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HomeMy WebLinkAbout2007-019 Resale Restriction - Barclay Sq. Condo When Recorded Return Original to: Barbara Christensen, City Recorder 20 East Main Street, Ashland, Oregon 97520 Jackson County Official Records 2007-003781 R-DR Cnt=1 Stn=10 ALoNzol&,,1/23/2007 08:01 :00 AM $40.00 $5.00 $11.00 Total:$56.00 1111111111" 1II1I 01242315200700037810080080 /~ t!b I, Kathleen S. Seckett, County Clerk for Jackson County, Oregon, certify that the instrument identified herein was recorded in the Clerk records. Kathleen S. Beckett - County Clerk FIf - CjL/l./767J1'lI CITY OF ASHLAND AFFORDABLE HOUSING RESALE RESTRICTION COVENANT Owner: Barclay Square Condominium, Property Address: LLC, an Oregon limited liability company 2241 McCall Drive Ashland, OR 97520 Agreement date: December 22 , 2006 Maximum Purchase Price: (adiusted annuallv oer 1993-39) Date of Purchase: Not Applicable Name of development: McCALL DRIVE CONDOMINIUM .(jtJ S If Covenant 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 covenant agreement is described more fully on the attached Exhibit A. B. Sale or rental of the home is subject to certain restrictions which require that the home be sold to an eligible moderate-income household, or rented to an eligible low-income household, pursuant to the City's Affordable Housing Program as set forth in Ashland City Council Resolution 93-39 ("Program"). The Owner shall transfer or rent the home only to an eligible household where the purchaser or renter intends to live, and actually does live, in the home as a primary residence. C. The resale or rental restrictions were imposed on this home when the development received Planning Approval, including a density bonus, to developer 32 units at 2205 Ashland Street. Eight of the units, which include this Home, are to remain affordable in accordance with the density bonus standards established under 18.88.030 of the Ashland Land Use Ordinance in effect as of the 2004 Planning Approval date. The Owner understands that signing this Covenant Agreement and complying with its terms are necessary to permit the City to fulfill its affordable housing goals. This covenant agreement fulfills condition 14 of PLANNING ACTION (#2004-116) that required the applicant in that planning action to sign an agreement prepared by the City PAGE 1-RESALE RESTRICTION COVENANT / G:lcomm-devIHOUSINGlAffordable Unit Program infol ResaleRestrictcovenant_condo.doc of Ashland stipulating that eiaht of the units, as identified in the condominium bylaws, comply with the Program established by the City of Ashland for purchase or rental housing for a period of not less than 99 years. The agreement is to be recorded in the deed records. Since the Planning Approval for this home, the City has amended the Program by means of City Council Resolution 2005-46 to incorporate association fees, insurance and taxes along with purchase price into the definition of affordable housing. Assuming the Owner charges the maximum purchase price, the effect of the Resolution amendment is to restrict the condominium association's ability to assess condominium units for their share of common expenses. The City system development charge deferral program is conditioned upon compliance with such resolution, but the Owner is unable to comply, because the Oregon Real Estate Agency will not approve the project condominium documents subject to such assessment restrictions. The City is in the process of seeking a resolution of these concerns with the Oregon Real Estate Agency. Pending such resolution, Owner has deposited satisfactory security with the City for payment of the system development charges for the home in the event Owner elects not to amend this Agreement to incorporate the revised Program restrictions approved by the Oregon Real Estate Agency. AGREEMENT: City and Owner agree: The recitals set forth above are hereby incorporated herein by this reference. 1. OccuDancv Reauirement. You agree and acknowledge that the City's acceptance of your participation in the Program and sale of the home is conditioned upon continuing occupancy of the home by qualified households. Occupancy of the home is conditioned upon the owner-occupant household being qualified at or below 130% the Area Median Income. Rental of the home is conditioned upon continued occupancy of the home by qualified moderate-income households earning at or below 80% the Area Median Income. For purposes of this agreement, continuing occupancy includes renting of the home by the Owner to others provided the renting household is qualified under the City's affordable rental program income limits and the rental costs do not exceed the limits established under the rental program. 2. Transfer of Home. Except as provided in paragraph 3, you agree to "transfer" the home consistent with this agreement and the provisions of Ashland City Council Resolution 93-39 in effect as of the date of the 2004 Planning Approval referenced above 2.1. 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, any right to possession under a rental agreement, or an interest evidenced by a mortgage, trust deed or PAGE 2-RESALE RESTRICTION COVENANT /) G:\comm-dev\HOUSINGlAffordable Unit Program info\ ResaleRestrictcovenant_condo.doc 0-. land sale contract in which possession of the home is transferred and you retain title. 2.2. Assumption reauirement. This Covenant Agreement shall apply to and bind any purchaser or transferee in an exempt or qualified transfer (see paragraph 3). Such purchaser or transferee (other than a renting household qualified under the City's affordable rental program) shall assume your duties and obligations under this Covenant Agreement in writing, or sign an agreement substantially similar to this Covenant Agreement, prior to the transfer of the home. If the purchaser or transferee fails to assume this Covenant Agreement or execute and deliver a substantially similar agreement to the City prior to the sale or transfer, then the sale or transfer shall be considered void and the City may enforce any of its remedies as contained in section 3.2.7 below. Recording of the covenant 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 Covenant 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. 3. Exempt and Qualified Transfers. Notwithstanding paragraph 2 above, if a transfer is either an "exempt transfer" or a "qualified transfer" as provided in this paragraph, such transfer shall not be considered a violation of this agreement. 3.1. Exempt transfer. An "exempt transfer" is: 3.1.1. A transfer by the Owner of a home being rented to a low-income household under the Program to a transferee who will continues to rent the home under the Program 3.1.2. 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. If title is taken as described in this paragraph, and the home is being rented to a low-income household under the Program, the transfer is only exempt if the transferee will continues to rent the home under the Program. 3.1.3. 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 PAGE 3-RESALE RESTRICTION COVENANT 3 G:lcomm-devIHOUSINGlAffordable Unit Program infol ResaleRestrictcovenant_condo.doc securing it, provided that the proceeds of such home equity loan shall only be used for improvements to the home, including landscaping. 3.2. Qualified transfer. A "qualified transfer" is a transfer to an eligible buyer under the Program for a sales price that does not exceed the affordable housing purchase price as determined by Ashland City Council Resolution number 93-39 in effect as of the 2004 Planning Approval date. A qualified transfer shall include the rental of the home to an eligible household as determined by Ashland City Council Resolution number 1993-39 in effect as of the 2004 Planning Approval date. At least 30 days prior to the transfer, you shall provide the following information to the City: 3.2.1. The name, address and telephone number of the proposed buyer or renter(s); 3.2.2. 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. Use of the property, as a rental, requires all members of the rental household provide income verification documentation to the City to qualify as an eligible renter. The financial information shall be used by the City to determine the income eligibility of the proposed buyer. To be an eligible buyer under the Program, 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. 3.2.3. A copy of the proposed sales agreement or rental agreement and all related documents, which set forth the terms of the transfer; 3.2.4. A written certification signed by the proposed buyer or renter(s) and you in a form acceptable to the City stating that: 3.2.5. The transfer shall be closed in accordance with the terms of the sales agreement or rental agreement and other documents submitted and approved by the City; 3.2.6. 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, renter(s), 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; 3.2.7. 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 rental PAGE 4-RESALE RESTRICTION COVENANT li G:lcomm-devIHOUSINGlAffordable Unit Program intol ResaleRestrictcovenant_condo.doc - r u . agreement, or to declare the sale void notwithstanding the fact that the sale may have closed and become final as between the buyer and you. 4. 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 3.2. 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. 5. Priority and Effectiveness of this Covenant Aareement. This Covenant 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. 6. Term of Aareement. The restrictions contained in this Covenant Agreement shall continue for a period of 99 years from the date of this Covenant Agreement. 7. Survival of Aareement UDon Transfer. The City's rights under this Covenant Agreement shall survive any transfer of the home by you. 8. Notices. Except as otherwise specified in this Covenant Agreement, all notices required to be sent pursuant to this Covenant 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: Barclay Square Condominium, LLC, c/o Archerd & Dresner, LLC 550 Main Street 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. PAGE 5-RESALE RESTRICTION COVENANT 5 G:lcomm-devIHOUSINGlAffordable Unit Program infol ResaleRestrictcovenant_condo.doc 10. Amendment. This Covenant Agreement may be amended upon mutual agreement in writing signed by the City of Ashland and the Owner or the Owner's successor in interest, provided however, the agreement of the Owner's successor in interest shall not be required for Owner and City to amend this Agreement to (a) reduce the term of this Agreement to 30 years, or (b) incorporate into this Agreement the changes to the Program adopted by the City and approved by the Oregon Real Estate Agency for application to condominium projects in the future. Any such amendment shall be fully binding upon the successor in interest of the Owner. Upon the date of such Amendment to fully comply with current affordable housing requirements for SDC deferral, the City will permit Owner to defer the system development charges for the home and will release the security Owner has deposited with the City. Owner acknowledges that reduction in the term of this Agreement will require the City to approve a modification of condition 14 referenced above. Owner reserves the option of paying the system development charges to avoid any such amendments to this Agreement. 11. Default. A default shall occur if you fail to perform or observe any of the provisions of this Covenant Agreement. If any default occurs, City may, at its option, require you to rescind any sale or rental, or the City may seek specific performance of this Covenant Agreement by suit in equity. The remedies provided above shall be nonexclusive and in addition to any other remedies provided by law. 12. Bindina Effect. Throughout this Covenant Agreement, the terms "Owner" and "you" refer individually and collectively to all persons who sign this Agreement and all persons signing this Covenant Agreement shall be jointly and severally liable for its obligations. 13. Attornevs' fees. If either party is required to initiate legal proceedings to enforce its rights under this Covenant 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. Signatures on Next Page PAGE 6-RESALE RESTRICTION COVENANT / G:\comm-dev\HOUSINGlAffordable Unit Program infol ResaleRestrictcovenant_condo.doc (() OWNER: Archerd & Dresner, LLC ~~~~z:f By: C~ Its: Date: \:~- t~~ Cc:. r- State of Oregon County of Jackson This instrument was acknowledged before me on /:; /.:1. ;L , 2006, by E v ArJ A ~CI-l6/2./) ) Ih~ .. it OFFICIAL SEAL '. MARION ROSE '. NOTARY PUBLlC-OREGON -. COMMISSION NO. A37tIR5 MY OMMISSION EXPIRES MAR. 8. 2008 Nota~~ My commission expires: 3 <j? bY . CITY: Date: IZ~2 /c;~ State of Oregon County of Jackson This instrument wj!s acknowledged before me on ~ by /Y)/lrtAJ<j L5MNtI as 0..1 a4~t.(.:ry Ashland, Oregon. '. to , 200.\: ~ of the City of OFFICIAL SEAL BRENDA l. BARKER '. N() lAR'!' PUBII( I ,f<f <JON "t,. \ lMMISSI('N Ni .\ ',1665 My C.uMM:~.,.'.;UN EXPIRl::, JUt y, 2007 ~ 1tsda~ Notary Public for regon My commission expires: '7 /02/ fa 7 PAGE 7-RESALE RESTRICTION COVENANT 7 G:lcomm-devIHOUSINGlAffordable Unit Program info\ ResaleRestrictcovenant_condo.doc """ '- .. .", . -- LANe:> SUR.VEYING, L.L.C <"".'"'~_"M"'w<~~.'",=,-,-",,",._,_v,"~'.=',,,,"",,,~~,,,,,,,,,,,,~",,,,,,~_~_._,""~.-----_".",..,.~.,..."~...___",.........._.....,.,.....~.~",,,,,,",,,,,,,_._~,.~~..._..~~...,,~,,,~""~"''''''''-''''''''''''''~'--'~~''''__''''''''_''''~''"'.~~''''''''''''''''"''''____~_''''^''-''~___'''~''''''..__'-'._4_~", ''-''_'''"'~'''_'., ~ '" J-( '" '" '" '" H EXHIBIT" A" LEGAL DESCRIPTION UNIT 2241, McCALL DRIVE CONDOMINIUM ASSESSORS MAP NO. 39 IE 11 CC, Tax Lot 100 A Condominium Unit within a portion of that tract of land described within Instrument No. 2006-054636 of the Official Records of Jackson County, Oregon, lying situate within the Southwest Quarter of Section 11, within Township 39 South, Range 1 East of the Willamette Meridian in the City of Ashland, Jackson County, Oregon, being more particularly described and bounded as follows, to wit; Unit 2241 of McCall Drive Condominium, according to the official plat thereof, filed on January 19 ,2007 in Volume 33 , Page 04, of the Plat Records of Jackson County, Oregon. Together with that percentage of the Limited and General Common Elements of McCall Drive Condominium, appurtenant to said Unit, as described in the Declaration recorded on January 19 ,2007 in Instrument No.2007- 003422 of the Official Records of said County. The land included in such property is described in the Declaration and such description is incorporated herein by reference. Prepared by: Shawn Kampmann Professional Land Surveyor REGISTERED PROfESSIONAL r:YOR Polaris Land Surveying LLC P.O. Box 459 Ashland, Oregon 97520 (541) 482-5009 s~ ~'1*.'tf I JU~~/~~:(;~;9(} SHA\V,'l KJ\r/}p~v1f'\.Nr" ~ 028G3LS Renewal Date: 6/30/07 Date: December 21, 2006 S:\surveys\l68-04\McCall Drive Condo Unit 2241 Legal.doc P. o. f'ox 459. Ashland. Oregon 97520 Phone: (541) 482-5009 K Fax: (541) 488-0797 Mobile: (541) 601-3000 K www.polarissurvey.com 2?