
10.1, To the expense of the sate, including reasonable attorney fees,
10.2. To the loan obligations secured by this trust deed, and
10.3. The surplus, if any, to the persons entitled thereto.
11. Waiver. A waiver by either party of a breach of a provision of this agreement
shalt not constitute a waiver of or prejudice the party's right otherwise to demand strict
compliance with that provision or any other provision, Election by Beneficiary to
pursue any remedy shall not exclude pursuit of any other remedy, and an election to
make expenditures or take action to perform an obligation of Grantor under this deed
after failure of the Grantor to perform shall not affect Beneficiary's right to declare a
default and exercise its remedies under this trust deed or the Contract.
12. Trust Deed Binding on Successors and Assigns. Subject to the limitations
stated in this deed on transfer of Grantor's interest, and subject to the provisions of
applicable law with respect to successor trustees, this deed shall be binding on and
inure to the benefit of the parties, their successors and assigns.
13. Subordination. Grantor and Beneficiary acknowledge and agree that this Deed
of Trust is subject and subordinate in all respects to the liens, terms, covenants and
conditions of the Deed of Trust in favor of Bank of America ("First Deed of Trust") and
to all advances heretofore made or which may hereafter be made pursuant to the First
Deed of Trust including all sums advanced for the purpose of (a) protecting or further
securing the lien of the First Deed of Trust or for any other purpose expressly
permitted by the First Deed of Trust or (b) construction renovating, repairing,
furnishing, fixluring or equipping the Property. The terms and provisions of the First
Deed of Trust are paramount and controlling, and they supersede any other terms and
provisions hereof in conflict therewith. In the event of a foreclosure or deed in lieu of
foreclosure of the First Deed of Trust, any provisions herein or any provisions in any
other collateral agreement restricting the use of the Property to tow or moderate
income households or otherwise restricting the Grantor's ability to sell the Property
shall have no further force or effect on subsequent owners or purchaser of the
Property. Any person, including his successors or assigns (other than the Grantor or
a related entity of the Grantor), receiving title to the Property through a foreclosure or
deed in lieu of foreclosure of the First Deed of Trust shall receive title to the Property
free and clear from such restrictions.
Further, if the property is transferred as a result of deed in lieu of foreclosure
pursuant to the First Deed of Trust the lien of this Deed of Trust shall automatically
terminate upon transfer of the property pursuant to the foreclosure or deed in lieu of
foreclosure provided that (i) the Beneficiary has been given written notice of a default
under the First Deed of Trust and 0i) the Beneficiary shall not have cured the default
PAGE 3-TRUST DEED
under the First Deed of Trust, or diligently pursued curing the default as determined by
the beneficiary under the First Deed of Trust within the 60.day period provided in such
notice to the Beneficiary.
STATE OF OREGON
COUNTY OF JACKSON
This instrum__~ent was ack, nowledged before) me on.-~'~/~/~7 by
k~ Not-~y~)jb~liC~_ for Oregon
My ~ssion expires:
OFFICIAL SE
~ DIANE PETERMANN 'l
~' NOTARY PUBLIC OREGON
'<za~-' COMMISSION NO. 047574
MY COMMISSION EXPIRES OCT 3, 1999
PAGE 4-TRUST DEED
LOt Thirty-eight (38) in ASHLAND VILLAGE sUBDIVISION, A PLANNED cOMMUNITY
in the City of Ashland, jackson countY, Oregon, according to the official
plat thereof, now of record-
(code 5-1, Account #1-89367-3, Map ~391ElOBB, TaX Lot #3740)
Jackson County, Oregon
Recorded
OFFICIAL RECORDS
JUN 1 2 1997
COUNTY CLEEK