HomeMy WebLinkAbout2011-134 Trust Deed & Promissory Note - ACLT C4 0 �� Jackson County Official Records 2011-010
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When Recorded Return Original to: I I I II III III 11111111111 I I I IIIIIII IIIIIIIII II III
Barbara Christensen,City Recorder 1,Christine Walker,County clerk for Jackson county.Oregon,certify
20 East Main Street,Ashland,Oregon 97520 that the Instrument idenheed herein was recorded In the Clerk
records. Christine Walker-County Clerk
TRUST DEED
This trust deed is made on March 30, 2011, between Ashland Community Land Trust
A( CLT), as Grantor(s), the City of Ashland, as Beneficiary, and Doug McGeary, Interim
Acting City Attorney, 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 30 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 Covenant
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 Covenant dated 03/29/2011 ("the
Covenant") 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 Covenant.
4. Possession. Grantor agrees to pay the Note and the Covenant in accordance with
PAGE 1-TRUST DEED
their terms. Until default occurs, Grantor shall remain in possession and control of the
property and subject to the terms of the Covenant, 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 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 Covenant, 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 Covenant.
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.
PAGE 2-TRUST DEED
9.4. Any other right or remedy provided in this deed, the Note or the Covenant.
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 assi ns.
STATE OF OREGON
COUNTY OF JACKSON //
This instrument was acknowledged before me on yar6k ?O// by
li OMas 6/ad/e
OFFICIAL SEAL Notary ublic for Oregon
CAROLYN MAMENESCHWENDENER My commission expires: 3
NOTARY PUBLIC-OREGON .
COMMISSION NO.436232
MY COMMISSION EXPIRES MAR. 20,2013
PAGE 3-TRUST DEED
3
EXHIBIT A
Lot Forty Five (45) and the south 25 feet of Lot Forty Six (46) of SOUTHERN HOME TRACT,
in the City of Ashland, Jackson County, Oregon, according to the official plat thereof, recorded
in Volume 1, Page 114, Plat Records
Account 1-007842, Levy Code 5-01, Map 391E10 CC 1400.
u
When Recorded Return Original to:
Barbara Christensen,City Recorder
20 East Main Street,Ashland,Oregon 97520
PROMISSORY NOTE
SECURED BY DEED OF TRUST
$17,724.83 Ashland, Oregon, March 30, 2011
For value received in the amount of Seventeen Thousand Seven Hundred and Twenty
Four dollars and eighty three cents ($17,724.83) relating to the City of Ashland waiver of
System Development Charges, Engineering Fees and Community Development Fees,
and in compliance with Community Development Block Grant used to acquire the
property, I promise to retain the designated housing unit as affordable under Ashland's
Affordable Housing Program for a period of not less than 30 years.
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 COVENANT'and is subject to all the
terms and conditions of such covenant(further referred to in this note as "the Covenant"). The promissor
shall not have the right to repay any portion of the unpaid principal of this note to eliminate the
affordability restrictions in whole or in part.
2. 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.
2.ATTORNEY FEES AND COSTS. If either party is required to initiate legal proceedings to enforce its
rights under this Covenant, 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 Covenant.
4. 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.
5. 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 3o-k day of [ , 2011
NOTICE TO BUYER: THIS DOCUMENT CONTAINS PROVISIONS RESTRICTING
RESALES AND ASSUMPTIONS.
4Own ignatuOFFlCIAL SEAL
CAROLYN MARIENE SCWNDWE IER
NOTARY PUBLIC-0RWON
COMMISSION NO.436232
MISSION EXPIRES MAR. 20, 2013
Note
Smrn; ;vim ElfF rPS- 3- �a 13
When Recorded Return Original to:
Barbara Christensen,City Recorder
20 East Main Street,Ashland,Oregon 97520
CITY OF ASHLAND AFFORDABLE HOUSING
RESALE RESTRICTION COVENANT
Owner: Ashland Community Land Property Address:
Trust (ACLT) 410 and 412 Bridge Street
Current Address Ashland, OR 97520
P.O. Box 3027
Ashland, OR 97520
Agreement date: 03/29/2011 Purchase Price or maximum Rent as
adjusted annually by resolution 2006-13
Date of Purchase: N/A
Name of development: ACLT-Bridge Street Development
Covenant Agreement entered into on the date specified above by the City of Ashland
("City") and Individual Owner ("Owner") 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 low or moderate-income household, or rented to an
eligible low-income household, pursuant to the City's Affordable Housing Program
("Program"). The Owner shall transfer or rent the home only to an eligible household
where the purchaser or renter intends to live in the home as a primary residence.
C. The resale or rental restrictions were imposed on these homes when Ashland
Community Land Trust proposed to build two affordable townhomes in conjunction with
a Community Development Block Grant awarded by the City to purchase the property
at 404 and 408 Bridge Street for that purpose. 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 and provide a deferral of the System Development
Charges, Community Development Fees, and Engineering Services Fees. Upon
transfer of ownership the home the buyer's income and the price shall be submitted to
the Planning Division as well as a written certification, as provided in paragraph 4,
signed by the proposed buyer stipulating that they understand and agree to the
provisions of this Resale Restriction Agreement. The purchase of the units shall remain
affordable to households earning 80% or less the Area Median Income for a period of
not less than 30 years. The Resale Restriction Covenant, and any subsequent buyer
Assumption Agreements, are to be recorded in the deed records.
PAGE 1-RESALE RESTRICTION COVENANT U
City and Owner agree:
1 Deferment of Systems Development Charges (SDCs). City will defer the payment
of SDC's 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 SDC's that have been
deferred. The note and the obligations under this Agreement will be secured by a trust
deed on the home.
2. Occupancy Requirement. Owner agrees and acknowledges that the City's
acceptance of Owner's participation in the Program and sale of the home is conditioned
upon occupancy of the home only by qualified low or moderate-income households
earning no more than 80% or the Area Median Income. Rental of the home is
conditioned upon occupancy of the home only by a qualified low-income household
earning no more than 60% of the Area Median Income. The term "Area Median Income"
means the Medford-Ashland area median income as annually defined by the
Department of Housing and Urban Development. The qualified income occupant test
only applies as of the commencement of occupancy in order to encourage the
occupants' career advancement and other means of increasing the occupants'
household income. For purposes of this agreement, 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 Resolution 2006-13.
3. Transfer of Home. Except as provided in paragraph 4, Owner agrees to "transfer"
the home consistent with this agreement and the provisions of the Ashland City Council
Resolution 2006-13 in effect on the date of signing this Covenant Agreement.
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, 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 home is transferred and Owner
retains title.
3.2. Assumption requirement. This Covenant Agreement shall apply to
and bind any purchaser or transferee in an exempt or qualified transfer (see
paragraph 4). Such purchaser or transferee (other than a renting household
qualified under the City's affordable rental program) shall assume Owner's 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 4.2.7 below.
PAGE 2-RESALE RESTRICTION COVENANT
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. 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 with any transfer under this Covenant Agreement.
Upon the close of any transfer, Owner agrees 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. Notwithstanding paragraph 3 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.
4.1. Exempt transfer. An "exempt transfer" is:
4.1.1. A transfer by Owner of a home being rented to a low-income
household under the Program to a transferee who will continue to rent the home
under the Program
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; an acquisition of title, or of
any interest in the title, in conjunction with marriage; an acquisition of title, or of
any interest in the title, either by intestacy under Oregon Revised Statutes
chapter 112 or by will or devise. 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 continue to rent the home under the
Program.
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 that does not exceed the then present affordable
housing purchase price as determined by the version of Ashland City Council
Resolution number 2006-13 in effect on the date of signing this covenant, 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 under the Program for a sales price that does not exceed the affordable
housing purchase price as determined by City of Ashland Resolution 2006-13 in
effect on the date of signing this Covenant Agreement. A qualified transfer shall
include the rental of the home to an eligible household earning no more than
60% the Area Median Income as established by the City of Ashland Resolution
number 2006-13. At least 30 days prior to the transfer, Owner shall provide the
following information to the City: /yy
PAGE 3-RESALE RESTRICTION COVENANT /\
4.2.1. The name, address and telephone number of the proposed buyer
or renter(s);
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. 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.
4.2.3. A copy of the proposed sales agreement or rental agreement and
all related documents, which set forth the terms of the transfer;
4.2.4. A written certification signed by the proposed buyer or renter(s) and
Owner 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 or rental 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 Owner or for Owner's benefit, and Owner has not received nor will Owner
receive from the proposed buyer, renter(s), or any other party, either directly or
indirectly or for Owner's 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 rental
agreement, or to declare the sale void notwithstanding the fact that the sale may
have closed and become final as between the buyer and Owner.
5. Notification to City of Transfer is Required. Prior to transfer of the home, Owner
agrees to notify City in writing of such proposed transfer. If the proposed transferee is a
qualified transferee 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, full
name or names of the proposed transferee(s), the address and telephone number at
which the proposed transferee(s) are to be contacted. 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 Covenant Agreement. This Covenant
Agreement, or a memorandum of this agreement, shall be filed for recordation in the
PAGE 4-RESALE RESTRICTION COVENANT
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
Owner. The Covenant 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 Covenant Agreement shall
continue for a period of 30 years from the date of this Covenant Agreement.
8. Survival of Agreement Upon Transfer. The City's rights under this Covenant
Agreement shall survive any transfer of the home by Owner.
9. 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 Specialist
City of Ashland
20 E. Main Street
Ashland, Oregon 97520
OWNER: Ashland Community Land Trust (ACLT)
P.O. Box 3027
Ashland, OR 97520
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. 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.
12. Default. A default shall occur if Owner fails to perform or observe any of the
provisions of this Covenant Agreement. If any default occurs, City may, at its option,
require Owner 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.
13. Binding Effect. Throughout this Covenant Agreement, the terms "Owner" 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.
14. Attorneys' 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
PAGE 5-RESALE RESTRICTION COVENANT 10
recovery under this Agreement.
OW ER(S):F LAI'
KC'1 mf
to of Oregon
County of Jackson
This instrument was acknowledged before me on nxrCA 30, 2011,
by a,7705 ,B and
OFFlCIAL SEAL Notary lic for Oregon
CAAOLYN b1ARIENE SCIRNENDEpER
NOTARY PUBLIC-0RE60N My commission expires: Ly - a0 -
COMMISSION N0.4$6232
MY COMMISSION EXPIRES MAR. 20, 2013
CITY OF r8HLAND
4f I�K
Marta Bennett, City dmirnstrator
State of Oregon
County of Jackson nI c
This instrument was cknowledged before me o M&A 3 2011,
by �1�1' phi as ()L+v\ aiidd ✓ of the City of
Ashland, Oregon. —)
OFFICIAL SEAL
DIANA R SHIPLET Qw,
NOTARY PUBLIC-OREGON Notary Public for Oreg n
COMMISSION 454135 M commission ex ireS: NJr�b�i' a�, ao
N:Y MISSION EXPIRES NOVEMVEM BER 28,2014 y p
PAGE 6-RESALE RESTRICTION COVENANT l I
EXHIBIT A
Lot Forty Five (45) and the south 25 feet of Lot Forty Six (46) of SOUTHERN HOME TRACT,
in the City of Ashland, Jackson County, Oregon, according to the official plat thereof, recorded
in Volume 1, Page 114, Plat Records
Account 1-007842, Levy Code 5-01, Map 391E10 CC 1400