HomeMy WebLinkAbout2012-02-07 Planning Board Supplemental Materials (12) DECLARATION OF RESTRICTION
THIS DECLARATION OF RESTRICTION (hereinafter the "Declaration") is made this
day of February, 2012,by Brightview North Andover, LLC, a Maryland Limited liability
company qualified to do business in Massachusetts as a registered foreign limited liability
company,having a principal place of business of 218 North Charles Street, Suite 220, Baltimore,
Maryland 21201 (hereinafter the "Declarant").
WITNESSETH
WHEREAS, Declarant is the owner of that certain parcel of land, known and numbered
as 1275 'l urnpike Street, North Andover, Ylassachusetts, consisting of 33.346 acres of Land, as
shown on a plan entitled "Plan of Land in North Andover, " dated July 20, 2010, Scale -1 = 30',
prepared by Marchionda Associates, LP, and endorsed by the Town of North Andover
Planning Board on November 29, 2011 (the "ANR Plan"), recorded with the [;ssex North
District Registry of Deeds as Plan No. being the same premises contained in a deed dated
January 2,1998, recorded with said Registry in Book 4912, Page 127 (collectively, the
"Property"); and
WHEREAS, a Continuing Care Retirement Center and Site Plan Review Special I""rmit,
dated April 6, 2010 (the "Special Permit:Decision"), as affected by a Notice of Decision
(Insubstantial Change), dated July 5, 2011 (the "Insubstantial Change Decision"). were both
issued by the North Andover Planning Board (collectively, the "Decision") with regard to the
Property, which Special Permit Decision and Insubstantial Change Decision are recorded with
said Deeds in Book- Page and in Book____ , Page _ respectively;
WHEREAS, the Special Condition 7.d of the Special Permit Decision requires the
Declarant to impose a restriction on the Property for the benefit of the 1'own of Nortl, Andover
which provides that the Property shall not be transferred to a nonprofit entity except in the
event that such entity agrees in writing by an instrument recorded with said Deeds to pay real
estate taxes on the Property for so long as such entity owns the Property and notwithstanding
such entity's not for profit status;
NOW, 'rHERFFORF,, Declarant hereby vohunt<<rily declares and imposes in perpetuity
upon the Property the following covenants, conditi�ris and restrictions for th., benefit of
Declarant, its successors and assigns, and the Town of North Andover, by and 'hrough its
Planning Board (hereinafter the "'Gown''), and said R.-operty shall be held, transferred, sold,
conveyed, occupied and used subject to the covenants, conditions, and restrictions hereinafter
set forth.
1. Prohibited Acts and Uses. Subject to the Reserved Rights set forth in Section 2 below,
the Declarant hereby covenants and agrees that it shall not apply for or claim an exemption
from local real property taxes as a nonprofit entity pursuant to M.G.I... c. 59, Section 5, Clause
Third, and the Property shall not be transferred to a nonprofit entity except in the event that
such entity agrees in writing by an instrument recorded v,,ith said Deeds that it shall -iot apple
for or claim an exemption from local real property taxes as a nonprofit entity pursuant to
M.G.L. c. 59, Section 5, Clause Third, and agrees to pay real estate taxes on the Property for so
long as such entity owns the Property and notwithstanding such entity's not for profit status.
2. Reserved Rights. Notwithstanding any provisions herein to the contrarv, Declarant
reserves to itself and its successors and assigns the right to undertake all other activities y,vhich
are not inconsistent with the prohibited acts and uses described in Paragraph l above, including
but not limited to, the right to divide, subdivide, resubdivide, sell and c onvev all or pul-tion of
the Property that is burdened by the Declaration.
3. Term-- Binding Effect In Perpetui 'Phis Declaration of Restriction and its provisions
herein.set forth shall run with the Property in perpetuity from the date of recordation in the
Essex North District Registry of Deeds and shall be binding upon Declarant, Declarant's
successors and assigns, and any other party having an ownership interest in said Property or
claiming to have an interest with respect to said Property as tenants, invitees, licenses or
otherwise, and all of the respective heirs, successors, grantees, mortgages, assigns, agents,
contractors, subcontractors and employees of the foregoing.
This Declaration of Restriction is hereby intended and declared to be in perpetuity and
no re-recordation of this Declaration of Restriction under G.L. r_. 184, ss. 23--30 or any Ther law
shall ever be necessary in order to maintain the full legal effect and authority hereof z nd
Declarant and its successors and assigns, including but not limited to all subsequent owners of
the Property,hereby waive all their legal right to and shall forego any action in lavv or equity of
anv kind whatsoever attempting to contest the validity of any provision of this Decla -ation of
Restriction and shall not, in any enforcement action, raise the invalidity of,_iny provision of this
Declaration of Restriction. Notwithstanding the forgoing, the rights and obligations euritained
herein shall be enforceable against the current owner of said Property, and therefore, it being
understood and agreed that, from and after any conveyance or transfer of all or a portion of the
Property covered by this Declaration, only, the transferee of said Property shall be liable for the
performance or observance of, and shall have the benefit of, said covenants and agrecments
herein..
4. Modification or Termination of Restrictions. 'this Agreement shall not he m,>dified,
amended, changed, or terminated or waived without th. consent of the Declarant (or
Declarant's successor) as well as the consent of the 'l ow:i of North Andover Planning Board.
The Declarant as well as the Town, may enforce and, if necessary, extend this Declaration in
accordance with applicable law. Declarant agrees for itself, and its heirs, successors and assigns
to execute and record such notices of restriction as are required to extend this Declaration in
perpetuity in accordance with applicable law. The Town is hereby declared to be a benefited
party to and a holder of this Declaration and hereby appoints the 'Down as its attorney-irl-fact to
execute, acknowledge, deliver and record any such notice or instrument on its and/or their
behalf. Without limiting the forgoing, the Declarant and its successors and assigns agree to
execute any such notices and instruments in a form reasonably acceptably to Declarant upon
request of the Town or the Division.
5. Enforceability. The Town shall have the authority and right to enforce this Declaration
of Restriction. The Town shall have the right to bring proceedings at law or equity_ against any
party or parties violating or attempting to violate the terms of this Declaration to enjo'.n them
from so doing and to cause any such violation to be remedied, after providing written notice to
such party or parties . Notwithstanding the forgoing, if all or a portion of the Property is
conveved to a successor owner where a violation has occurred or will occur resulting in an
enforcement action being taken, then the 'Down may only seek such enforcement against the
owner of said lot(s) on which the violation has occurred, and therefore, it being undcrstood and
agreed that, from and after any conveyance or transfer of any portion of the Property covered'
by this Declaration, the transferee of said portion of the Property shall be liable for the
performance or observance of, and shall have the benefit of, said covenants and agreements
herein..
6. Severability. If any court or other tribunal of competent jurisdiction determines that
any provision of this Declaration of Restriction is invalid or unenforceable, such prop ision shall
be deerned to have been modified automatically to conform to the requirements for alidity and
enforceability as determined by such court or tribunal. hn the event the proy,isiorn ins alidated is
of such a nature that it cannot be so modified, the provision shall be deemed deleted from this
instrument as though it had never been included herein. In either case, the remainlrW
provisions of this instrument shall remain in full force and effect.
7. Non-Waiver. Any election by the Town as to the manner and timing of its rip ht to
enforce this Declaration of Restriction or otherwise exercise its rights hereunder shall not be
deemed or construed to be a waiver of such rights.
8. Incorporation Into Deeds. Declarant and Declarants successors and assigns, including
all subsequent owners of the Property or portions thereof, shall incorporate this Declaration of
Restriction, ill full or by reference, into all deeds. Any such deed purporting to convev any
portion of the Property without including this Declaration of Restriction ill full or by .reference
shall be deemed and taken to include said Declaration cf Restriction in full even though said
Declaration of Restriction is not expressly described or referenced therein.
9. Recordation/Registration. Declarant shall record and/or register this DecLiretion of
Restriction with the appropriate Registry of Deeds and/or Land Registration Office prior to the
issuance of a building permit.
10. Amendment and Release. No amendment or release of this Declaration of Restriction
shall be effective unless it has been approved in writing by the Town (hereinafter the "'I'own
Approval") and said amendment or release and the requisite Town Approval has been recorded
with the appropriate Registry of Deeds and/or land Registration Office.
IN WTTNESS WHEREOF, the Declarant has caused these presents to be signed,
acknowledged and delivered this day of hebruary, 2012.
BRIGHTN'IEW NORTH ANDOVER, LLC
By:
Marilynn K. Luker, President, duly .authorized.
STATE OF MARYLAND, CITY/COUNTY OF BAL"IIMORE, TO WIT:
I HEREBY CERTIFY that on this day of - _ _ 2012, before me, the
subscriber, a Notary Public of the State of Maryland, in and for the City/County aforesaid,
personally appeared Marilynn K. Duker, President of Brightview North Andover, 11C, a
Maryland limited liability company, and as such President she acknoXVled ed the
foregoing instrument to be the act and deed of said limited liability compaliv.
WITNESS my hand and Notarial Seal.
Notary Public
My Commission Expires:-
4
APPROVED AS TO FORM: At a regularly scheduled meeting held on 1'uesday. F&I'Liary 7.
2012. the Town of North Andover Planning Board voted to approve the form of this Declaration
of Restriction, and authorized the Chairman of the Planning Board to confirm the Board"s
acceptance by signing in the space provided below.
NORTII ANDOVER PLANNING BOARD
B
John L. Simons, its Chairman
Dated: February 7, 2012
ATTORNEIi'S CERTI FICA'] F
to U
ItIC PrOPOSMI, coni b"Wig care ruhrmwnt hwRuN to be kKapd oj-
real propery, consisting of 3335 acres, tulown and flun-tbered '127-5 Turnpij ,; '-,trcet
North Ando-ver, Massachusetts (we Aroperty"), we herehv certif, t(-j t'j-,
NT,orth Andover that:
Bright-view, North A. n.d.over., Lill is a Mar y1and hmate_ ii
qUalified, to do business in \1lass achusetts aA iegistered foreign linwo hakbq
mnpany, ha , a [&Mpal 1.4w 4 buiness of 218 North Cl ,id n; 3treot, je,
220, Balti-more, Nhiryland 2'121j]:
2. Brightview IlNorth Andover, LIC i'y the record owlev of the Property by "'irtuc, cit
a deed recordet.1 with the 'Esse,\ North DAw4j Reghstry (4E)ec�cels jT-,
Page
3. birightview Nordh Andover, LI, is 'a"Uh aUdIMAEA 51 "ALS,
Declaration of Resat ictaon, dated Februar�. ............ 2012, w,"Ah Said L)k"k,""a's Lr"
(the "Declarabm"):
4. the Declaration encurnimrs the fimperw nid 1�; r1of �,ubjoct to
encumbrance:; of record except as mA kmlh fi-I ',-x -�i A I a T i'J.,
the Declan-ation has been granted Ln 'I"'Cordmice "vith t�,ie terrns55
Conoitiori 7,d of the Notice w Decision - C',mltinuinCajv
(CC RCI SpNial Arc & anti Site Plan Roview Special F"er",nit, diltcd
Pe "CCRC: QXwAl MACY imued by Ole North !\-ndovur 111:1,jtu"Ll ,, bi.,ard
recorded with satid Deeds in Book Page,
Sigiipd this day of February' 2012,
SNICI,A 1, VA U'Q-,I LA.N I.:L P
...........................--.......
EXFHB1 F
1W h) Ole f0opevy and We Duclaravuln. I's
i.,Xcepdikmls and" quifllif'�Catiolm
VY, tacts. riglAs, interes, or clainis WAS ary not shown W- Ole Puba. an"r&,
but which could be asccriabla i:w jjr,, it.spec�:io�n �)t
pe,-,",,:.lis u,
2. D corlffic!s €3t >E ul'-d'u I ik7asj 01,
any other facts vvldch a cariv, survey would disclose, i1nd
shov,n by Ole public record's,
nimucTal chwjm "%+ MC niq VH dUG dA
nwy come due and pa�'ablo xftc'r ule A& IM this ArWAcat,,%,
1 PU IT CUM PMA) T0 INC 1 U W ANT IPPI 1c:AW 11 MIX 17130; 1
1101-1- Y
i—
CHICAGO TITLE INSURANCE COMPANYSChEdl ll w Pert!
.165f7tfv IQ.IIv'ST.,ETH FL,HC)MN,,MA 02110 PH0M:(61'1)21&0?S0 A-1:(617,�21MT,"7
Policy No: i 1.*
SCUEDULF,B-PART i
F_. CF,P'T'10NS;FROMCOVKRAGP'
Except as fwrovided in Schedu e 16-Fart FI,this ae'icy&)es rant i suit against kris or dattl e(gid the,,Co p@ny will not
pay costs,attorneys'fetes or expe•n eq)that Arise,la,y reason of
L 1. Real estate taxes aro paid through 2012. Subsequent real estate taxes,betterments and othtjr rrrunlclpa!
charges are®lien not yeit due and payable„plus unpaid water and sewer charges, if any.
0 2. I'Aattess disclosed on a survey entlrled° "as fol Iows:
3, The exact acreage or square footage being other than as sited In the tescriptlon sheat annexed pian,ks?
therein referred to.
Ir 4. Tide to and rights of Bathers In the adjacent streets and ways,
Q 5. Taking for the constrtictlon of railway tracks by the Town North,Andover reoorded In Bock lit,Page 200.
x 6. Easurnent to New England Telephone and Telegraph Company mcorded In Book 201, Page 611
Y T. Taking for the layout of Route 114 by the Cornmo:1wealth of€assachusetts Department&PUtalic'Ac)rk (,D.p n, !
recorded in Book 689,Page 261,as affected by Cerilficate of Entry recorded In Book 689,Page 045 arcs by
Conveyance of Rights recorded In Book 707, Page 210,
r 8, Basement to the DPW,forthe relocsition of a brook retarded in Book 693, Page 430.
U 9. Grant of easement for drainage purposes to the DPW, recorded In Book 691,Page 433.
V 10. CertlFcate regarding matter of BoGtcan Hill Development,LLC vs. Ben)arnin Farnuin, et als(Land C oL.rt Casa tic.
266427)recorded In Book6057,Page 71.
11. Conservation Restriction from Boston Hill Development, LLC to the Town of North.Andover re..c orued in Book
10282,Page 272.
x NOTE, While such matters are excluded from coverage and noted for Informational purposes only, the folio ving
rnkter(s)were recorded/'filed:
a. Order of Conditions(VEP File no.242-500) recorded In Book 3060, Page 57;as affected by Al rnendrrll?nt
recorded in Book 3060, Fla ge6T
b.Order of Conditions(DEP File no.242-870) recorded In Book 4812, Page 305, as affected by Ccirt is ate of
Compliance dated Decernebr 3,1997 recorded In Brook 4910,Page 168,
c.Notice of Decision by the North Andover Board of Appeais recarded In Boo M, Page 20 t.
d.Notice of Decision by the North Andover Board of Appeals recorded In Book 1323, Page 13,
e.Notice of Decision by the North Andover Board of Appeals recorded In Book 3060, Paige 6G,
f. Notice of Decision by the North Andover Board of Appeals recorded In Book 3066,Page 73.
*** COM'INUBD***
Pace 3 -
eAri SHS WO 02/02/12 15147:19 ALTA Loan Policy(6/1.7/06.)e Mod€fled for 0:)mifio lai Uw tooy,
CHICAGO TITLE INSURAIlICE COMPANY
x sFRANxUN sr sr r t r. ,t osz Ota,u� 02110 �x ;:to trtsca :{ t rFr Schedule w,F�r�rt l {continued) i
_
_ m.
Policy No �f, 1 g�
a
g, Order of Conditions Issued by the North Andovar COnSeAldlOn Commi lon dated C3 ober 24: 2002 r(icorde
In Book 7246, Page 73;as affected by Ext:enslur Permit Issuez!by the North Andaver Conservratiori -orramisslon
dated December 15,2005 recorded In Book 9956,Pane 69,as affected by that fV1odefication to under of
Condtilons Issued by the North Andover Consecration Commieslon dated May 24, 2006 recorded r Book
Page 36.
h, Order of Conditions Issued by the North Andover Conservation Commission(Pile No.242-1317t, rac,)nleo 1n
Book 10640,Page 107;as modified by Modification of 0trier c)f CondWons recorded l?r Haul;11344i, Pa&233,
L Notice of Decislan of 9�he Board of Appee�ts of V10 I own of North Andover recorded In Book 513'7, P ge 145.
J.Notice of Decision of th3 Office of the Planning Department of the Town€1f North Andover raccr,,jji cl if)Book
11346,Page 228.
The following tax parcel numbers provided for the property set forth In the legal duscrtption arc provided
for Informational purposee only and are not insured hereunder:
Map 107.A Black 0284 L-3 RDadway ;
Flap 107.A Block 0283 L-4 Roadway B;and
Map 107.A Block 0149 L-1 Roadway B.
ac,a
..........
issuer
CHICAGO TITLE INSURANCE COMPANY
FPLA.?MJN 9r,TM FL.,BUZTON,MA 02n;10 PH()N-'F�'(617)21G,(T750 FA�K�, z B - Part N
........................
EaY!®�yy Poficy No- 0
8 CHEDITLE B-PAR r 19
EXCEPTIONS FROM COVERAGE
In addit oa to the Watters set forth in Part I of this Sch-.dulr,the Title is subject to the f0llu-,v matters and tfic Company
insLie-s against loss or damage,sustained in thr,cvenl;that tLeyarc,not sul�cjr&iate,to thtc I'-- �)ftb .
ln.sw(J Mcrtgagc:
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