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HomeMy WebLinkAbout2004-171 Resale Restr - GesslerWhen Recorded Return Original to: Barbara Christensen, City Recorder 20 East Main Street, Ashland, Oregon 97520 R-TD Cnt=l Stn=3 MORGANS~?/21/2004 03:50:52 PlVl $30.oo $5.oo $11.oo Total:S46.00 01044994200400417560060063 I, Kathleen S. Beckett, County Clerk for,Jackson County, Oregon, certify' that the instrurnenl! identified herein was recorded in the Clerk records. Kathleen S. Beckett- County Clerk TRUST DEED This trust deed is made on ~oL,~ [~ , ,2004, between Hazel Gessler, as Grantor(s), the City of Ashland, as Beneficiary, and Mike Franell, 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 Water and Sewer 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, alii 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 A~hland Affordable Housing Resale Restriction Covenant (SDCs Only) dated Ir3 2004,_ ("the Agreement") entered into by Grantor and Beneficiary'. The term ~an obli~l~tions 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 PAGEI-TRUST DEED 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. 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 Ipart thereof. Trustee shall not be obligated to notify any other party of a pending sale undler 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 immediat~ely 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 sub...;tantial amount. PAGE2-TRUST DEED 9.4. Any other right or remedy provided in this deed, the Note or the Agreement. 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 agreernent 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. az~l Gessler (Grantor) STATE OF OREGON COUNTY OF JACKSON This instrument was acknowledged before me on Notary Public for Oregon My commission expires: PAGE3-TRUST DEED FOaM Ne. 7~)--4AIGAIN ANO ~ALi DIID. KNOW ALL MEN BY THESE PRESENTS, T~t H,H.GARBARSKi ........................................... [or the ~ns~deration L~reina[ter mtat~ d~m here~ ~r~t, bargain, ~]1 a~ ~nvey unto .......................................... ..................................................................... ~ ................................... ....................... hereina/ter ~]led ~rantee, a~ unto ~rant~'~ he~l,'~rm a~ as~n~ all o~ that ~rta~n real pro~rty w~th t~ tenem~t~ ~.~e~item~nt~ ~ eppurtena~ t~reunto ~lon~in~ or in anyw~ ap~rtaJninS, ~tuat~ in the C~nly o~ ............................................................ , Sta~e o~ O~e~on, d~ a~ f~, ~o.~: R~L PROPERTY~ From a poln~ mea~uring North ]2~ feet from the quat=~ co~er~bc~¥~eau SegtXona ]~ and 2~,Town~hip ~9 South,Ran~e ] EAST of the Willamette Me~X~ Jackson gounty~Ouegan.to intersect Northerly right of wayline of H~g~way //99 thence South ~6' ]}'EAST ~85.2~ fee~;theuce North 726 feet to the South line of Street; thence North 56'{3'West along said Street 240 feet for a true point of..~e~lng; ~he~e Sou~h 178 fee~; ~hence North 56'~3'Wes~;97.15 fee~ WO~t'lln~"of property discribed in volume 255,page 2~,~eed Records of Jackson Couu~y,Oregou ~hence North 178 fee~ ~o Sou~hllne of S~ree~;~hence Sou~h Eas~ 97.15 fee~o ~he poin~ of beginning. Oode 5 Acc~.No 14D39~E 131 SubJec~ to exceptions dlscri~ed ~elow, 1.The rights of ~b~c in ~d to portion of above discribed premises within XAe limits of ~blic s~reets. 2.Regulations of TA~NT IRRIGATION DIS~ICT,~hin whic$ the above proper~y lies including le~es,assessments,water ~d irrigation rights ~d easements for di~'e~ ~d c~alse 3.Easement for transmissions and distribution of electricity,granted to The California Oregon Power Company,Asset forth in Volume 391,Page 138 Deed Records of Jack. son County To Have a~ to Hold the ~me unto the ~d ~rant~ a~ ~t~tee'l ~r{, mu~rs and a~{na toreve~. The true and actu~ ~aJderation paid tot t~ tranMet, etat~ in terme ol dollar~, ie $..~OQO.oo ................ ~However, the actu~ ~n~detation ~n~tl ol or Jn~udee ot~r pro~rty or v~ue jJven or promi~ ~ Je the wh~e ~deraHon (indi~te w~).~ In ~nstruin~ this de~ the ~n~ude~ t~lur~ as the ~msta~. may r~uire. ..................................................................................................................... Bargain and Sale Deed j[ ..~.,.~...,.¢,..~.~.,..~..s..~ ........ .............................. STATE OF OREGON I c~rtii~ that th~ ~ithin in,truo ment waJ r~ved /or record on the at/&~//t9 o'clock/"'M., and recorded ord ~ Mid County. WitneJ~ mY hand and ~eal ot County. ailixed. ...........:,..,,,~y........r.~=? ................ THI* By ~V~eputy When Recorded Return Original to: Barbara Christensen, City Recorder 20 East Main Street, Ashland, Oregon 97520 $2656.00 PROMISSORY NOTE SECURED BY DEED OF TRUST Ashland, Oregon, ,2004 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 Two Thousand Six Hundred and Fifty Six & 00/400 ($2656.00), plus accrued interest, upon the terms and conditions set forth below. 1. AFFORDABLE HOUSING AGREEMENT. This obligation is secured by a ']-rust 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 RESALF 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 the property and make the rental unit available to eligible Iow-income households, and so, long as l 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 transfer of the property containing the rental unit to a 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 property to any person or entity, other than a buyer as defined in the Agreement who assumes this note and the trust deed securing it, and agree to comply with all of its terms, 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 of the property containing the rental unit and am not in default under any terms of this note or the trust deed, this note and PAGE 1 of 2-Promissory Note (Rev'd 8/97) 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 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. ATTORNEY 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, sucl~ 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 I~- day of ',.-~L)L,,? ,2004 NOTICE TO BUYER: THIS DOCUMENT CONTAINS PROVISIONS RESTRICTING RESALES AND ASSUMPTIONS. SignatUre Print Name PAGE 2 of 2-Promissory Note (Rev'd 8/97) When Recorded Return Original to: Barbara Christensen, City Recorder 20 East Main Street, Ashland, Oregon 97520 J~ckson County Official Records 2004-041757 R.DR Cnt=l Stn=3 MORGANS~?/2t/2004 05:51:52 PM $25.0o $5. oo $11 .o0 Total :$41.00 01044995200400417570050053 I, Kathleen S. Beckett, Counl.'y Clerk for Jackson County, Oregon, certify that the instrument identified herein was recorded in the Clerk records. Kathleen S. Beckett - County Clerk CITY OF ASHLAND AFFORDABLE HOUSING RESALE RESTRICTION COVENANT (SDCs ONLY) Owner: Hazel Gessler Property Address: 295 Mistletoe AShland Oregon, 97520 Assessors Ma # 391E14D Tax_L°_~t--~-~~/ ~ Maximum Purchase Price as of the date of Agreement date: this agreement = $146,744.00: Maximum Rent = Not more than $794 per ~ ~-~sted annual~u~er resolutio~n 9~3.-39~~ Name of development: i Date of Purchase: Owned Gessler Pro e_p_~ Agreement entered into on the date specified above by the City of Ashland ("City") and the "Owner" named above regarding certain improved real propertY located at the property address specified above ("the dwelling unit"). RECITALS: A. The dwelling unit referred to in this agreement is described more fully on the attached Exhibit A. B. The dwelling unit is being made available at affordable rent to eligible Iow-income households, pursuant to the City's Affordable Housing Program ("Program"). C. The Owner recognizes that in making the dwelling unit available to eligible Iow-income households, the Owner is receiving the benefits of the City's assistance to the property upon which the dwelling unit is located. 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: The Owner agrees and acknowledges that 1. ~t Occu anc Re uirement,renting the City's participation in the Program is conditioned upon Owner's continuous or the sale of the dwelling unit \ to eligible Iow-income households at affordable rent or purchase levels, in accordance with the provisions of Resolution No. 93-39 adopted by the Ashland City Council. PAGE 1-RESALE RESTRICTION COVENENT (2004) 2. Deferment of Systems Development Charqes (SDCs). City will defer the payment of Water and Sewer SDCs owed by the Owner and due on the dwelling unit. The Owner 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 property containing the rental unit. 3. Transfer of Property. When the property containing the dwelling unit is sold or transferred, Owner agrees to pay any amount due from the promissory note referred to in paragraph 2. 3.1. Definition of transfer. To "transfer" the property of the dwelling unit means any sale, assignment or transfer, whether voluntary or involuntary, of any interest in the property, including, but not limited to, a fee simple interest, a co-tenancy interest, a survivorship interest, a life estate, a leasehold interest, any right to possession under a rental agreement, or an interest evidenced by a mortgage, trust deed or land sale contract in which possession of the rental unit is transferred and the Owner retains title. 3.2. Assumption requirement. This agreement shall apply to and bind any purchaser or transferee for the term of this agreement. Such purchaser or transferee shall assume the Owner's duties and obligations under this Agreement in writing, or sign an agreement substantially similar to this Agreement, prior to the transfer of the property. 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 the Owner 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. Owner agrees 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 writh any transfer under this Agreement. Upon the close of any transfer, Owner 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. Owner Must Notify City of Transfer. If Owner desire to transfer the property containing the dwelling unit, Owner is required to notify City in writing to that effect. The notice shall state the street address of the Owner's home, full name or names, the address and telephone number at which the Owner may 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 8. PAGE 2-RESALE RESTRICTION COVENENT (2004) 5. Priority and Effectiveness of this Aqreement. 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 property, or of any estate or interest in the dwelling unit, by the Owner. Tlhe Agreement shall have priority over any subsequent sale, conveyance, transfer, lease or other disposition or encumbrance of the property, or of any estate or interest in the property. 6. Term of Aqreement. The restrictions contained in this Agreement shall continue for a period of 20 years from the date of this Agreement. 7. Survival of Aqreement Upon Transfer. The City's rights under this Agreement shall survive any transfer of the property by Owner. 8. 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 Specialist City of Ashland 51 Winburn Way Ashland, Oregon 97520 OWNER: Hazel Gessler 295 Mistletoe Rd Ashland, OR 97520 The addresses above may be changed by notice given pursuant to this paragraph. 9. Waiver. No condition of this agreement or of the note or trust deed shall be deemed waived unless expressly waived in writing by City. 10. Default. A default shall occur if Owner fails to perform or observe any of the provisions of this agreement, the note or trust deed. If any default occurs, Ciity 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 3-RESALE RESTRICTION COVENENT (2004) 11. Bindinq Effect. Throughout this Agreement, the term "Owner" refers 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. 12. 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. 13 Annual Report to City. Owner shall submit an annual report to the City in a form approved by the City. The annual report shall include the income and family size of the household occupying the rental unit. The report shall also state the date the tenancy commenced for the rental unit and such other information as the City may be required by law to obtain. OWNER: Hazel'~essler State of Oregon County of Jackson This instrument was acknowledged before me on by ~&z.c=~_ ~,.~r,__ and Oin~o ~Ori~imald~istrator 2004, Notary Public for Oregon My commission expires: State of Oregon County of Jackson This instrument was acknowledged before me on ~ !'¢ ,2004, by ~/~/'/~o ~ r,',~.[~d as ~_~ /¢ff~'~/~l~o~ of the City of Ashland, Ore~n. ~ ~ OFFICIAL SEAL ~ ~~~ SONJA N AKERMAN ~ Notaw P~lic for Oregon ~~~ NOTARY PUBLIC - OREGON ~ My commission expires: ~-~-~ ~ ~~/ COMMISSION NO. 355829 ~ fOILM ,~.. 7'J)..--I~I~GAIN ./d40 S~LI HID. '"~3"-.l'7211 .... ' .... --/~:/~ 2,5. KNOW ALL MEN BY THESE PRESENTS, That ................................................................................... .......................................................... ~.,.!b...Ci.~.~ A.R~ i~ ~' ................................................................................................. .............................................................................................................................................................. hereinalter ~led ~r~ntor, tot the ~nsideration l,erelnalter atat~, d~ hereby ~r~t, bar~ain, ~ll a~ ~n~ey unto ................................................................................... ~. ........................................................................................................ hereina/ter called ~rantee, a~ unto ~rantee'z hei~;-~s~ra a~ assign, all ut that ~rtain real property ~ith tenements, hereditzm~nt~ z~ appurtena~es t~reunto ~londin~ or in anywi~ ap~rlainin~, situated in the C~nty JAC~ON d ~t' ~t R~L PROPERTY; From a point measuring North 1233 feet from the quater co~er~bct~'zeen Sections 14 and 23,Township 39 South,Range 1 EAST of the Willamette Meri~ Jackson County,Oregan.to intersect Northerly right of wayline of Highway //99 thence South 56' 13'EAST 385.25 feet;thence North 726 feet to the South line of Street; thence North 56'~3'West along said Street 240 feet for a true point 0,f.~egSn~ing; the~e Bouth 178 feet; thence North 56'13'West;97.15 feet to,the Wost"li~"'of property discribed in volume 255,page 2~,Deed Records of Jackson County,Oregon thence North 178 feet to Southllne of Street;thence ~outh 56'13' East 97.15 fee~to the point of beginning. Code 5 Acct.No 14D391E 131 Subject to exceptions discribed below, 1.The rights of ~blic in ~d to portion of above discribed premises within ~e limits of ~blic streets. 2.Regulation, of TA~NT IRRIGATION DIS~ICT,within whic~ the above property lisp including le~ez,assezements,water ~d irrigation rights ~d easements for dl~e and ca~al$. 3.Easement for transmissions and distribution of electricity,granted to The California Oregon Power Company,Asset forth in Volume 391,Page 138 Deed Records of Jackson County JIF ~J IN~ttCIEN[, C~tlt~J DE~IPTI~ ~ REVERE SlOJl ~o ~ave and ~o Hold t~e ~me unto l~e ~Jd jrantee ~ jraniee'~ ~ir~, ~u~rs and ~JjnJ torever. · ~e true and actual ~ideralion paid io~ t~J~ tran~ter, ~lat~ in termJ ut dollar~, i~ ~..~OQO.oo ................ ·However, Ihs ac/ua/ ~nsideratJon ~n~i~tJ ut or in~ude~ olher pro~r~y or v~lue jJven or promi~ w~ In ~n~trulnj i~i~ deed t~e ~inj~udes l~lur~ ~ ~he ~m.~a~J may r~uire. w,~,, ~,~o,',. ~,,d ~, ....~ .~...d,y ~ ... ~.~. ~'~ ............... ~ ~.. ~ .3... . ................................. ............................................................................................................................................................................................. s~ar~,,F¢~,~, co~ ...... ~ .. ~ ~. ~~ .................. ~... ;~,~'~,~ tn, ,~, ~ .......... ~.....~ ...... ~ ................................................. · ~ .'~ ~ . .~; ...~ ~ .................................. ,' ~..~ ....... ~a ............. , ................................................................. ~ ............ · ~ t?,..':''~'~''c~ . ,,, · ',,~ ~ O.e ~:' /.': ~.o,. ~.: ............... ~~~~ ....................... .... STATE OF OREGON Bargain and Sale Deed c~,~ o~~....~ "' ..... g~.,¢~8~8.~[~ ............................. I ~rtit~ ~h~t tho within ~ ~ ............................................................................. ~ ¢ ~r ot~~, ~.~., ~oo~'* u*~ t~,* at/~/~ . o'cl~k ~M., and r~rded ......................................................................... u.~o.) ord ~1 ~id County. ~:: ~' ' ' '' Witness my hand a~ ~al ol ~ Coun/x aHixed. .... ~ ...~