DEED RIDER
For
FHLBB New England Fund
Ownership Project
(annexed to and made part of that certain deed (the “Deed”)
from Island CoHousing, LLC (“Grantor”)
to ____________________ (“Grantee”)
dated___________, 2000.)
WITNESSETH:
WHEREAS, the Grantor is the owner of a certain parcel of land located in West Tisbury, Massachusetts (the “Property”) as more particularly described on Exhibit A hereto;
WHEREAS, Town of West Tisbury, Massachusetts (the “Municipality”) wishes to provide affordable housing to individuals and families of low and moderate incomes by facilitating the development of such affordable housing;
WHEREAS, the Grantor has received a comprehensive permit under Chapter 40B of M.G.L. for the purpose of constructing sixteen (16) residential units (the “Project”) comprised of twelve (12) units to be sold by Island CoHousing, LLC at market rates and four (4) units to be sold by the Grantor to households with low and moderate incomes in accordance with the terms and provisions of a certain regulatory agreement (“Regulatory Agreement”) by and between the Grantor, Dukes County Regional Housing Authority as the Monitoring Agent and Martha’s Vineyard Cooperative Bank (the “Bank”), as part of the Federal Home Loan Bank Board New England Fund Program (the “NEF Program”);
WHEREAS, pursuant to the Regulatory Agreement for this Project, Eligible Purchasers (as defined below) such as the Grantee are given the opportunity to purchase certain property at a discount of the property’s fair market value if the purchaser agrees to convey the property on resale to an Eligible Purchaser whether located by the Grantee, the Grantor or Monitoring Agent or, to the Grantor or Monitoring Agent, for a “Resale Price” as defined below; and
WHEREAS, the Grantor and the Grantee are participating in the NEF Program, and in accordance therewith the Grantor is conveying the Property to the Grantee at a consideration which is less than the unrestricted fair market value of the Property.
NOW THEREFORE, as further consideration from the Grantee to the Grantor and the Municipality for the conveyance of the Property at a discount in accordance with the Regulatory Agreement, the Grantee, his heirs, successors and assigns, hereby agrees that the Property shall be subject to the following rights and restrictions which are hereby imposed for the benefit of, and shall be enforceable by, the Grantor’s assignees and designees, the Monitoring Agent and the Municipality, acting by and through its Chief Elected Official.
1. Eligible Purchaser. The Property shall initially be sold to a household which has an annual income equal to or less than the Base Income as defined below (an “Eligible Purchaser”). The Base Income shall be equal to 80% of the median income, by household size, for the County of Dukes County, as published from time to time by the Department of Housing and Community Development (“DHCD”) and will be adjusted from time to time according to DHCD guidelines. Subject to the provisions set forth below, in the event the Grantee desires to sell the Property, the Grantee must use best efforts to find an Eligible Purchaser to purchase the Property. The term “best efforts” as used herein shall mean (A) the placement of an advertisement for sale of the Property stating the Maximum Resale Price, Grantee’s telephone number, and the phrase: “Sale of unit subject to certain guidelines and restrictions with respect to the maintenance and retention of affordable housing for households of low and moderate income.” and (B) the receipt of satisfactory evidence that the new purchaser qualifies as an Eligible Purchaser.
2. Resale Price. Subsequent to the initial sale of the Property, the Property shall be sold at a price equivalent to the Initial Price, plus (a) the cost of capital improvements to the Property and such unit’s pro rata share of the cost of capital improvements to common facilities, if any, (the “Base Price”); and (b) an amount equivalent to the Base Price multiplied by 0.417% per month (or 5% per annum) times the number of months (or years, as applicable) between (i) the initial sale of the Property (or incurring of a capital expense) and (ii) the subsequent sale of the Property (the “Escalation Amount”) (the Base Price plus the Escalation Amount shall be the “Resale Price”); provided, however, that in the event of a sale to an Eligible Purchaser, the Resale Price shall not exceed an amount established so that a household earning a Base Income for a household size appropriate for the Unit would pay no more than 30% of gross income for the sum of annual debt service for a mortgage loan of 90% of the Resale Price (including principal and interest), property taxes, insurance and any homeowner association fees. For purposes of this agreement, a family of four shall be deemed an appropriate size household for a two bedroom unit, a family of five shall be deemed an appropriate size household for a three bedroom unit, and a family of six shall be deemed an appropriate size household for a four bedroom unit. In the event that more than one Eligible Purchaser offers to purchase the property at the maximum Resale Price the Grantor shall choose by lottery between the qualified offerors and the Monitoring Agent shall promptly review and approve the eligibility of the selected purchaser.
3. Options to Purchase: When the Grantee or any successor in title to the Grantee shall desire to sell, dispose of or otherwise convey the Property, or any portion thereof, the Grantee shall first notify the Monitoring Agent and the Grantor in writing of the Grantee’s intention to so convey the property (the “Notice”). The Notice shall set forth the Resale Price of the Property. If the Property owner is unable to find an Eligible Purchaser within a 60-day period from the date the unit was put on the market, as determined by the date of the first advertisement for sale or the date an agreement was signed with a listing broker to market the Property (the “Initial Marketing Period”), then (i) the Grantor shall have an option to purchase the Property during a subsequent 30-day period for the Resale Price calculated as set forth above (the “Grantor’s Option); and if the Grantor does not exercise such option to purchase, then (ii) the Monitoring Agent shall have an option to purchase during an additional next subsequent 30-day period for the Resale Price calculated as set forth above (the “Agent’s Option”).
In the event the Grantor or Monitoring Agent, within their respective thirty (30) day period, notifies the Grantee (“Exercise Notice”) that said Grantor or Monitoring Agent is proceeding to locate an Eligible Purchaser or that the Grantor or Monitoring Agent shall exercise its right of first refusal to purchase the Property, the Grantor or Monitoring Agent, as the case may be, may purchase itself or cause to be purchased by an Eligible Purchaser the Property at the Resale Price within sixty (60) days of the date that the Exercise Notice is given. The Grantor shall, in the event it provides an Exercise Notice to Grantee, also provide a copy of said notice to Monitoring Agent. If more than one Eligible Purchaser is located by the Grantor or Monitoring Agent, the Grantor shall conduct a lottery or other like procedure to determine which Eligible Purchaser shall be entitled to the conveyance of the Property and the Monitoring Agent shall review and approve the selection process and the eligibility of the selected purchaser.
4. Sale to Ineligible Purchaser: If the Property owner is unable to find an Eligible Purchaser within the Initial Marketing Period, and neither the Grantor’s Option nor the Agent’s Option are exercised within the two (2) subsequent 30-day periods, then at the end of such 120-day period, such owner may sell the unit to any person, regardless of his/her income (an “Ineligible Purchaser”) for the Resale Price calculated as set forth above; provided that such Property shall explicitly remain subject to the affordability requirements set forth in this Deed Rider, which shall be applicable to any subsequent sale. In the event that more than one Ineligible Purchaser offers to purchase the property at the maximum Resale Price the Grantor shall choose by lottery or other like procedure between the qualified offerors and the Monitoring Agent shall review and approve the selection process. After review of a proposed sale pursuant to this paragraph, the Monitoring Agent shall issue to the selected Ineligible Purchaser a certificate in recordable form (the “Compliance Certificate”) indicating the Monitoring Agent’s approval of the sale. This Compliance Certificate shall be recorded in the Dukes County Registry of Deeds or registered with the Dukes County Registry District Office of the Land Court and such Compliance Certificate may be relied upon by the then owner of the Property and by third parties as constituting conclusive evidence that such sale has been made and approved pursuant to the requirement of this Deed Rider.
5. Delivery of Deed:
(a) If an Eligible Purchaser is selected to purchase the Property, or if the Grantor or Monitoring Agent elects to purchase the Property, the Property shall be conveyed by the Grantee to such Eligible Purchaser or to the Grantor or the Monitoring Agent, as the case may be, by a good and sufficient quitclaim deed conveying a good and clear record and marketable title to the Property free from all encumbrances except (i) such taxes for the then-current year as are not due and payable on the date of delivery of the deed (ii) any lien for municipal betterments assessed after the date of the Exercise Notice, (iii) provisions of local building and zoning laws, (iv) all easements, restrictions, covenants and agreements of record, (v) a Regulatory Agreement dated July 1, 1999 and recorded with the Dukes County Registry of Deeds in Book 770, Page 347, (vi) such additional easements, restrictions, covenants and agreements of record as the Grantor and the Monitoring Agent consent to, such consent not to be unreasonably withheld or delayed, and (vii) this form of Deed Rider which the Grantee hereby agrees to annex to said deed.
(b) Said deed shall be delivered and the purchase price paid (the “Closing”) at the Dukes County Registry of Deeds, or at the option of the Eligible Purchaser (or the Grantor or Monitoring Agent, as the case may be, if the Grantor or Monitoring Agent is purchasing the Property), exercised by written notice to the Grantee at least five (5) days prior to the delivery of the deed, at such other place as the Eligible Purchaser (or the Grantor or Monitoring Agent, as the case may be, if the Grantor or Monitoring Agent is purchasing the Property) may designate in said notice. The Closing shall occur at such time and on such date as shall be specified in a written notice from the Eligible Purchaser (or the Grantor or Monitoring Agent, as the case may be, if the Grantor or Monitoring Agent is purchasing the Property) to the Grantee, which date shall be at least five (5) days after the date on which such notice is given, and if the Eligible Purchaser is a purchaser located by the Grantor or Monitoring Agent, or if the Grantor or Monitoring Agent is purchasing the Property, no later than sixty (60) days after the Exercise Notice is given by said party.
(c) To enable Grantee to make conveyance as herein provided, Grantee may, if he so desires at the time of delivery of the deed, using the purchase money or any portion thereof to clear the title of any or all encumbrances or interests; all instruments so procured to be recorded promptly in accordance with standard conveyancing practice on Martha’s Vineyard.
(d) Water and sewer charges and taxes for the then current tax period shall be apportioned and fuel value and any common area charges or association fees, if any, shall be adjusted as of the date of Closing and the net amount thereof shall be added to or deducted from, as the case may be, the purchase price payable by the Eligible Purchaser, the Grantor or by the Monitoring Agent.
(e) Full possession of the Property free from all occupants is to be delivered at the time of the Closing, the Property to be then in the same condition as it is in on the date of the Grantee’s notice, reasonable wear and tear only excepted.
(f) If Grantee shall be unable to give title or to make conveyance as above stipulated, or if any change of condition in the Property not included in the above exception shall occur, then the Closing shall be extended for up to thirty (30) days and Grantee shall remove any defect in title or to restore the Property to the condition hereby provided for. The Grantee shall use best efforts to remove any such defects in the title whether voluntary or involuntary and to restore the Property to the extent permitted by insurance proceeds or condemnation award. The Eligible Purchaser (or the Grantor or Monitoring Agent, as the case may be, if either is purchasing the Property) shall have the election, at either the original or any extended time for performance, to accept such title as the Grantee can deliver to the Property in its then condition and to pay therefore the purchase price without deduction, in which case the Grantee shall convey such title, except that in the event of such conveyance in accordance with the provisions of this clause, if the Property shall have been taken by a public authority, then the Grantee shall, unless the Grantee has previously restored the Property to its former condition, either:
(i) pay over or assign to the Eligible Purchaser or the Grantor or Monitoring Agent, as the case may be, on delivery of the deed, all amounts recovered or recoverable on account of such insurance or condemnation award less any amounts reasonable expended by the Grantee for the partial restoration, or
(ii) if a holder of a mortgage on the Property shall not permit the insurance proceeds or the condemnation award or part thereof to be used to restore the Property to its former condition or to be so paid over or assigned, give to the Eligible Purchaser, Grantor, or to the Monitoring Agent, as the case may be, a credit against the purchase price, on delivery of the deed, equal to said amounts so retained by the holder of the said mortgage less any amounts reasonable expended by the Grantee for any partial restoration.
6. Resale and Transfer Restrictions: Except as otherwise stated herein, the Property or any interest therein, shall not at any time be sold by the Grantee, the Grantee’s successors and assigns, and no attempted sale shall be valid, unless:
(a) the aggregate value of all consideration and payments of every kind given or paid by the Eligible Purchaser (as located and defined in accordance with Section 1 above), the Grantor or the Monitoring Agent, as the case may be, to the then owner of the Property for and in connection with the transfer of such Property, is equal to or less than the Resale Price for the Property, and (i) if the Property is conveyed to an Eligible Purchaser, and a certificate (the “Eligible Purchaser Certificate”) is obtained and recorded, signed and acknowledged by the Monitoring Agent which Eligible Purchaser Certificate refers to the Property, the Grantee, the Eligible Purchaser thereof, and the Resale Price therefor, and states that the proposed conveyance, sale or transfer of the Property to the Eligible Purchaser is in compliance with and subject to this Deed Rider and the Regulatory Agreement; (ii) if the Property is conveyed to the Grantor and Monitoring Agent and a Certificate (the “Option Purchaser Certificate”) is obtained from the Monitoring Agent and signed and acknowledged by the Grantor or Monitoring Agent and the Grantor or Monitoring Agent and recorded with the Registry of Deeds, which Option Purchaser Certificate refers to the Property, the Grantee, the Purchaser, and the Resale Price for the Property and states that the proposed conveyance, sale or transfer of the Property to the party is in compliance with and subject to the rights, restrictions, covenants and agreements contained in this Deed Rider; or (iii) if the Property is conveyed to a third party in accordance with Paragraph 4 hereof, the Monitoring Agent executes and delivers the Compliance Certificate in accordance with said Paragraph 4;
(b) Any good faith purchaser of the Property, any lender or other party taking a security interest in such Property and any other third party may rely upon a Compliance Certificate, an Eligible Purchaser Certificate or an Option Purchaser Certificate referring to the Property as conveyance of the Property, provided, in the case of an Eligible Purchaser Certificate and an Option Purchase Certificate the consideration recited in the deed or other instrument conveying the Property upon such resale shall not be greater than the consideration stated in the Eligible Purchaser Certificate or the Option Purchaser Certificate as the case may be. If the Property is conveyed to the Grantor or Monitoring Agent, any future sale of the Property by the such party shall be subject to this form of Deed Rider.
(c) Within ten (10) days of the closing of the conveyance of the Property from Grantor to Grantee, the Grantee shall deliver to the Monitoring Agent a true and certified copy of the Deed of the Property, together with information as to the place of recording thereof in the public records. Failure of the Grantee, or Grantee’s successors or assigns to comply with preceding sentence shall not affect the validity of such conveyance.
(d) Notwithstanding anything to the contrary contained in this Deed Rider, the Resale Price shall not be less than the purchase price which Grantee paid for the Property plus costs of approved capital improvements and marketing expenses.
(e) The Grantee understands and agrees that nothing in this Deed Rider or the Regulatory Agreement in any way constitutes a promise or guarantee by the Grantor or the Monitoring Agent that the Grantee shall actually receive the Resale Price for the Property or any other price for the Property.
7. Restrictions Against Leasing and Junior Encumbrances: The Property shall not be leased, refinanced, encumbered (voluntarily or otherwise) or mortgaged without prior written consent of the Monitoring Agent, provided, however, that this provision shall not apply to a first mortgage granted in connection with this conveyance. Any rents, profits, or proceeds from any transaction described in the last preceding sentence which transaction has not received the prior written consent of the Monitoring Agent shall be paid to and be the property of the Monitoring Agent. In the event that the Monitoring Agent, in the exercise of its absolute discretion, shall consent to any such lease, refinancing, encumbrance or mortgage, it shall be a condition to such consent that all rents, profits or proceeds from such transaction which exceed the carrying costs of the Property as determined by the Monitoring Agent in its sole discretion shall be paid to and be the property of the Monitoring Agent.
8. Rights of Mortgagees: (a) Notwithstanding anything herein to the contrary, but subject to the next succeeding paragraph hereof, if the holder of record (other than the Grantor or any person related to the Grantor by blood, adoption, or marriage, or any equity in which the Grantor has a financial interest (an “Interested Party”) of a first mortgage granted to a state or national bank, state or federal savings and loan association, cooperative bank, mortgage company, trust company, insurance company, or other institutional lender or its successors or assigns (other than an Interested Party) shall acquire the Property by reason of foreclosure or similar remedial action under the provisions of such mortgage or upon conveyance of the Property in lieu of foreclosure, and provided that such holder has given the Monitoring Agent and the Grantor not less than (60) days prior written notice of its intention to foreclose upon its mortgage or to accept an conveyance of the Property in lieu of foreclosure, the rights and restrictions contained herein shall not apply to such holder upon such acquisition of the Property, any purchaser (other than an Interested Party) of the Property at a foreclosure sale conducted by such holder, or any purchaser (other than an Interested Party) of the Property of such holder, and such Property shall thereupon and thereafter be free from all such rights and restrictions. During the aforesaid 60 day period the Monitoring Agent and the Grantor shall have the right, but not the obligation, to purchase the mortgage for the amount due thereunder (including applicable expenses), and in such event the holder of said mortgage shall deliver to the purchaser such assignments and other evidentiary documents as the purchaser shall reasonably request. The Monitoring Agent and Grantor shall communicate to each other so as to facilitate such purchase, but in the event of conflict, the Monitoring Agent shall have the right to purchase the mortgage.
(b) In the event such holder conducts a foreclosure or other proceeding enforcing its rights under such mortgage and receives sale proceeds, net of expenses of sale, in excess of the greater of (i) the sum of the outstanding principal balance of the note secured by such mortgage plus all future advances, accrued interest and all reasonable costs and expenses which the holder is entitled to recover pursuant to the terms of the mortgage and (ii) the Resale Price applicable on the date of the sale, such excess after repayment to the Grantee of the Grantee’s equity investment in the Property (the “Equity Investment”) shall be paid to the Monitoring Agent in consideration of the loss of the value and benefit of the rights and restrictions herein contained held by the Monitoring Agent and released by the Monitoring Agent pursuant to this section in connection with such proceeding (provided, that in the event that such excess shall be so paid to the Monitoring Agent by such holder, the Monitoring Agent shall thereafter indemnify such holder against loss or damage to such holder, resulting from any claim made by the mortgagor of such mortgage to the extent that such claim is based upon payment of such excess by such holder to the Monitoring Agent in accordance herewith, provided that such holder shall give the Monitoring Agent and the Monitoring Agent prompt notice of any such claim and shall not object to the intervention by the Monitoring Agent in any proceeding relating thereto.). The Monitoring Agent may determine the Resale Price in good faith based on the size of the Property and the records available to it. If the holder disagrees with such value, the holder may obtain a second opinion, at the holder’s expense and the Resale Price shall be equal to the average of the two opinion amounts. To the extent the Grantee possess any interest in any amount which exceeds the Equity Investment which would otherwise be payable to the Monitoring Agent under this paragraph, to the fullest extent permissible by law, the Grantee hereby assigns its interest in such amount to said holder for payment to the Monitoring Agent.
9. Covenants to Run with the Property: (a) The Grantor and the Grantee, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby grant and assign to the Grantor, the Monitoring Agent, and the Monitoring Agent’s agents, successors, designees and assigns the right to purchase the Property as set forth herein, and to the Grantor or the Monitoring Agent and the Municipality the right to enforce the rights , covenants and agreements set forth in the Deed Rider. The Grantor and the Grantee hereby grant to the Monitoring Agent the right to enter upon the Property for the purpose of enforcing any and all of the restrictions, covenants and agreements herein contained, and of taking all actions with respect to the Property which said party may determine to be necessary or appropriate, with or without court order, to prevent, remedy or abate any violation of the restrictions, covenants and agreements set forth herein. The rights hereby granted to the Monitoring Agent and the Municipality shall be in addition to and not in limitation of any other rights and remedies available to the Grantor or the Monitoring Agent or to the Municipality for enforcement of the restrictions, rights, covenants and agreements set forth in this Deed Rider. It is intended and agreed that all of the agreements, covenants, rights and restrictions set forth above shall be deemed to be covenants running with the Property and shall be binding upon and enforceable against the Grantee, the Grantee’s successors, designees and assigns for a period which is the shortest of (i) ninety-nine years from the creation of the restriction, (ii) upon the recording of a Compliance Certificate, or (iii) upon the recording of an Eligible Purchaser Certificate and a new Deed Rider executed by the Eligible Purchaser referenced in the Eligible Purchaser Certificate. The Monitoring Agent shall be entitled to a fee of one-half of one percent of the established maximum sale price of the unit to the Grantor or an Eligible Purchaser for the services performed according to the Monitoring Services Agreement (and referenced in the Regulatory Agreement). This fee shall be paid by each grantee as a closing cost at the time of closing.
(b) This Deed Rider and all of the agreements, restrictions, rights and covenants contained herein shall be deemed to be an affordable housing restriction as the term is defined in M.G.L. c. 184, §31, 32, and 33.
(c) The Grantee intends, declares and covenants on behalf of itself and its successors and assigns (i) that the Deed Rider and the covenants, agreements, rights and restrictions contained herein shall be and are covenants running with the land, encumbering the Property for the term of this Deed Rider, and are binding upon the Grantee’s successors in title, (ii) are not merely personal covenants of the Grantee, and (iii) shall bind the Grantee, its successors and assigns and enure to the benefit if the Municipality and the successors and assigns for the term of the Deed Rider. Grantee hereby agrees that any requirements of the law of the Commonwealth of Massachusetts to be satisfied in order for the provisions of this Deed Rider to constitute restrictions and covenants running with the land shall be deemed to be satisfied in full and that any requirements of privity of estate are also deemed to be satisfied in full.
(d) Without limitation on any other rights or remedies of the Grantor, the Monitoring Agent, the Municipality, their agents, successors, designees and assigns, any sale or other transfer or conveyance of the Property in violation of the provisions of this Deed Rider, shall, to the maximum extent permitted by law, be voidable by the Grantor or the Monitoring Agent, the Monitoring Agent’s agents, successors, designees and assigns by suit in equity to enforce such rights, restrictions, covenants, and agreements.
10. Notice: Any notices, demands or requests that may be given under this Deed Rider shall be sufficiently served if given in writing and delivered by hand or mailed by certified or registered mail, postage prepaid, return receipt requested, to the parties hereto at the addresses set for below, or such other addresses as may be specified by any party by such notice.
Municipality: Town of West Tisbury
P.O. Box 278
West Tisbury, Massachusetts, 02575
Grantor: Island CoHousing, LLC
P.O. Box 4376
Vineyard Haven, Massachusetts 02568
Grantee:
Monitoring Agent: Dukes County Regional Housing Authority
P.O. Box 4538
Vineyard Haven, Massachusetts, 02568
Any such notice, demand or request shall be deemed to have been given on the day it is hand delivered or mailed.
11. Further Assurances: The Grantee agrees from time to time, as may be reasonably required by the Monitoring Agent and the Municipality, to provide a written statement, signed and, if requested, acknowledged, setting forth the condition and occupancy of the Property, information concerning the resale of the Property and all other information pertaining to the Property or the Grantee’s eligibility for and conformance with the Regulatory Agreement for this Project.
12. Waiver: Nothing contained herein shall limit the rights of the Monitoring Agent and/or the Municipality to release or waive, from time to time, in whole or in part, any of the rights, restrictions, covenants or agreements contained herein with respect to the Property. Any such release or waiver must be made in writing and must be executed by the Monitoring Agent or designee.
13. Severability. If any provisions hereof or the application thereof to any person or circumstance shall come, to any extent, to be invalid or unenforceable, the remainder hereof, or the application of such provision to the persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be valid and enforced to the fullest extent permitted by law.
14. Responsibility of the Monitoring Agent. The Monitoring Agent shall not be held liable for any action taken or omitted pursuant to this Deed Rider so long as it shall have acted in good faith and without gross negligence.
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15. Indemnity. The Grantor indemnifies and holds harmless the Monitoring Agent against all damages, costs and liabilities, including reasonable attorney’s fees, asserted against the Monitoring Agent by reason of its relationship with the Project pursuant to this Deed Rider and not involving claims that the Monitoring Agent acted in bad faith and with gross negligence.
Executed as a sealed instrument this _______ day of _____________, 20__.
Grantor:
ISLAND COHOUSING, LLC
By ______________________
Name
Title
Grantee:
By ______________________
Name
Title
COMMONWEALTH OF MASSACHUSETTS
County of Dukes County, ss _______________, 20__
Then personally appeared the above-named Island CoHousing, LLC, Grantor, and acknowledged the foregoing instrument to be his/her free act and deed, and the free act and deed of Island CoHousing, LLC, before me.
____________________________
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
County of _____________, ss _______________, 20__
Then personally appeared the above-named _______________, Grantee(s), and acknowledged the foregoing instrument to be his/her free act and deed, before me.
____________________________
Notary Public
My commission expires: