Current through Register Vol. 35, No. 18, September 24, 2024
THIS DEVELOPMENT AGREEMENT AND PRESERVATION COVENANTS AND
DEED RESTRICTIONS, is entered into this _____ day of _____, _____, by and
between [owner], its heirs, successors and assigns and
the Historic Preservation Division, Office of Cultural Affairs, State of New
Mexico ("the division"), a public agency.
A. RECITALS:
(1) The division is a public agency organized
under the laws of the state of New Mexico.
(2) The division has established a program
under the Section
18-6-22
NMSA 1978 to contract with lending institutions for the purpose of making loans
to owners of registered cultural properties for the restoration, rehabilitation
or repair of those properties in accordance with the Historic Preservation Loan
Act (Sections
18-6-18
through
18-6-23 NMSA
1978).
(3) The division has
established, through a loan participation agreement dated [_____, _____], with
the [lending institution], a loan consisting of funds
of the division and of the lending institution(s).
(4) The owner is the owner in fee simple of
[description/address of property], in _____, New Mexico, (hereinafter referred
to as the "property" and more fully described in [_____], to this agreement,
hereby incorporated into and made a part of this agreement) a property entered
on the state register of cultural properties and/or in the national register of
historic places.
(5)
[Lending institution] by the authority of the loan
participation agreement has approved a loan from [participating
parties] in the amount of [loan amount]
to owner for the purpose of restoring, rehabilitating and repairing the
property.
(6) The restoration,
rehabilitation and repair to be performed by means of the referenced loan are
more fully described in [_____] to these covenants and deed restrictions,
hereby incorporated into and made a part of these covenants and deed
restrictions; and
(7) Section
18-6-23(A)(1) NMSA 1978 requires the maintenance of the property as restored,
rehabilitated and repaired for not less than seven years. Consistent with
Section 18-6-23(A)(1) NMSA 1978, the terms of the loan section of the loan
participation agreement (attachment A) requires that at the time of approval of
a loan the owner/borrower and the division shall execute and record covenants
and deed restrictions running with the land for a term of not less than seven
years to ensure that the historic and architectural value of the property will
be preserved.
(8) In consideration
of the loan provided to owner by the division and other valuable
considerations, the receipt and adequacy of which is hereby acknowledged, the
owner hereby agrees that the property shall be subject to the restrictions
provided in the covenants set forth below (the "covenants"), that the covenants
shall run with the land for the seven-year period specified below and shall
bind all future owners and occupants of the property during that period, and
that this agreement shall be recorded so that the covenants shall constitute a
deed restriction with respect to the property.
B. AGREEMENT: Owner's covenants: Owner hereby
covenants to do and to refrain from doing, as the case may be, each of the
following activities upon the property:
(1)
without the prior written permission of the division, signed by a duly
authorized representative thereof, owner shall not undertake any of the
following actions:
(a) construction,
alteration, remodeling, ground disturbance or other modification of the
property affecting the condition of the property
(b) construction, alteration, remodeling
ground disturbance or other modification of the property affecting the view to
the property or encroaching upon the open space of the property.
(2) Owner shall at all times
maintain the property in a good and sound state of repair. Subject to the
casualty provisions of casualty damage or destruction section below, this
obligation shall require repair, rebuilding and reconstruction whenever
necessary to maintain the property in good and sound condition.
(3) No buildings or structures not presently
on the property shall be erected or placed on the property during the term of
these covenants and deed restrictions except for temporary structures required
for the repair and maintenance of the property.
(4) Nothing in this instrument shall be
deemed to prohibit owner from seeking any financial assistance available to him
from any source for the maintenance and repair of the property; provided,
however, that the lien of the covenants and deed restrictions set forth in this
agreement shall not be made subordinate to any mortgage or other lien interest
in connection with other financial assistance without the division's prior
written approval.
C.
Standards for review: In exercising any authority created by the covenants and
deed restrictions to inspect the property, to review any construction,
alteration, repair or maintenance, or to review casualty damage or to approve
reconstruction of the property following casualty damage, the division shall
apply the standards for rehabilitation and guidelines for rehabilitating
historic buildings, issued and as may be issued from time to time by the
secretary of the interior (hereinafter the "standards") and/or state or local
standards considered appropriate by the division for review of work affecting
historically or architecturally significant structures or for construction of
new structures within historically, architecturally or culturally significant
areas. Whenever the division receives notice that the standards have been
amended, it shall notify the owner of the amendment. Owner agrees to abide by
the standards in performing all ordinary repair and maintenance work. In the
event that the standards are abandoned or materially altered or otherwise
become, in the sole judgment of the division, inappropriate for the purposes
set forth above, the division may apply alternative standards which, in the
division's sole discretion, it determines are reasonable in light of the
purposes of the Historic Preservation Loan Fund Act and other relevant
circumstances, and shall notify the owner of the substituted
standards.
D. Casualty damage or
destruction:
(1) In the event that the
property or any part thereof shall be damaged or destroyed by casualty, the
owner shall notify the division in writing within one (1) day of learning of
the damage or destruction, such notification including what, if any emergency
work has already been completed.
(2) For purposes of this instrument:
[description of insurance coverage].
(3) No repairs or reconstruction of any type,
other than temporary emergency work to prevent further damage to the property
and to protect public safety, shall be undertaken by the owner without the
division's prior written approval of the work.
(4) Within four (4) weeks after learning of
the date of damage or destruction, the owner shall submit to the division a
written report prepared by a qualified restoration architect or other licensed
architect (acceptable to owner and the division) which shall include the
following:
(a) an assessment of the nature and
extent of the damage;
(b) a
determination of the feasibility of the restoration of the property and/or
reconstruction of damaged or destroyed portions of the property; and
(c) a report of such
restoration/reconstruction work necessary to return the property to the
condition existing prior to casualty. If in the opinion of the division, after
reviewing such report, the purpose and intent of the covenants and deed
restrictions will be served by such restoration/reconstruction, the owner shall
within eighteen (18) months after the date of such report complete the
restoration/reconstruction of the property in accordance with plans and
specifications consented to by the division and shall be obligated to utilize
all casualty insurance proceeds for that purpose, if necessary, as determined
by the division, in its sole discretion.
E. The division's covenants: The division
may, at its discretion and without prior notice to owner, convey, assign or
transfer its beneficial interest in these covenants and deed restrictions to a
unit of federal, state or local government or to a similar local, state or
national organization whose purposes, inter alia, are to promote preservation
or conservation of historical, cultural, or architectural resources, and which
at the time of conveyance, assignment or transfer is a qualified organization
under the Internal Revenue Code, provided that any such conveyance, assignment
or transfer requires that the preservation and conservation purposes for which
the covenants and deed restrictions were granted will continue to be carried
out. The division shall exercise reasonable judgment and care in performing its
obligations and exercising its rights under the terms of these covenants and
deed restrictions.
F. Inspection:
Representatives of the division shall be permitted at all reasonable times to
inspect the exterior and interior of the property. Representatives of the
division shall be permitted to enter and inspect the interior of the property
to ensure maintenance of structural soundness and safety; inspection of the
interior will not, in the absence of evidence of deterioration, take place more
often than annually, and may involve reasonable testing of interior structural
condition. Inspection of the interior will be made at a time mutually agreed
upon by owner and the division, and owner covenants not to withhold
unreasonably its consent in determining a date and time for such
inspection.
G. The division's
remedies: The division has the following legal remedies to correct violation of
any covenant, stipulation or restriction herein, in addition to any remedies
now or hereafter provided by law:
(1) The
division, may following reasonable written notice to owner, institute suit(s)
to enjoin any violation of this instrument by ex parte, temporary, preliminary
and /or permanent injunction, including prohibitory and /or mandatory
injunctive relief, and to require the restoration of the property to the
condition and appearance required under this instrument.
(2) The division shall also have available
all other legal and equitable remedies to enforce owner's obligations
hereunder.
(3) In the event that
owner is found to have violated any of its obligations, owner shall reimburse
the division for any costs or expenses incurred in connection therewith,
including all reasonable court costs and attorney's, architectural, engineering
and expert witness fees.
(4)
Exercise by the division of any remedy hereunder shall not have the effect of
waiving or limiting any other remedy, and the failure to exercise any remedy
shall not have the effect or waiving or limiting the use of any other remedy or
the use of such remedy at another time.
H. Notice of proposed sale: Owner shall
promptly notify the division in writing of any proposed sale of the property
and provide the opportunity for the division to explain the terms of the
covenants and deed restrictions to potential new owners prior to sale
closing.
I. Covenants and deed
restrictions run with the land: The obligations imposed by these covenants and
deed restrictions shall be effective for seven (7) years from the date first
written above and shall be deemed to run as a binding servitude with the
property. These covenants and deed restrictions shall extend to and be binding
upon owner and the division, their respective successors in interest and all
persons hereafter claiming under or through owner or the division, and the
words "owner" and "the division" when used herein shall include all such
persons. Owner agrees that these covenants and deed restrictions shall be
inserted in any subsequent deed or other legal instrument by which owner
divests itself of either the fee simple title to or its possessory interest in
the property or any part thereof.
J. Recording: Owner shall do and perform at
its own cost all acts necessary to the prompt recording of this instrument in
the lands records of [county] , New Mexico. This instrument is effective only
upon recording in the land records of [county], New Mexico.
K. Subordination of subsequent mortgages;
division's rights in connection with senior liens: The covenants and deed
restrictions shall have lien priority over all mortgages and other rights
affecting the property granted after execution and recording of the covenants
and deed restrictions.
(1) Before exercising
any right or remedy due to breach of these covenants and deed restrictions
except the right to enjoin a violation hereof, the division shall give all
mortgagees of record written notice describing the default, and the mortgagees
shall have sixty (60) days thereafter to cure or cause a cure of the
default.
(2) Nothing contained in
the above paragraphs or in these covenants and deed restrictions shall be
construed to give any mortgagee the right to extinguish these covenants and
deed restrictions by taking title to the property by foreclosure or
otherwise.
(3) Borrower's default
in connection with any loan or other obligation secured by a lien superior to
the mortgage or the lien of the covenants and deed restrictions shall
constitute an event of default pursuant to these covenants and deed
restrictions. The division and/or the lending institution shall have the right
(but not the obligation) to cure any default in connection with superior liens
and charge the costs of curing such defaults to borrower.
(4) The following provisions apply to all
mortgagees now or hereafter holding a mortgage on the property.
(a) If a mortgage grants to a mortgagee the
right to receive the proceeds of condemnation proceedings arising from any
exercise of the power of eminent domain as to all or any part of the property
or the right to receive insurance proceeds as a result of any casualty, hazard
or accident occurring to or about the property, the mortgagee shall have a
superior claim to the insurance and condemnation proceeds and shall be entitled
to same in preference to the division until the mortgage is paid off and
discharged, notwithstanding that the mortgage is subordinate in priority to
these preservation covenants and deed restrictions.
(b) If a mortgagee has received an assignment
of the leases, rents and profits of the property as security or additional
security for a loan, the mortgagee shall have a superior claim to the leases,
rents and profits of the property and shall be entitled to receive same in
preference to the division until said mortgagee's debt is paid off,
notwithstanding that the mortgage is subordinate to these preservation
covenants and deed restrictions.
(c) Until a mortgagee or purchaser at
foreclosure obtains ownership of the property following foreclosure of its
mortgage or deed in lieu of foreclosure, the mortgagee or purchaser shall have
no obligation, debt or liability under these preservation covenants and deed
restrictions.
L. Written notice:
(1) Any notice which either owner or the
division may desire or be required to give to the other party shall be in
writing and shall be mailed postage prepaid by registered or certified mail
with return receipt requested, or hand delivered; if to owner, then at
[address], and if to the division, then to [address].
(2) Each party may change its address set
forth herein by a notice to such effect to the other party. Any notice,
consent, approval, agreement, or amendment permitted or required of the
division under these covenants and deed restrictions may be given by the
director of the historic preservation division or by any duly authorized
representative of the division.
M. Evidence of compliance: Upon request by
the division, owner shall promptly furnish the division with evidence of its
compliance with any obligation of owner contained herein.
N. Interpretation and enforcement: The
following provisions shall govern the effectiveness, interpretation and
duration of the covenants and deed restrictions.
(1) Any rule of strict construction designed
to limit the breadth of restrictions on alienation or use of property shall not
apply in the construction or interpretation of this instrument, and this
instrument shall be interpreted broadly to effect its preservation and
conservation purposes and the transfer of right and the restrictions on use
herein contained.
(2) This
instrument shall extend to and be binding upon owner and all persons hereafter
claiming under or through owner, and the word "owner" when used herein shall
include all such persons, whether or not such persons have signed this
instrument or then have an interest in the property. Any right, title or
interest herein granted to the division also shall be deemed granted to each
successor and assign thereof, and the work "the division" shall include all
such successors and assigns.
(3)
This instrument may be executed in counterparts, each page of which (including
exhibits) shall be initialed by owner and the division for purposes of
identification. In the event of any disparity between the counterparts
produced, the recorded counterpart shall in all cases govern. Except as
provided above, each counterpart shall be held by each of owner and the
division. One counterpart shall be recorded as provided above and may be
returned to the division, and one counterpart shall be stored as a matter of
public record at the [county] courthouse.
(4) Except as expressly provided herein,
nothing contained in this instrument grants nor shall be interpreted to grant
to the public any right to enter on the property.
(5) To the extent that the owner owns or is
entitled to development rights which may exist now or at some time hereafter by
reason of the fact that under any applicable zoning or similar ordinance the
property may be developed to use more intensive (in terms of height, bulk, or
other objective criteria regulated by such ordinances) than the property is
devoted to as of the date hereof, such development rights shall not be
exercisable on, above, or below the property during the term of these covenants
and deed restrictions, nor shall they be transferred to any adjacent parcel and
exercised in a manner that would interfere with the preservation and
conservation purposes of these covenants and deed restrictions.
(6) For purposes of furthering the
preservation of the property and of furthering the other purposes of this
instrument, and to meet changing conditions, owner and the division are free to
amend jointly the terms of this instrument in writing without notice to any
party; provided however, that no such amendment shall limit the duration or
interfere with the preservation and conservation purposes of the donation. Such
amendment shall become effective upon recording among the land records of
[county], New Mexico.
(7) The terms and conditions of these
covenants and deed restrictions shall be referenced in any transfer of the
property by the owner, his heirs, successors and assigns.
(8) The invalidity of any statute of the
state of New Mexico or any part thereof shall not affect the validity and
enforceability of this instrument according to its terms, it being the intent
of the parties to agree and to bind themselves, their successors and their
assigns for the duration of these covenants and deed restrictions to each term
of this instrument whether this instrument be enforceable by reason of any
statute, common law or private agreement either in existence now or at any time
subsequent hereto. This instrument may be re-recorded at any time by any person
if the effect of such re-recording is to make more certain the enforcement of
this instrument or any part thereof. The validity or unenforceability of any
provision of this instrument shall not affect the validity or enforceability of
any agreement relating to the subject matter thereof.
(9) Nothing contained herein shall be
interpreted to authorize or permit owner to violate any ordinance or regulation
relating to building materials, construction methods or use. In the event of
any conflict between any such ordinance or regulation and the terms hereof,
owner shall promptly notify the division of such conflict and shall cooperate
with the division and the applicable governmental entity to accommodate the
purposes both of this instrument and of such ordinance or regulation.
(10) This instrument reflects the entire
agreement of owner and the division. Any prior or simultaneous correspondence,
understandings, agreements and representations are null and void upon execution
hereof, unless set out in this instrument.
O. Expiration: This easement shall expire and
be void and of no force on the _____ day of _____, _____.
IN WITNESS WHEREOF, of the date first written above, owner
has caused this development agreement and conservation easement to be executed,
sealed and delivered; and the division has caused this instrument to be
accepted, sealed and executed in its name by its authorized
representative.
Owner:
______________ Date__________
[name]
State of New Mexico
Office of Cultural Affairs
Historic Preservation Division
By:______________ Date__________
[name]
state historic preservation officer
STATE OF NEW MEXICO)
) ss.
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this
_____ day of _____, _____, by _____.
_________________
NOTARY PUBLIC
(SEAL)
my commission expires:
__________
