HomeMy WebLinkAboutSmolak & Vaughan Correspondence re Agmt and Deed Rider.2004.9.24 - Correspondence - 0000 Meetinghouse Road 9/24/2004 SEP-24-2004 10:43 From; To:9766889542 P.2/27
SMOLAK & VAUGHAN LLF
Attorneys at .Law
.ieft'ersnn Office Park
1 8 o Turnpi.l a Street, Suite 20 ,.3
North Andover, Massarhus0114 018.45
Telephone 978-327-,Fj=)
FOP,simi.le 978-327-5219
John T. Sunyluk,Esq.
Direct 978.327.5215
Email:jrmolak(k j8nxolakVaughan,com
Septcauber 24,2W4
VIA FAX AND E-MAIL
Thomas J. Urbelis, Esq.
Urbelis ��. Pieldsterl, l.:f..P
155 Federstl Street
Boston,Massachusetts 02110
RE: Approval of Norm ol'Rogulatory Agreement and Deed Rider
Comprche nsive Penirit,detect May 24, 2(1R)2
ProjN.L: Meetinghouse Commons
Property: South Bradford Street,North Andover
Applicant& Owner: Meetinghouse :omingns'J I.0
Dear Attorney Urbelis:
This firita represents the Applicant, Wetinghotut e C ommows TLC, regarding the
above-referwiced project, to accordance with the Comprehensive Pennit decision, I am
submitting a Form of Regulatory Agmement and need Rider(Now Rnglaud'fuwtd)for
'Gown Cou,isc-I and Zoning Board of Appeals review and approval,
Since the; next meeting of.the Zoning Board of Appeals is on October 12, 2f1(14, 1
roquost that you review and approve the attached forms of Regulatory Agreement and
Deed Rider, end provide the.Board with a letter confirnning your approval of the some as
to form for the Meetinghouse Commons projcc;t. The Comprehensive Permit Decision
does 1101 require approval of the draft Monitoring Service N Agreement, but we have,
included the snipe for your records. The Monitoring.Agreentent will be cxcculed by
CHAPA,and the Applicant shortly.
As to the Regulatory Agreement, the enclosed form is substantially similar to the
font» of regulatory agreement you had approved for the; Kiltredgc Crowing rroject,
subject to certain modifications to the Discount Rate and Resale provisions of the draft.
Changes were made to these provision,Imeause in uur expericruxs anti in the experience
of the monitoring agent, LHAPA, the Discount Rate applied to the salts price fora resale
unit Would sotnetinics result in a resule.price which is in oxeuss of that permitted under
the affordability provisions of Chapter 40B, ACcordingly,we have mrulified these
provisions to provide that.the Resale Prig shall be determined by CHAFA and that such
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BOARD OF APPEALS
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RMOLAK& VAUGHAN LLP
Thomas J. Urhelis, Esq,
September 24, 2004
price shall be in aCeordauu.with(lie boot the strrtutnry arrordability provisions under
Chapter 40.13 and with the New England Fund Program. These changes are cCmSistent
with the'NFF Program,Chapter 4013 and the Comprehensive Permit Decision, and are
also consistent with changes mude to a Regulatory Agroonaent and Deed Rider approved
with respect to a 278-unit Comprehensive Permit PrOJct't Currently being developed by
Pulte Homcs in Orafton where I had served as counynl to the londcr oil Ihat Irrojcel.
Please contact me immediately should yoir need additional information of if you
have any questions. Thunk you for your' assistance with this matter.
Very truly yours,
/J ohAn
�JonT. Smnlcik
c4.Towii (>l'North Andover Zoning Hound of Appeals
Thomas D. Zahoruiko, Manager, Mc ulinghouse Comnnons, f'LC
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i
G1J 0RV At'"l EMMENT
[FHLAA-Nr?,W rtWLAND FUND]
'For Ownership Projects
i
This Regulatory Agreement (this"Agreement")i9 made this _ day of Sep tetnher,
2W4 by Meetinghouse Commons,LLC., a Massachusetts limited litabi&company having rin
address gat l2t �`�rter Firld Rosil, Ni�r11i_AEtil�)v4;t��assachusctts 01845 ("Developer")and
,blue Five Cent%Savinks Bank,of 210 Essex.�tkc , Salem,Massachusetts. 01.970-Attn;_lylA
Seni r Vice President(the"Dank"),.r member institution or the Federal Hone I-Amn
Sank of Boston.
BACKGROUND:
A. The Developer intends to construct an "tLH-unit homeownetship development on a
32,02-avro site off S.oulb bradf-Qrd-grid U• 1 ir•ct in h Andover, Massachusetts, more
particularly described iii Exhibit A attached to and made a port of this Agreement(the"Project");
B. The Developer has maeivod a comprehensive permit (tiro"Comprehensive
Permit")from the 'Zoning Hoard of Appeals for the Town of North Andover(the"Municipality")
under Chapter. 40 of the Massachusetts General Taws, which permit is recorded at the Essex
Nnrtti T)istrict Registry of Deeds in Rgok 7200, Page J48,(the"Registry").
C. The C;oinprchonsive Minit has specified that 22 units,or 25 %of the total ugits
in the,Project will be al MdablO uiYits(the"Affordable Units")which will be subject to this
Regulatory Agroomont to rostriot tho solo of the Affordablo Units to qualifying low or modorato
incow.incotno buys-rs purstiant to (tic FudCrat How Lowe Bw)k of Boston's New England Fund
("NEl4")Program and Chapter 40D.
D. Pursuant to the terms of this Regulatory Agreement, the Affordable Units will he
sold to.households earning no more than eighty percent(800/0)of the median income, by
househnid size, for the l<.awrence.AAA-NH PMSA Area (the"Rose become")as published from
time to time by the Department of Housii)g and Community;Development of the Commonwoolth
Of Massachusetts or sUcccsSor agoncy ("DHC D"),
E. The Project is being tinanced under the Federal I•lomLA i.,oan Flank or Roston's
NKw England Fund("NEF-)and the NEI7 requires that the Developer provide the number of
Affordable Units described above;
i
F. Pursuant it) the requirements of the Comprehensive Permit and this Regulatory
Agreement,the.l:)eveloper has agreed to retain Citizens' Housing and Planning Association,'Inc.
(thc"Monitoring A,g(mt")to porfonn monitoring wed enforcement services mgcucling compliances
of the; Projc•ei with the Affordability Requirement.and compliance of the,Developer with the
Limited Dividend Requirement.
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BOARD OF APPEALS
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C. The Affordable Units shall he spec:ificilly designated in the Master Deed
establishing at Meetinghouse Cominot15 Condominium, which Master Deed shall be recorded at
t
the Registry prior to occupancy of the Units. The Affordable Units are shall be referred to as the
Affordable Units in the Master Deed.
I
NOW,THEftl;FO1W, in consideration of the agrcenients and covenants set forth in this
Agre-ement.and other good and valuahlc consideration, the reccIpt and sufficiency of which are,
acknowledged,the Developer and the Bank agree and covenant as follows:
1. Unit_Designation. The distribution of the Affordable Units by unit size shall be as
set forth below:
2BR
Number of.Units 22
Units/Lots Nos,
Initial Market Appraised Value $
Initial Affordable Price (the initial $
Certified Sale Price)
The Certified Sale Price of an Affordable Unit shall be tho price: such that a 11olisi hold eaming
the Bnse Income for a family of four would pay no more than 30%of gross income;-for tho suirii
of anntittl debt service;on a illortgagi of 95% of the,Ctrrtificd Sales Prim(including principal and
interest at eurtont interest rates)plus property taxes, insurance and any
coiido111lnieiall/1yo1114owtic.r association lees.
2. Affordability. t?xcept as specifically provided in the Deed bider attached as
Exhibit B, the Affordable Units,shall he sold to households w1liCh have an annual in0)111 s equal
to or less than the Maw Income as adjusted from time to time according to llHCD guidcliaos.
The.first sale of an Affordable Unit by the Developer shall be at a prim not in
excess of the Initial Affordable Price set forth in Section 1 of this Agreement for that.Affordable
Unit. Subscquont sales of Affordablo Units shall be for,sale prices as determined by the
Monitoring Agent cinder the dc1'initiotis set firth in thix svetion and in section .1, above (the
"Maximutli Salo Prioo").
3. l edRiders. At the time of sale of the Affordable Unilc by the Developer,the
Developer shall cxccutc and shall as a condition of sale cause the purchasers of the Affordable;
Units to execute a daed rider substantially in the form of Exhibit B attached to and inado a part of
(his Afire; aunt(each a"Deed Rider"). Fach Deed Rider shrill require 1110 unit owner at the time
Ito/sho cicsires to sell the Affordable Unit to notify the Monitoring Agoat so that the Monitoring
AgOt Can make a determination of the Mnxinnijn Resale Prio , The owner of the Affordable
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Unit must thereafter offer the unit to the Municipality at the Maximum Rc;salc.Price. Thu.
Municipality may or may not cxtrctie itti right-of-first refusal at Its sole discretion, and if not, thr.
Nellcr must.final a purchaser who meets the, incxime guidelines. .
if, the Affordable Unit owner is unable to find an eligible purchaser within a 120
dray period from the date the Affordable t.lnit 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 Ilse Affordable Unit, the seller can sell the Affordable Unit to any person, regardless of
his/her income and at any price,free of any future resale restrictions,provided that the dif#eroncer
between the actual resale price and tlae Maximum Rcsalc Priem at the tine of sale shall be paid to
the, Municipality for deposit in an affordable hosing fund to be used by the Municipality to
support father affordable housing within the Municipality.
i
The Deed Rider requires the Affordable Unit owner and zany purchaser to execute
at the time of resale a simllsar need Rider which shall be winched to ood made a part of the deed
from tlae owner to the.purchaser, so that tiles affordability of each Affordable Unit will N;
preserved each time that subsequent resole of the Affordable Unit occurs during the period of
affordability specified In this Agfecntcl%
4. f]iviAt;tW-LWujtaathop. Developer agrees that the profit to the Developer or to the
partners, sharuholdcts,or other owners of Developer or of the ProjUr;t!Tull nut exceed twenty
percent(20%)of total development costs of the Project,exclusive of development tees(the
"Allowable Profit"). Upon issuanco ul'a linul Certificate ofOcc;upancy Cor all of the units in the
Project, the Developer~hall deliver to the Monitoring Agent an itemized statement of total
development costs together with a st.ateoient of gross sales revenues from the Project rmivod by
the DevOoper to date certified by the Developer("Certified Costs raid litcomc StatLnaacnt"). Wall
units in tlae Project which are offewd for sale lave gaol been sold as of the date the Certified Cost
and Income Statement is delivered to the Monitoring Agent, tlac Developer shall at least once i
every ninety(90)days thoresarter, until such time sas all of the units which are offered for sale are
sold, deliver to tine Monitoring Agent an updated Certified Cost send Yncmme Statement. After all
milts in the Project which are offered ftor ,s.0r, have been sold, the Developer shall deliver to tile,
Monitoring Agent a final Certified Cost and Income Statement. All profits from the Projwt in
excess of thu Allowable Profit~hall be paid by the Developer to the Municipality for deposit in
an affordable housing fund to he used by the M.unicipol.ity for the purposes of one ouraging,
creating tar suhsidiiinb the constrtaction or rehabilitation of affordable housing elsewhere it) the
Municipality. The Allowable Profit shall be measured as the e;XWSQ,Of certified income, less any
brokerage fees and commisslons and selling expenses over certified costs and less all
development costs related to the Project including cosui incurred by the developer as
admitiistralive:and overhead expenses which do not exceed four percent (40/6)of total
developnaeat costs, excluding such wiministt ative and overhead costs. Acceptable developarnctat
costs include, hill are, not limited to, the cost of site acquisition,defined as that land value which
can he underwritten by tho Par jcct and which can be sufpurtcd by the subsidizing entity's
appraisal upoaa which Its constructions loan is;hamecl_
S. Affirinaative Market P& The Developer shall not discriminate,on the basis of races,
creed, color,sox, agt:,handicap, marital status,nationnI origin or any other basis prohibited by
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law in the Sel.cetion of flic,buyers for the Affordable Units, 'l'lic Developer shall affirmatively
market the Affordable Units to minority households through direct outreach c('forts to lc,tc,,tl
churches,social service and civic organizations as well as local and area-wide newsprint media
where,minority households are most likely to be contacted, 'Phis outreach effort must continue
for a peyiod of at least 60 days,prior to the sel"tiou of buyers for the Aff.)rd+hle Units. The
1 evelopor agrees to maintain for at least five(5)y0ars following the Sale of the Affordable
Units,a record of all newspaper ads, outreach letters truntilutions, leaflets and any other outreach
efforts which may he inspected by the Monitoring Agent or the Municiptttity,
6. Recording. Upon execution of this Agreement,the Developer shall immediately
cause this Agreement to be recorded Or filed with the Registry, 'Upon recording and/or filing,as
applicable, the Developer shall immediately transmit to the]sank and the Monitoring Agent
evidence of such recording and/or filing,
j
7, re>entatinns, `l,'ltc Developer represents, covenants i►nd warrants as follows-
(a) The Developer(i) is a limited liability company duly organized under the laws
of the Commonwealth of Massachusetts,, Sind is qualified to transact business
under the laws of this state, (ii) has the power and authority to own properties and
assets and it)orry on its business as now tieing conducted,and (iii)has fiat legal
right, power and aut.hofity to execute and deliver this Agreement,
(b) The execution and performance of this 4reement by the Developor(i)will not
violate Or, as applicub1c, has Hat violertcd tiny provision of law, rule or regulation,
or any order of any courl or other agency of governnte ntW body, and(ti)will not
violate or, as applicable, has not violated any provision of any indenture,
agreement,mortgage, mortgage note nr other instrument to which the Developer
is a party or by which it or the Project is bound,and(iii)will not result in the
creation nr imposition of any prohibited encumbrance,of any nature.
(c) The Developer will, at the time of execution and delivery of this Agreement, have
good and marketable title to the Project free and clear of,any licit or encumbrance,
subject to the encombrances ercated pumnant to this Agreement,arty loan
documents relating to the Project,or ether permitted oncurnbranc:e.s.
t3, rovernins Law/A►tnPndment, fever. slit This Agreement shall be governed by
the laws, of the Catnmoriwealth of Massachusetts. Any amendments to this Agreement must be
in writing And executed by all of the parties to this Agreement. The invalidity of any clause,
part,or provision of this Agrecmen(Shall not affect the validity of the remaining portions of this
Agreement. To the event of any ambiguity or dispute m to the interpretation of any provisions in
this Agreernwil,then this Agreement Shall be interpreted in accordance with the generally
accepted practices at.the time Of issuaatc;u of the pjrgicct eligibility letter.
9. Monitories A ettt. The Developer shall retain the Monitoring Agent for purposes
of monitoring Developer's perkwmance tuaeler this Agreement pursual)t to an agreement
acceptable to the;Monitoring Agent and the Bank. All notices and ruports required to be
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submitted under this Agreement shall be subrtiitted directly to the Monitoring Agent. The.
Monitoring Agent shall have aulhot-ity to act in all matters relating to this Agretilionl,
10. Nut)As. All notices to he given pursuant to this Agreement shall be in writing
and shall be deemed given when delivered by hand or when mailed by certified or registered
mail, postage prepaid,return receipt.requested, to the parties to this Agrecane tt at tits addresses
set.forth below,or to such other place as a party may from time to ti.nie designate by written
notice with a copy to the Monitoring Agent,
Developer,
Meetinghouse Commons, LLC:
121 carier rield Road
North Andover,Massachusetts 0184. ,!
At.tn: Thomas.D. 7nhomiko, Manager
Bank: j
.Salem Five Cents Savings Batik
210 Esqex Street
Salem,Massachusetts 01.970
Attn: Mark H. LAf, Senior Vice President
Monitoring Agent:
Citizens Housing and Planning Association, Inc.
I R Tremont Street
Boston,Massachusetts 02108
Attention: ExcCutivo Director
'11. 1t'.l'11t. The. lorryi of lhis Agreement shall be.until ninety-nine years ternlivatills
with respect to each of the Affordahle Units on the date on which the aced Rider attached as
Exhibit B is no longer applicable.to each Affordable Unit.
Upon the expiration of the terra of this Agrecntunt,each of the then owners of
Affordable Units shall he bound to pay to tilt;Municipality(a)all proceeds of sale at the time of
salt; in excess of the Maximum Sale Price of such unit at the time of sale ati if tincli unit were Still
subject to the provisions of.this Agrccinent, which sale shall be at arms length and for tite fair
market value of such unit,or(b)a payment by refinancing or front other sources to tlrc
Municipality in the same amount as the Municipality would receive if such unit were still iubjeLt
to tine provisions of this Agreement in the event of a sale at fair market value; oil the elate of
payment the expiration of the term(if this Agreement, `f'he•provisions of this section of this
Agreement.thrill survive the expiration of the term of. this,Agreement.
1.2. SucUsSorti and Assigns. The Developer intends,declrati:s and covenants on
behalf of itself and its successors rind tissigns(i) that this Agreement and the covenants,
agrcemuntn and restrictions contained in this Agreement shrill be,and are covenants runiflag with
the land, encumbering the Project.for the tenn of this Agreement, and are binding,upon the.
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Developer's successors in title, (ii)are slot merely personal covenants of the Developer.and (iii)
shall bind the Developer, its successors and assigns for the term of this Agreement. Developer
{green, that any and all requirements of like laws of tlic Conlu wealth of ass se tts to be
satisfied in order for the provisions of this Agreement,to Constitute rostrictions and coventttats
running with the land shall he deemed to he salin5ed in full and that any requirements of privity
of estate are aka deemed to he satisfied in full.
13. Deftttilt, If any default,V1Onflon or breach by the Developer under this
Agrccment is not cured to the satisfaction of the Monitoring Agent within thirty (30) days after
notice to the Developer thereof,then the Monitoring Agent may send not.i.fit;ation to the Bank
and the FHLBB that the Developer is in violation of the tern~and cundititms of this Agreement.
The Hank and/or the FHL13B may exercise any remedy available to them, including calling its
advance under the N'EF or incroasing tlrc lntcrest rate on such advance. The Municipality or the
Monitoring Agent may also oxercise any legal remedy available to theni, The Developer shall
pay all costs and expenses,including legal fees, incurred by Monitoring;Agent in enforcing,this
Agreement, and, in the event of any action by the Monitoring Agent against the Developer, the
Monitoring Agent shall be entitled to seek an attachment againtit the Developer's property
including,without li'mitntioil, its interest in the Project. The Monitoring Agent may perFect a lien
on the Project by recording/filing one of more certificates setting forth the amount of,the costs
and expenses duc and owing in [tic Registry. A purchaser of the Project of any lx)rtion of it Ahall
be liable for the payrneiit of any unpaid costs and expenses which were the subject of a
recorded/filed Ceihificttte prier to the purchaser's acquisition of the Project nr nort.ion thereof,
14. Mortgagee Cam. The Developer represents and warrants that it has obtained
the Consent or subordination of all existing mortgagees of the Project to the execution and
recording of this Agreement anti to the terms and condidom or this Agreement and that all such
mortgagees have executed a consent or subordination to this Agreement which shall be
recorded/filed herewith,
15. Rcsgonsibility of Monitoring A cg_nt. The Monitoring Agent shall not be hold
Whic for any action taken or omitted under this Agreement so long as it shall have acted in goon]
faith and-without gross n4gligc1100.
16, latclernnification. The Developer,for itself and its successors and assigns,agrees
to Indemnify and hold harmless the Monitoring Agent againtit all damage~, costs and liabilities, I
including reasonable, attorney's fees,asserted against the Monitoring Agent by reason of its
relationship to the Project anti under this Agreement and not involving the Monitoring Agent
acting in httd faith and with gross negligence,
17, Arnendiitents, This Agrccment shall not be amended without written Consent of
the Monitoring Agent.
IN WITNESS WHEREOF, the parties to this Agreemem have caused this Agreement to
be executed a%a sealed instrument as of, the elate first above.written.
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}
DEVELOPTIP: BANK:
MEETINGf(-1:OUSP COMMONS, LLC SALEM FIVE CENTS SAVINGS BANK
BY...,. .,_. By:
Thonin D. Zaltondko Mark 11. LOT
Its; Manager Ct.s: ,Senior Vice President
COMMONWEALTH OF MASSAC'HUSEYI'S
On this_day of 2004, heforo ma, Ric ussdmsigwed notary public,
personally appeared Thomas R Zahoruiko, proved to me through satisfactory evidence of
identification,which was❑driver's license, ❑personally known to me,or U personally kisown to
.,d party witness personally know" to me, to he the person whose name is sigsrcd oii the
preceding or attached document, and acknowledged to me that he signed it voluntarily for its
stated purpose as Manager,for Meetinghouse Commons, LI,(',a limited liability company.
Notary Public
COMMONWEALTH OF MASSACHUSE'ITS
'SS
On this_day of , 2004, before nic, the undersigned notary public,
personally appeared proved to are through satisfactory evidence of
identification,which was 0 driver's license,I I personally known to me,or I I personally known to
.IA party witness personally known to sac, to be the p4fson wisosc name is signed oil thv.
preceding or attached document, and acknowledged to me that he signed it voluntarily for iL.
stated propose as Managur, for„ LLC, a limited liability company,
Notary Public
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EXHIBIT A
I RCYAL DESCRIPTION
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EXHIBIT B
DEED RIDER
For
FHLBB Now England Fund
Ownership projCCI
(annexed to and made part of that certain deed(the"Deed")
From MCC
To ("Grantee")
Dated
WUNESSETI-I:
WHEREAS, a(Ximprehensive permil,for land in the City/Town of North Andover,
Massachusetts (Ibe"Nitmicipality")has been grantcd.under Chapter 40B ot'M.01. for the
purpose for CouNlrueLing L8 residential units (the"Project")comprised of 66 units to be sold by
the Grantor at market rate~,22 units to he sold to households with low And moderate incomes in
accordance with the lerms and provision of the Regulatory Agreement by and between
Meetinghouse Commons, T.T.0(the"Developer")and Salem Five (:.k,)Als-Sayjjjg Bank(the
Bunk"),ws part of the Now England Fund Program(the"Regulatory Agreement') which
Regulatory AAreewent is dated SepiernbUr_,-2()Q4 and N TeWrded/filCd with the.E-,ssex North
District Registry of Deeds (thr,"Registry") in Book at Page
WHEREAS, thc rights and restrictions granted in this Rider to the Municipality serve. (lie
public's interest. in the creation and retention ol'all'ordable housing for persons and fffiiiilies of
low arid moderate income,and in the restricting the resale price of property in order to assure;its
affordability by future low and moderate income pure haser.;
WHEREAS,pursuant to the Raguld(C)Fy Agreement,eligible purchasers such as the
Grantee are given tho opportunity to purchase certain property atan affordable price if IN:
purchaser agrees to convey the property on resale to an eligible purchaser located by the
Municipality or, to the Municipality, for a"Maximum Resale Price"as spocifie.d in thim Rider
and in the Regulatory Agreement;
WHEREAS, the GTantor, and the Grantee are participating in the NEF Program, kind in
avx*rdance with the NEF Program the Grantor Is convoying that certain real property more
particularly described in the Deed to which this,Deed Rider is attached("Property") to the
Grantee at a considuration which i,% less than the appraised value of the Property; and
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WHEREAS, the.Maximum Resale Price sliall be determined as that price which is
affordable to an eligible purchaser whose incontc does not cx.ccad the)3asc Mcorlta as described
in the.Regulatory Agreement.
NOW THEREFORE,as further consideration front the Grantee to the Grantor and the.
Municipality for tht couvuyarrce of the Property at a n aff'orJable price in accordance with the
Regulatory Agrvwmerit, the Grantee, his/her heirs,, guecegsors and assigns, agree~ that the
Property shall be,subject to the following rights and restrictions which are imposed for the
be:nelit of and shall be eniiireeahle by,the Grantor's ast;ignees and designees,or the Monitoring
Agent,or the Municipality, acting by and through its chief elected official.
I Right of First Refusal. (a) When the Grantee or ally 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, subsequently the Municipality in writing
of the Grantee's intention to so convey the.Property(tile"Notice"). Tise.Notie��•shall sct forth
the Maximum Resale Price of the Property and shall advise the Municipality of a thirty (30)day
right of first refusal in favor of thu Municipality. The Maximum Resale Price is equal to the
amount which is affordable to an eligible purchaser whose inunne does, ncnt exceed the Base
Income as&fi jod in the Regulatory Agreement. The Maximum Reticle Price is equal to the
appraised value rnuhiplied by the Discount Rate expressed a4,I f ,.10ccn (8s opr+osed to a
percent). Within thirty (30)days of the giving of the Notice by the Grantee,the Municipally
shall notify the Grantee in writing,as to wheth.es.- the Municipality is proceeding to locale an
eligible purchaser of the Property or the Municipality shall exercise its right of first refusal to
purchase the Property (the "Mon icipolity's Notice"), 1=or the purpose of iho De•(;d Ri.dvr,and
"eligible purchaser" shall mem a purchaser whose household hicome does not cxcrxd the Buse
Income defined in tite Regulatory Agreement,and who,it located by the Municipality, is
ready and willing to puxchasc the.Property within ninety (90) days urter the Grantee gives the
(b) In the evcut that(i)dw Mucticipality's Notice states that the Municipality
does not intend to proceed to locate an eligible purchaser and that the Munic:ipAity does not
intend to exercise its right of first rel'usal to purchase the Property, or the Municipality fails to
give tho Municipality's Notice within thirty(30) days,the Grantee must use diligcot efforts to
find an eligiblu purchaser within a one hundred twenty (120)day period front the date the
Property is put on the market, as determined by the date of the fits( advcttisurnent fur sale. as set
forth below. The term"diligent efforts" shop mean (A) cite placemwit of an advertisement in the
Teal estate section of at least one (1)newspaper of general circulation for a period of. three(3)
consecutive weeks which sets forth a Customary description of the unit for wale, cn single price
which in not in excess of the Maximum Resale Price,Granwe's telephone number,and the
phrase: "Sale of urrft strl�jec�t to e:erlurrr�ufcic<iT77G5 1P)tlt'YL'strictinnrwith re•rl>ect try the,
nsrxintcrranee and retention of c7fjordable housin g Jirr households of low and moderate] income.,"
and (B) the receipt of satisfactory evidence that the new purcljascr qualifies as an eligible
purchaser, If[he Grcnntee is unable to locate an eligible purchasCr within une hundred twenty
(120)days from the date the Pfoporty is put on the market, the Grantee may convey the Property
to any third party at fair market value, free or all restrictions set forth in this Deed Rider,
provided,Rowe ve;r, all conwideration and payments of any kind received by the Grcntee.for the
coctvcyance,of'the Property to the third party which cxecods the Maximum Resale Price shall be
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inimcdiatcly and directly raid to the Municipality after review by the Monitoring Ag(;nt. 'Upoll
receipt of this excess amount, if any, the Municipality shall issue to the third party and to the
Monitoring Ager).t a.certificate ire recordable form(the"Compliance Certificate") indicating the
mtmicipolity's mccipt of the excess amovol. This Compliance Certificate is to be recorded in the
appropriate Registry of Deeds or reregistered with the appropriate Registry District of the land
Court and such Compliance,C4rtifloatt;may be mlied upon by the there owner of,the property and
by third parties ay constituting conclusive evidence that such excess amount, if any, has been
paid to the Municipality,or that no excess amount is payablu, artld (hat the rights, rosttictions,
ttl;reemenl.s and covenants yet forth in this Deed Rider are. mull and void, The sale price to a third
party shall be subject to the Monitoring Agent's approval, with due consideration given to the
value set forth ilk the appraisal accompanying the Notice and the Monitoring Astern muy withheld
its approval if in its sole judg gent the p►tirchme price is not consistent with the requirement.-.,of
this Deed Rider and the Regulamoty Agrecmcnt. The Monitoring Agent's approval of the sale
price shall be evidenced by its issuance of or)acceptance by the Monitoring Agent of the
Municipality's Compliance Certificate. Fuetds received by a Municipality under this paragraph
shall be deposited in a affordable Housing fund to be used by tirc'Municipality to support other
afforcl:chle. housing within the,municipality.
(c) In the event the Municipality, within said thirty (30)day period, notifies
the Crrantee that the Municipality is proceeding; to locate an eligible purchaser or that the
Municipality shall exercise the.Municipality's right of first relusal to purchase the property, the
Municipality may locate an eligible purchaser,who shall purchase the Property pit a price not in
excess of the Maximum Resale Price subject to a Deed Rider, within sixty (60)days of the date
that the Municipality's Notice is given, or the Mirtricipality may purchase the Property irself at st
price not in excess of the Maximum Resale Price,within sixty(60)days of the date that the,
Municipality's Notice is given, if ruorc than one(1)eligible purchaser is located by the
Municipality, the Municipality shall conduct a lottery or other like procedure to determine which
eligible laurehasur shall Lc untitled tr► the convuyanm of the Property.
(d) If are eligible purchaser is selected to purchase the Property,or if ltcu
Municipality elects to purchase the Property, theTroperty shall be conveyed by the Grantee to
such Olig1blc rurcha"WT or to the Municipality as the case may be,by a goad anti sufficient.
quitclaim deed conveying a good and clear record and marketable title to the Property tree from
all encumbrances except.(i)such taxes for the then current yerar:v,are not due and payable on the
date of delivery of the deed, (ii)any lies for municipal betterments Assessed after the date of the
Notice,(iii)provisions (if local building and zoning laws, (iv)all casements, restriction&,
covenants and agreements of Kecord specified in the,Used from the Grantor to Grantee, (v)tiro
.Regulatory Agrrcrrtent which cannot bu am ndod willrout cho MIS001 of the Monitoring Agent,
(vi)such additional casements, restrictions,covenants and agrcVc:ments or record as the
Municipality and the Monitoring Agent consent to, such consent not to be unreasonably withheld
or delayed,and (vii)in the Cvcml that the Property is conveyed to un eligible purchaser, a Deed
'Rider catisOc:tmy in forme and substance to the Monitoring Agent which the Grantee agsrees. to
annex to said deoo.
(c) Said deed shall be delivered and the purchase price paid(the"Closing")at
the Registry,or at the option of tiro eligible purchaser(err the Municipality, as the case may be, if
the Municipality is pure-basing the:Property), exercised by written notice to the Grantee at feast
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five (5)days prior to the delivery of the deed,at such other place as the eligible purchaser(or the
Municipality, as the case may he, if the Municipality is purchasing the Property),may designate
in said notice. The Closing Shall occur at such time and on such date as shall he specified In a
written notice from the eligible purchaser(or the Municipality,a4,the case may she, if the
Municipality is purchasing the Property)to the Grantee,which date shall be at least five (5)days
a.fte.r the date on which such notice is given,and if tile,eligible purchaser is a purchaser located
by the Municipality,or if tine Municipality is purchasing the Property no later than Sixty(fill)
days Act the Municipality's Notieu is given to the Grantee.
(f) To enable,Grant4c to makc 4ojtveyatic-c as provid(,d iv this Oced Rieder,
Grantee may if he/She so desires at the time of delivery of the deed, uic chi;purchase money or
any portion tlscreof to clout the Lille of any or all encumbrances or interests; all instruments so
procured to be recorded simultaneously with the delivery of'suid deed,
(g} Water and sewer chargas awtd taxers for the then currant tax period shall he
apportioned and fuel value and any common areas charges or association fees,if any, shall be
adjusted us of the elate of Closing and the net amount thereof shall be added to or deducted front,
as the case may be,the purchase price payable by the eligible purchaser or by the Municipality.
(h) Full possession of the Properly free from all occupants is to be delivered at
the time ofthe Closing,the Property to he then in the same condition as it is in oil the date of tine
Grantee's Notice, reasonable wear and tear only excepted.
(i) If Orant.ee shall be astable to give title or to shake conveyance as Above
stipulated,or if any change of condition in t.he;property.not included in the alcove a xceptioia shall
occur,then the Closing shall be extended for up to thirty (30)days and Grautcc shall remove uny
defect in title or re9tore the Property to the condition regUircd by this Deed Rider. The Grantee
shall use best efforts to romovc.Any such defects in the title whether V[iluntary or involunll,ery and
to restore tine Property to tile exlefit permitted by insurance proceed-,or condemnation award.
The oligiblo purchaser(or the Municipality, as the ease may he, if the Municipality is purchas€ng
flit Property)shell have the election, at either the original or any extended thne.for performance,
to accept such title as the Grantee can deliver to the Property.in its then condition wid to pay
tltt:ref.om the purchuse, price without deduction, in which case the Gramee shall convey such title,
except that in the event of such conveyance it) accordance, with the ptovisions,of lhiti 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 assigns to the eligible purchaser or the Municipality,as
(lac cast;may be,on delivery of the deed, all amounts recovered or
rwovurable on account of such insurance or condemnation award
less any amount.,,reasonably expended by the Grantee,for the,:
partial restoration, or
(ii) if a holder of a ntortgnge oil tltc Property shall not permit the
insurance proceeds or the condemnation award or part thereof to he
used to restore, the Property to its flamer condition or to be so paid
nvet or assigned, give to the eligible purchaser or to the
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Municipality,as the case may be, a credit agabist the purchase
! price,on delivery of the deed,equal to said amounts so retained by
the holder of the said mortgage less any antouflis rf aeon:jbly
cxpmded by the Grantee for ally partial restoration.
2. Resale and Tratlsfor'
-ttestrictionS. Except MS othctwist,stated in this Agreement,
the Properly or any interest therein, shall not at any time be sold by the Grantee, the Grantee's
successors and assigns,and no attempted sale shal) be valid, uoWss such tittle or conveyance
complies with the following rcquiFurnents:
(a) the aggregate value of alt consideration and payment%of every kind given
or paid by the eligible purchaser(as located and defined in accordance with Section 1 above)or
the Municipality,as tho rase totay J)e, ttn the then ownor of the Property for raid in connection
with the transfer of such Properly,prier to customary closing adjustments for fuel, taxes,or
similar itetns, shall not bo in excess of the Maximum Resale Price for tine Prop(rty. if the
Property is co►weyed to) an eligible purchaser,a ccrtiiic:ale(the"rligibte Purchaser Certificate")
shall be obtained and mixtrded,signed and acknowledged by the Monitoring Agent which
Eligible Purchaser cerlific:ate.shall refer to the Property,the Grantee,(lie cligibile purchaser
thereof and the,Maximum Resale PricC lhvrefure, and state that tilt proptise.(l conveyance,sale or
transfer of the Property to the eligible purchaser is in complianoc with the Deed Rider and tl,c
Regulatory Agreement. Where also shall be recorded a new Deed Rider executed by the eligible
purchaser.The T?ligible. Purchaser Certificate sball certify that the new Deed Rider i,satisfactory
iti.form and substance.to the Monitoring Agent, if the Property is conveyed to the Municipality,
a Cerlific ate(the"Municipality Purchaser Cellificatc")shall be obtained froin the Monitoring
Agent and signed and Acknowledged by the Municipality and the Monitoring Agoilt and recorded
with the Registry of Deeds,which Municipal Purchaser Certifivite shall refer to)the Property,the
Grantee, the Municipality, the Maximum Resale; Price and state that the proposed conveyance.,
Sale or transfer of the Property to the Municipality is in compliance with the rights,restrictions,
covenants and agreements contained in this Deed Rider. Thcrc also shall be recorded a now
Deed Rider which Deed Rider shall tar.satisfactory in form and submanc:e to the Monitoring
Agent. If the Property is conveyed to a third party in accordaucc with Section 1.,the Monitoring
Agent shall execute and deliver an acceptance of the Compliance Certificate in accordance with
Section 1.
(h) .Any good faith purchaser of file Property, any lender or other party taking
a security interest in such Property:rnd any other third party may rely upon a Complian"
Ourlificate accepted by t1w Monitoring Agent or an Eligible Purchaser Certificaate or a Municipal
Purchaser Certificate rcfcri-hig to the PropCtrty as co,nclu,ive evidence of the matters stated
therein and may record such Certificate in conjiuction wilh eonveyaticc; of the Property,
provided, in the case of an Eligible Purchaser Certificate and a Municipal Purchaser Certificate
the consideration recited in the deed or other instrument conveying the:Property upon such rCr,tte
shall not.be greater than the maximum permitted,price stated in the E igible Purchaser Certificate
or the Municipal Purchaser Certificate as the ease may be. T,f the.propetty is conveyed to thu
Municipality, any fuluro sale of the Properly I,y the Municipality shall be`abject to the
Regulatory Agreement and the heed from the Municipality shall contain A Deed Rider in form
and substance satisfactory to the Monitoring Agent togetlsct-'with an F;tigiblo Purchaser
C lUtificate from the Moniwring Agent,
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(c) Within ten (10)drays of the Closing of the conveyance of.the Property front
Grantor to Grantcc,the Grantcc shall dclivCr to the Monitoring Agent and to the,Municipality a
true and certified copy of the deed of the Property, together with information hs to t1lo place:of
record! t1wrvof iit the public.records, Fail ury of thC:Qr4nttsv,Vr Grantee's suvcvssurs or
assigns to comply with the proceding sentwice shall not affect the validity cif Such conveyance.
(d) ;Notwitizstanding anything to the contrary contained in this Deed Ritter, tile;
Maxieltutll Resalc Price shall not be less than the purchase price paid by the Grantee which at the
title of purchase complied with the rquirettaculs of the preceding deed rider and of The
Regulatory Agreement and whicll is recited in an Eligible Purchaser Certificate or a Municipal
Purchaser Certificate recortivd/filed with the Registry plus the cosis of approved Capital
improvements and marketing expenses, as determined by the Monitoring Agent.
(e) The Grantee understands and agrees that nothing in this Deed Rider or the
Regulatory Agreernew in any way constitute~a promise or guarantee,by the Municipality, tile.
Monitoring Agent car tiny other person or entity that the Grantee shall actually receive the
Maximum Resale Price for the Propc,rty or any other price. for the Property.
3. RcsLlictiyns Ag_einst i&nsing and Junior Focumbranccs. The Property shall not be
]eased,refinanced, encumbered (voluntarily or otherwise)or mortgaged without the prior written
consent of the Monitoring Agent, provided,however, that this provision shall 1101 apply to a first
mortgage granted in connection with this conveyance for a principal amount less than the price
approved by the'Monitoring Agent in the Eligible-Purchaser Certificate, the Municipal Purchase
Certifientc. Any rents,profits,or proceeds from any transaction which has not received the prior
written consent of the Monitorinng Agent shell be paid to and he the.pranerty of,the Municipality
for deposit into a Rand for affordable housing. In the event that the Motnitorin Agent, in the
exercise of its absolute discretion, utnl%ents to any such,lease,refinancing,encumbrance or
mortgage,it shall be a condition to such consent that;ill rents,profits or proceeds from such
transaction whicsh exceed the carrying costs of the Property as determined by tho Monitoring
Agent in its sole discretion Shall he paid to and be the property of the Municipality for deposit
into a fund for affordable housing. Notwithstanding the restrictions outlined in this paragraph,
any Property purchased by the.Municipality, under its Right of First Refusal, may be rented by
the Municipality, at its discretion, so long as the income limits for the lessee household do not
exceed the Base Income as defined in lire Regulatory Agreement. Funds received by a
Municipality ttaldorr this paragraph shall be deposited in an affordable housing fund to be used by
the Municipality to support other affordable housing within the municipality.
4. :flights of Mort a*cc . (a) Notwithstanding anything in this Agreement to the
contrary,but subject to paragraph 4(b)of this Agreement, if the holder of, record (other than the
Grantor or any person related to the Grantor by blood,adoption,or marriage,or any entity in
which the Grantor or any related person has a financial interest(tan "interested Party"))ol'an
eligible mortgage granted to a slate:or national blank,state or federrll mvitage and loan
association,Cooperative batik, mortgage company, trust company, insurance company or other
415tituti0nal lcaatl4r Or its sttce:eNSUrs.or assigns(other than an Interested Party)shall acquire the
Property by reasotl or foreclosure or similar remedial action under the provisions of such
mcartgagv or upon conveyance of the Property in lieu of foreclosure, and provided that Stich
holder has given the Monitoring Agent and the Murai.eipality not less than sixty(60)cloys prior
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5EP-24-2004 10:46 From: To:9786889542 P.18'27
i
h
1
written notice of its intention to foreclose upon its;rrn>rtgage or to ,I(Xept 14 c:onveyicnce of the
Property in lieu of fOTCl%lusure, the righui and restrictions contained in this Agreement shall not
apply to such holder opt}n such 14cg1risiti0n of the Property, any purchaser(other than an
Interested Party)of the Property al.a foreclosure sale conducted by such holder, or any purchaser
(other than an interested Carty)of the Property from Stich holder,and subject to the disposition
of,proceeds established in Paragraph 4(b)of this Agreetneait such Property shall thurcupou and
thcrcafter be free frona all such rights and restrictions. For purposes of this Deed Rider an
eligible tortgage shall he a firsl mortgage encumbering only the Property and in an original
principal amount not to exceed ninety-five(95%)percent of the sale price skated in the 1?ligibte E
Purchaser Certificate,the Municipal Purchase Certificate recorded with,the mortgagor's Bleed.
Any foreclosing;mortgagee holding a mortgage which is not an eligible mortgage,shall not be
entitled to the protections of this section and shall be deemed to be an owner subject to all the
restrictions,anti obligations of an owner, under this Deed hider.
(b) In the event such holder of an eligible mortgage conducts a foreclosure or other
proceeding enforcing its rights under such mortgage.or If the Property is conveyed to such holder
in lieu of foreclosure and the Property is sold for a price ill cxccss of the greater Of(i)the surn crt'
the outstanding principal balance of the note secured by such mortgage plus all accrued imteresl
and all reaSoctairfe costs and expenses which thcs holder is entitled to rueover pursuant to the
lertns of the mortgage,and(ii)the Maximum Resale Price applicable on the date of the stele,such
excess shall be paid to the Municipality in consideration of the loss of the value and benefit of
Iho rights and restrictions contained in this Deed Rider and held by the Municipality mid released
by the Municipality pursvunl to this section in connection with such proceeding(provided,that
W the event that such excess shall he so paid to the Municipality by such holder, the Municipality
shall thereafter indemnify such holder against loss or damage, to such older resutling 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 Manicipality in a0mrdance herewith, provided that
such holder shall give the Monitoring Agent and the Municipaliq prompi uctice of€m stich
cl,cial and shall not object to the hitervontion by the municipality in any proceeding relating
thereto). In ordox to detertnine the Maximum Resale Price cif the Property at the tirnc of
t'orec;losute or other procveeding, the Municipality shall consult with the Monitoring Agent, and
the Maxhnum Resale Price shall be equal to the price as determi►icd by the Monitoring Agent
undet Ihc;definitions wet forth in Section I of this Rider. To the extent the Grantee possesses any
interest in any amount which would otherwise Ue}payable to the Municipality under(his
paragraph, to the fullest extent permissible by law,the Grantee assigns all its interest in such
amount to said holder for payo-tent to the Municipality. Funds reveived by a Municipality under
this parugrraph shall be deposited in an affordable housing fund to be used by the Municipality to
support other affordable houshig within the municipality.
S. Covenants to Hun With the Proptrty,. (a) The Grantor and the Grantee,for good
and valuable consideration, the receipt and sulTicioncy of which is acknowledged,grant and
assign to file Municipality,the Municipality's agents,successors,designees u,nd assigns the right
Of firs(refusal to purchase the Property as set forth in this Deed Rider,and to the Monitoring
Agent and the Municipality the right to enforce the rights and restriedons, covenants and
agreements set forth in this need.Rider. mho Grantor and the Grantee grant to the'Monitoring
Agent and the Municipality the right to enter ul)crtt the'Prcrperty firs the purpose of cttforc:ing any
and all restrictions,coventutts fetid agrmments contained in this Deed hider,and of taking all
1 15
SEP-24-2004 10:16 From. To:9786889542 P.19z27
actions with respect to the Props rty which the Monitoring Agent and/or Municipality may
d ermine to be necessilry or trpproprieate, with our without court order, to prevent, remedy or
abate any violation of the restrictions,covenants and agreements set forth in this Deed Rider.
'rho rights granted to the Monitoring Agent and the Municipality shalt he in addition to and not
iae lindiation of any other rights and rcAuedies available to the Grantor or the Monitoring Agent or
to the Municipality for onforwrii . it of the restrictions, rights,coverlonts and agreements set forth
in this Deed Rider. It is hitended and agreed that all of tlic agreements,covenants, rights And
resrric.:liuns so. Forth hi thiti meet Rifler shall be deemed to he.covenants running with the
Property and shall be binding upon and enforceable against the Grantee,the Grantee's successors
and assigns and any party holding titlt;to the Property for the benefit of And enforceable by the
Monitoring Agent and/or the Municipality, the Monitoring Agent's and/or Municipality's agents,
successors,designees rind assigns for a pr;riOd which is the shortest of(i) nillely-nine years frorra
the date this restriction mass first placed on the Property by either this Deed Rider or preceding
deed rider in substantially similar form and substance, (ii)upon the recording of a Compliance
C;ertificale accepted by the Monitoring Agent,or(iii)upon the recording of an Fligible Purchaser
Certificate and a new Deed Rider executed by Ihr,eligible pure-haw roferonced in the Eligible
Purchaser Curtiltcate, which new Deed Rider is certified in the Eligible Purchaser Certificate to
be in form and substance satisfactory or of a Municipal Purchaser Cortificate as sel forth In this
Deed Rider. The.Monibriug Agent shall be e.ntitic d to s fee of'three-fourths of one percent of
the Maximum Resale Price of the Property to the Municipality or an eligible purchaser ue;an
ineligible purchaser in aecordance with the provisions ol'this Dazed Rider ttatd the Regulatory
Agreement for the;services performed according to the Monitoring Services Agreement(and
referenced in the Rejm1',1Q.)Ty Agreement.). This fee 4hall be paid by the Grantee as a closing cost
at the time of closing,and payment of the fee of the Monitoring Agent shall be a condition to
delivery and recording of its certificate,failing which the Monitoring Agent shall have a ciahn
against the Gramm and persons claiming under the grantee for which the Monitoring Agency
may Seek an attachment,against the Property.
(b) This L)vud Aidur avid all of the agreements,restrictions, rights and
covenants cont4ined in this Deed Rider shall be,dco mod to be an affordable housing rt%triction as
that lerin is dulined in M.G.L,c. 184, S§ 26,31, 32, and 33.
(c) The Vrautco iutetjdS,doolares and o0venants on behalf of itself and its
successors and assigns(i)that this Deed Rider and the covenants, agreements, rights and
restriclions contained in this Deed Rider shall be ant)are covenants running with tfie. land,
encumbering the Property for the term o this Deed Rifler,and are binding upon the Grantee's
successors in title,(H)are not merely personal covenants of the Grantee, and (iii)shall bind the
Grantee, Its successors and assigns and enure to the benefit of.the Municipality and their
successors and assigns for the term of the Deed Rider. Grantee(agrees lbat a,ry And all
requirements of the laws of the Cbinnionwealth of Massaehusctls to be satisfied in order for the
provisions of this Deed hider to constitute restrictions and Cownants rurinir3g wilts thr,land shall
he deemed to be satisfied in,full and that any requirements of privity of estate.are, also deemed to
be srttisfied in full,
(d) Without limitation oil any other rights or rerriccli.os of the Urantor, the
Monitoring Agent, the Municipality,their agents,successors,designees and assigns, any scale or
other transfer or c6nveytmcc of the Property in violatioli of the provisions of this Deed Rider,
} 16
SEP-24-2004 10:47 From: To:9706069542 P.20/27
shall, to tine ntaxilnusnn extent perrtnittcd by law, be voidable by the Municipality or the
1 Mortitothig Agoal,or thi it agents,SUCassors,d signets and assigns by suit in equity to enforce
such rights,rostric:tions,covenants, and agreaments.
(e) 'Notwithstanding any other provision in this'Deed bider,after the end of
the ninety-ninth year from tits date this restriction was first placed oft tile,Property by either this
Mod.Bidet of a procedung dood ridor in substantially similar form and substance(tile
"Termination Date"),the then owner of the,Property then subject to this Deed hider may sell tho
Property at a pricy equal to the fair nturket value of the Property u5 of tine date of sale and not
subject to this feed Rider, provided, however, that the owner, at the ti.me of such sale must pay to
the Municipality the difference between the.fish market value a i so determined and tine
Maximum Resale Price which the owner could realize in a sale to an Eligible Purchaser were this
.need Rider to have remained in effect, and upon such payment the Property will be deeded free
and clear of this'Deed Rider, to the event of any failure of any owoor to snake a payment under
this Dced Rider tine Municipality sliall have; the right to se:*payrn4nt boat tire,.Purchaser of the
Property, and hislhor successors and assigns,which right shall be prior to the encumbrance of
any mortgage upon the Property. The owner of the;Properly after the Termination Date shall
have the right to,make a payment by refinancing or from other sources in the sane atrnount to the
Municipality as the Municipality would receive were this Deed Rider to have remained in effect
in the event of a sale at fair market value on the date of payment after the Termination Date,and
in the ovent of such payment the owner shrill hold the Property free and clear of this Deed Rider.
The provisions of this paragraph shall survive the expiration of the terin of this Deed Rider.
6. Notice. Any notice% dcniands or requests that inay be given under this D<.c;d
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, at the addresses wet.
forth below,or such other addresses as stay be.specified by any party by Such notice.
Muriii ipulity: North Andover Zoning Board of Appeals
27 Charles Street
North Andover,Massachusetts 01845
Attention: Chairperson
Gr�n Meetinghouse Common%, LLC
121 Carter Field Road
North Andover, Massachusetts 01,845
Attn: Thomas n. Zahonniko,Manager
Grantee:
17
SEP-24-2004 10:47 From: 7o:9786889542 P.21/27
Monitoring Ae«t; Citizens Housing and Planning Association, Inc.
} 18 Tremont Street
Boston, Massachusetts 02108
Any such notice, demand or request shall be dcemed to have been given on the day it is hand
delivered or mailed.
7. Further Assurances. The Grantet; agrees front time to time,as allay be reasonably
required by the Monitoring Agent or the Municipality, to furnish thu Monitoring Agent and the
Municipality with a written statement, signed and, if requested, acknowledged,setting forth the
condition and occupttney of the Property, informalion concerning the retiule of the Property and
all other information pertaining to the Property or the Grantee's eligibility for and conturrnance
with the Regtalattory Agreement for this P.ro.jcct,
8. Wniver. Nothing contained in this need hider shall limit the rights or the
Monitoring Agent and/or the Municipality to release or waive,.frorn time to time, in whale or in
party, ally of the rights,restrictions,Covenants or agreements contained in this heed Rider with
respect to the Property. Any such release or waiver must be made in writing and must be
c ,cutc;d by the Monitoring Agoi-it aid/or lli4.Municipality or designee.
9. S4_v_e;ral?ili X. If any provisions Of this Dcud Rider or tart;applicalion thereof to
any pefsoal or circumstance shall t:oi-=, to any extent, to be invalid or unenlorecablc, the
remainder of this Deed Rider 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 of this Deed Rider shall he valid anti enforced to the fulleo extent permitted by
law.
10, Respo it5il�itily n1 Eller M�nitti�ri�)g_�1ger�l. The Moo iloring Agent shall not he held
liable for any action t,aken or omitted under this need rider so long as it shall have acted in good
faith and without gross negligence.
.I1. laidernni(Y.The Crsantair and the Grantee agree to indemnify kind hold haralless file
MOT14Orinb Agent:against all damages,costs and liabilities, including reasonable attorney's fees,
asserted against the Monitoring Agent by reason of its relationship with tilt Project under this
Deed Rider and not involving claims that the Monitoring Agent acted in bad faith And with gross
negligence.
Executed as a settler) instrument this day of 2(X) ,
ig
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5EP-24-2004 10:g7 From: To:9786889542 P.22-127
GRANTOR: GRANTEE:
1
MpEnNG.HdUSE commONS, JJ�C
13y; 13y;
Thomas D. Zahoruiko
Its: Maltagcr
COMMONW.EAUH OF MASSACHUSE'rrS
ss
On this_day of , 2004, before me, the undersigned notary public,
personally appeared , proved to ine. through satisfactory evidence of
idtUldlic;atiun, which was 0 driver's license,n personally known to site, or rl personally known to
3'd party witness pursonally known to me, to be the person whose name is signed on the
preccdbig or attached document, and acknowledged to me thAt. he signed it voluntarily for its
stated purpose;as Manager, for , LLC,a limited liability company.
,Notary Public
COMMONWEAL TY1 nr.MIASSACHUSETTS
, 41
On this_day of , 2004, before; .me, the undersigned notary public,
personally appeared proved to me through .4alisfac:tory evidence of
idi;ntifi4atiun,which was 0 driver's license, I I ixrsonally known to rr v,or n penonally known to
P party witness personally known to mc, to be the person whose name is signed on the
pre4e(ing or attached document, and acknowledged it) me that he signed it voluntarily for its
stated purpose as Manager,for , LLC:,a limited liability company,
Notary]Public _..
1 19
SEP-24-2004 M47 From: To:9786889542 P.23/27
MONITORING SERVI -,ES AGREEMENT
fT�111. U.N17M rZNGLAND FUND]
For Ownership Projects
THIS AGREE M.F,Nrf.'iq made as of the day of October, 2004, by and between
Mmotingboysr, Conin-gons UQ-, a Massachuselts, limited liability company having no address at
121—Carier Field Road. North Andover. Massachusetts 01845' ("Developer") and Citizens'
Housing and Planning Association, Inc.. with an address at 18 Tremont Street, Boston,
Massachusetts 02108 ("Mostitoring Agent").
Background
A. The Federal Home Loan Dmik- of Doston ffl.11.1111") has agreed to provide a
SUbSidjUd fldV0PCC (tile "54ibsidized Advance") wider the New Fnglaod Fund (tile "NEF") to
sakwl (dw "Bank") for the, purpose offinwicing a projeet containing
L8 residential housing units located at Vale and Soufli--13r Strccts NoftllAidovcr, Essex
County, MaSsachuwtts (the "Project").
K The Project has received a comprehensive permit from the Zoning board of
Appeals of Cite City/Town ofNprth- i'A id'py'e'r (the W"clpality") under Massachusetts General
Laws, Chapter 40B (the "Comprehensive Permit") and is subject to a Restated Regulatory
Agreement, dated October 2004 between the Bank and the Developer (the "Regulatory
Agreement").
C. .Pursuant to the guidelines of the MIFF for comprolkwisivc permit projects, tile
COMPI-01C.1131VO Permit and the Regulatory Agreemeni, at Icusl unitrc in the Project (the
"Affordable Units") are required to)be sold to households whose incomes do noel exceed 80% of
(It(; niodian income, (adjusled for household size) for the Tawrence. Primary Metropolitan
Statistical Area, In addition, tile Affordable Units will he subject to titted Tider,%governing reside
(thc "Affordability Requirement")ffira period of not less than 94 years.
D. PUTSUAnt (4) the guidelines (if the Nr,-.F for comprehensive permit projeets, tile.
Comprehensive Permit and the Regulatory Agreement, the :Developer infly not receive profit it,
uxee.4,.,of'20%of!total developmen
t costs of the Pro cet(the"Limited Dividend Requir-oment").
E. Pursuant to roquircownts of the Hegula(ory Agreement, the Developer has agreed
to retain the Monitoring Agent to perilorm monitoring and enforcement services regarding
CoMpliance. of the Project with the Affordability Requirement and compliance of the Developer
with the Limited Dividend Requirement.
SEP 2 4 2004
BOARD OF APPEALS
SEP-24-2004 10:47 From: To:9786869542 P.24/27
Agreement
f
For one dollar and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to bo 149ally bound, agree as follows:
Monitoring Setviees. Wfi torhig Agent shall monitor the compliance of the
Project with the Affordability Requirement and the compliance of the Developer with the
Limited Dividend Roquirc:mum, including:
(i) Receipt of co.4 certifiwticrns for the Project from the Developer,
(ii) Review of (x) the adequacy and completeness of cost certifications and (y) tine
substantive compliance of the Project with the Affordabilily ft N irc;rxttill and of
the Developer with the Limited Dividend Aequitoment.
(fit) Review of income cextificat ions,deeds and deed riders with respect to inilial rules
of Affordable Wills.
(iv) Certifying to the owners of.Affordable Units as to the ultlxinmulrn sales,price-which
a household having the Base Income (as defined in Ilic Rogulalory Agreement)
can pay for an Affordable Unit. The maxinnum sales pric wi "jast he locked-in at
the time the marketing period cocvtlienccs for the affordable units.
(v) Monitoring of to-sales of Affordable Units liar eornpli:cnc:e with the terms of the
applicable deed riders and issuance of certifications, as appropriate., approving re-
sales rind the payment of recapture amounts,
The Monitoring Agent may provide reasonable supplemental monitoring on its own initiative in
Ardor to a nsuro to the extent practicable the compliance of,the Project and the Developer with the
Affordability Requirutnertt and the Limited Dividend Requirement. The services under this
Agfee,itnont shall not include any construction period monitoring. The st:rvices under this
Agreement Shall include follow-up discussions with the Developer, if appropriate, after an event
of noncompliance.
2. Monitoring..Sc vices tAcp. The Monitoring Agent shall receive a fee of
I4 00,Od front the,Developer. Of this amount, 50% shall he paid upon Of uXer:ulion of
this Agrcomont,2511b shall be paid upon the completion of tho first affordable unit lottery,
and 2596 shall ire paid within thirty (30) days after the issuance csf'the last ccoificate of
Wltlpatncy for a Unit. Such .fee shall constitute payment for the services of the
Monitoring Agent with respect to the Limited Dividend Requirement and the initial sales
of the Affordable Units. Thereafter, the M(nniturft Agent shall receive a fee of one
percent of the maximum Affordable Unit Sales price, to be paid by each Seller of the
Affordable Unit at each closing as a condition precedent to closing, for the services with
respect to monitoring the stiles transactioti as provided In this Agreenneisl, Such fee shall
be payable for all transfers of. Affordable; Unit.,;, including those to the Municipality, an
eligible purchaser or an ineligible purchaser. If the Monitoring Agents fee is not pairs ftt.
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5EP-24-2004 10.47 From: To:9786889542 P.25/27
the time of closing, the Monitoring Agent shall be entitled to payniont fror►s the purchaser
1 of the Affordable Unil and to brifig an action and seek all attachment of the interest of the
purchaser in the Affordable. Unit. The deed rider attached to tiro clued of each Affordable
Unit sltaall contain a covenant ohligatiOg(lie owner of ouch Affordable Unit to make these
payments. F14LBB shall have no responsibility for paytiic;nl of any fee to Monitoring
Agent itndor this Agreement,
3. Ens Ac ement Services. In the event of serious or repeated violations of the
substantive of reporting requirements of the Regulatory At;cement or a.failure by the Developer
to lake appropriate actions to cure a default under the Regulatory Agreement, the; Monitoring
Agent shall have the right, at Its discretion, to take appropriate enforce meat action against. the
De.vvloper, including, without lirnitation, notice to the. FHL$Ili, to the Municipality and/or to the
]lank or legal Kti.on to coinpel the Developer to comply with the requirements of the Regulatory
Agreement. The Regulatory Agreement provides for payment by the Developer of .fees and
expenses (including legal fees) of the Monitoring Agent in the event enforcement action is taken
:against the Developer thereunder or -tinder this Agreement. The 'Monitoring Agent shall he
entitled to seek recovery of its fees and exiviises incurred in enforcing the Regulatory
Agreement against the Developer and to seek an attachment, including an attachment of the
interest of the Developer in the Project in connection with any action to recover its fees and
exInnscs,atsd to amen the lien described hi the Regulatory Agreement.
In the event of a violalloo of the provisions of tt deed rider, the Monitoring Agent shall
have the right, at its discretion, to take approPriatc csil;urCement action against [lie unit owner or
the unit owner's succcssortc its title, including,without lirnitation,notice to the FHLOB,and to the
Municipality and/or to the Bank or legal action to compel the unit owner to comply with the
requirements of the relevant creed rider, Tile farm of steed rider Will provide liar payment by the
unit owner of fees and expenses (Including legal fees) of the Monitoring Agent In the event
enforcelliant action i% luk.en against the unit owner thercunder of under this Agreement, The
Monitoring Agent shall he entitled to .reek recovery of its lees and expenses incurred its
enforcing a deed rider against the, unit owner and in any action to tieek an altachnioul of the
relevant unit to,Secure paynielit of such fees and expenses and to assert a lien against tho unit sae
provided in the deed rider.
The Monitoring Agent shall not be entitled to seek any compensation or reimburseriicut
from FHLBB or the Bunk in connection with the enforcement services under this Section 3, it
being understood that the Monitoring Agent shrill look solely to the reimbursenicnt rights
described above for payineat of the Monitoring Agent's costa and expenses, Nothing in this
Agreement shall be construed to require the Monitoring Agent to expend more Chart $2,00f1 in
enforcing the provisions of the Regulatory Agrecrnunt or to take any particular enforcement
action,against Developer.
4, . 'emi. The monitoring services are to bc` provided for the full terra of the
Regulatory Agreement which is 99 years after the stile of the first Affordable Unit. The term of
this Agreement shall end on the.later of(a)six months after the 991h full year after the sale of the
first Affordable Unit or, (b) after the all the requirements under deed riders have been complied
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SEP-24-2eO4 10:48 From; To:9786869542 P.26/27
with, including the obligation of owners upon the date of expiration to make payments to the
i Municipality upon the sale,of their units.
5. Responsibility of Monitoring A k-iit. The Monitoring Agent shall not Lie held
liable for any action taken or omitted wider this Agreement so long as it shall. have acted in good
faith and without gross negligence.
6. Indemnity. The Developer, for itself and its successors and assigns, agrees to
indemnify and hold harmless the Monitoring Agent IgtIinst All clamAger, cotitr And lblbilitieS,
including reasonable attorney's fees, asserted against the Monitoring Agent by reason of its
rolationship with the ProjL Co under this Agreen wo( and not involving claims that the Monitoring
Agent acted in bad faith and with gross negligence.,
7. Applicable Law. This Agreement, and the application or interpretation of this
Agrccrnojit,shall be govcnted by the,;laws of The Commonwealth of MassachuRells.
8. Binding Agreement. This Agreement shall he binding on the partie` to this
Agreement, their heirs, executcirs, percomal representatives, successors and assigns. Tn the event
1hat the Monitoring Agent shall cease to exist under this Agreement, then a successor Monitoring
Agent Ynay he appointed by FHL131;and (lie Municipality.
9. Heading. All paragraph heading~ in this Agreement are for convenience of
retcre,icc only and are not intended to qualify the meaning of the paragraph.
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SEP-E4-2004 10:48 From: To:97(36889512 P.27/27
IN WITNESS WHEREOF, the parties to this Agreement have cawied this Agreement to
be•duly executed as of the date first written above.
DEVELOPER
Meetinghouse Commons LLC
By:
Thom is D. Zahomiko, its Manager.
CITT7r.NS HOUSING AND PLANNING
ASSOCIATION, INC,
Aaron Gornstoin
Its Executive Dircclor