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HomeMy WebLinkAbout1998-030 Resale Restr - Gaut PROMISSORY NOTE SECURED BY DEED OF TRUST $ 4,406.53 Ashland, Oregon, Hatch 23 , 1998 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 ~ ~D. Sa~D ~ FLN:N~ S'D: ~ 53/100 ($ 4,406.53 ), plus accrued interest, upon the terms and conditions set forth below. 1. AFFORDABLE 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. INTEREST. 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 primary 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 otherwise 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 comply 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 EFFECT; JOINT AND SEVERAL 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 1 of 2-Promissory Note (p:planning~afforev.not) (Rev'd 8/97) individually and collectively to all persons who sign this note, and all persons signing this note shall be jointly and severally liable for its obligations. 5. A-I-rORNEY 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 waiver by the City of any default shall be considered a waiver of any subsequent default or a waiver of this paragraph. EXECUTED this ,,~3~ay of ,1998. NOTICE TO BUYER: THIS DOCUMENT CONTAINS PROVISIONS RESTRICTING RESALES AND ASSUMPTIONS. Printed Name Printed Name PAGE 2 of 2-Promissory Note (p:planning\afforev.not) (Rev'd 8/97) TRUST DEED This trust deed is made on Hatch 23 1998, between CARY GAUT MELANIE ROSE LIVELY-GAUT 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 March 23, 199¢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 (p:planning~aff-trst.ded) 5. Warranty of title. Grantor warrants that Grantor holds merchantable title to the property in fee simple or that Grantor holds a vendee's interest in the property under a conditional sales contract. Grantor warrants and will defend Grantor's title against the lawful 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 Reconveyance. 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 and 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 shall 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 (pplanning~aff-trstded) 10. Application of proceeds. In the event the Trustee exercises 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 sale, 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 shall 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. STATE OF OREGON COUNTY OF JACKSON This instrument was acknowledged before me on ..~*-.,~.~.~ by : .._ ..,.. ......... ....~..~:,.~.,..', . ........~ .....~~u~c for Oregon ~'~:'" :::',:.~. ::'~ *,My commission expires: PAGE 3-TRUST DEED (p:planning~aff-trst. ded) 78128 98-11553 EXHIBIT Lot Thirty-one (31) 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 5-01, Account #1-89359-2, Map #391E10BB, Tax Lot #3732) 3ackson County, Oregon Recorded OFFICIAL RECORDS HAR 2. 5 1998 CITY OF ASHLAND AFFORDABLE HOUSING RESALE RESTRICTION AGREEMENT (SDCs ONLY) CARY GAUT MELANIE ROSE LIVELY-GAUT Agreement date: 3 23 98 Name of development: ASHLAND Recording Requested by: When Recorded Return to: Property Address: 1126 VILLAGE SQUARE DRIVE ASHLAND, OR 97520 Purchase Price: ViLLAGe Date of Purchase: MARCH , ] 99S 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. 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 PAGE 1-RESALE RESTRICTION AGREEMENT (p pl ..... g\aff-sdc fk)(1997) 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.f~){1997) 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 note immediately due and payable and enforce any of the remedies set forth in the trust deed. PAGE 4-RESALE RESTRICTION AGREEMENT (p:planning~aff-sdcfk)(1997) 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. OWN~J:~, · - L '"' Title: State of Oregon County of Jackson CITY OF ASHLAND: This instrument was acknowledged before me on ,19.98, '-,' COr.~;S~ON EXP~:~ES OCT % State of Oregon Coun~ of Jackson M co m'S~ This instrument was acknowledged before me on by as Ashland, Oregon. , 1998, of the City of Notary Public for Oregon My Commission expires: PAGE 5-RESALE RESTRICTION AGREEMENT (p:planning~aff-sdc.fkX1997)