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Home My WebLink About2012-06-12 Planning Board Supplemental Materials (24) DECLARATION OF PROTECTIVE USE COVENANTS, CONDITIONS AND RESTRICTIONS This Declaration of Protective Use Covenants, Conditions and Restrictions is made as of this 7th day of June, 2012, by Cafua Realty Trust LX, LLC of 751 Main Street, Suite B, PO Box N Sanford, Maine 04073], their successors and assigns (herein collectively referred to as the "Declarant"). WITNESSETH: WHEREAS, Declarant is the current owner of real property, consisting of ONE parcel of land collectively consisting of approximately .66 acres of land, known and numbered as 1018 Osgood Street, being shown respectively, on a plan entitled "PLAN OF LAND in North Andover, Mass" owned by Cafua Realty Trust LX, LLC dated February 7, 2012, Scale I"=20' prepared by MHF Design Consultants, Inc. and whereby Parcel (1018 Osgood Street is identified in a Deed to Cafua Realty Trust LX, LLC recorded with the Essex North District Registry of Deeds in Book 12798, Page 2635 (hereinafter referred to as the"Property;" and, WHEREAS, the Declarant's Property was the subject of Warrant Article [ ] of the 2012 Annual Town Meeting for the Town of North Andover where said Article requests approval for the rezoning of the Property from Industrial 2 (I-2) to Business 2 (B-2); and, WHEREAS, the Declarant has agreed to prohibit certain uses outlined under the list of uses permitted within the Business 2 Zoning District as outlined under Section 4.127 of the Town of North Andover Zoning Bylaws; NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, and for the mutual promises and covenants contained herein, the Declarant declares that the Property is and shall be held, transferred, leased, encumbered, conveyed, improved and occupied subject to the covenants and restrictions, hereinafter set forth below: 1. Land Subject to This Declaration The real property which is, and shall be, held, transferred, sold, conveyed and occupied subject to this Declaration is the Property as defined above. 2. Use Restrictions. Notwithstanding the uses permitted within the Business 2 Zoning District as outlined under Section 4.127 of the Town of North Andover Zoning Bylaws, the Declarant agrees the Property shall not be used for the following purposes: a. Automobile service station; and, b. Taxi depot. C. Public Parking Garage. Subject to the use limitations above, the Declarant shall be permitted to use the Property for all other uses permitted by law, including but not limited to, other uses permitted under the Town of North Andover Zoning Bylaws, as amended. 3. Architectural Features: Any structure to be built under the conditions of a Site Plan Review Special Permit, as specified in the North Andover Zoning Bylaw, Section 8.3, shall conform to the maximum extent possible to "New England" style architecture. 4. Enforcement. It is expressly understood and agreed that this Declaration of Protective Use Covenants, Conditions and Restrictions shall attach to and run with the land and run for the benefit of the Town of North Andover. Enforcement of this Declaration shall be by a proceeding at law and/or in equity by the Town of North Andover, acting by and through its Planning Board, against any person or persons violating or threatening to violate any covenant either to restrain the violation and/or recover damages suffered by them for any violation thereof. The Declarant, or the Town of North Andover and their successors and assigns, shall have the full right to enforce this Declaration of Protective Use Covenants, Conditions and Restrictions both in law and at equity, and to recover damages. 5. Severability. Each and every one of the covenants, conditions and restrictions contained herein shall be considered to be an independent and separate covenant and agreement, and in the event that any one or more of the covenants, conditions and restrictions shall, for any reason, be held to be invalid or unenforceable by a court of law,then all remaining covenants, conditions and restrictions shall nevertheless remain in full force and effect. 6. Duration. All of the foregoing covenants and restrictions shall continue and remain in full force and effect at all times against the owner(s) of any lot(s) in such Property, regardless of how such title was acquired, in perpetuity, unless applicable law provides that such covenants and restrictions cannot continue and remain in full force and effect in perpetuity, in which case they shall continue and remain in full force and effect for a period of thirty (30) years from the date of recoding hereof, after which time said Declaration shall automatically be extended for successive ten(10)year periods, by an instrument which shall be recorded with the Essex North District Registry of Deeds by the owner(s) of the Property or which may be recorded by the Town of North Andover, within the time prescribed by M.G,L. c. 184, s. 27. 7. Non-Waiver. The failure or delay of the Town of North Andover or Declarant to enforce the restrictions, covenants or other provisions herein shall not be deemed a waiver of the right to do so thereafter as to the same breach or to one occurring prior or subsequent. 8. Amendment and Termination. The provisions in this Declaration may be amended, modified, and/or terminated by vote of the record title holder of the property, and with the assent of the Town of North Andover Planning Board, but such amendment, modification and/or termination shall not be effective until such time as it is reduced to writing, signed by the Property owner(s) of record, and recorded with the Essex North District Registry of Deeds. 9. Successors Bound. All of the covenants, conditions and restrictions described herein shall run with the land, and the grantees of the Property, by accepting the deed thereto, accept the same subject to such covenants, conditions and restrictions, and agrees for themselves, their heirs, administrators, successors and assigns to be bound by each such covenant, condition and restriction jointly, separately and severally. 10. Extent of Covenants, Conditions and Restrictions. The covenants, conditions and restrictions created pursuant to this Declaration: (a) shall be subject to restrictions presently of record, if any; and, (b) shall only be effective after: (i)the North Andover Town Meeting adopts the Zoning Bylaw Amendment in the form set forth in the published 2012 Annual Town Warrant, (ii) all subsequent actions shall have been completed that are necessary to cause such Zoning Bylaw Amendment to be incorporated into the Zoning Bylaw(such as approval by the Attorney General); (iii) to the extent that any referenda challenging the Town Meeting's adoption of the Zoning Bylaw Amendment or any other appeal of the Town Meeting's adoption of the Zoning Bylaw Amendment has occurred, such referendum or appeal [a] has been fully adjudicated by a court having jurisdiction over such a matter(which court upholds the Town Meeting's adoption of the Zoning Bylaw Amendment)the decision of which is not subject to appeal or from which no appeal is taken within the relevant period; [b] such referendum or appeal is dismissed with prejudice, or [c] the appeal is settled by the parties thereto with the Zoning Bylaw Amendment remaining in force and effect without any modification thereto (collectively, "Final Zoning Bylaw Approval"). IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed under seal by Cafua Realty Trust, LX, LLC, this 7th of June, 2012. Cafua Realty Trust LX, LLC, by: Ferna� q Cafua, Its Manager COMMONWEALTH OF MASSACHUSETTS ESSEX COUNTY On this 7th of June, 2012, before me, the undersigned notary public, personally appeared Fernando Cafua, as Manager of Cafua Realty Trust LX, LLyZ,'r ved to me through satisfactory evidence of identification, which was a ❑ driver's licenseersonally known to me; or ❑ personally known to 3`d party witness personally known to( , o be the persons whose names are signed on the preceding or attached document, and acknowl ged to me that he signed it voluntarily for its stated purpose. Notar Public � oiNK6 My Commission Elf JA .',�,OfMASS _ q'y PUBOGasa 4011 lotat d ACCEPTANCE BY TOWN OF NORTH ANDOVER The undersigned Board of Selectmen of the Town of North Andover hereby accept the foregoing Declaration of Protective Use Covenants, Conditions and Restrictions on behalf of the Town, Selectman Selectman Selectman Selectman Selectman Commonwealth of Massachusetts Essex, ss. , 2012 On this day of , 2012, before me, the undersigned notary public personally appeared the above-name Board of Selectmen proved to me through satisfactory evidence of identification, which was known to me to be the person whose name is signed on the preceding document in my presence and acknowledged to me that they signed it voluntarily for its stated purpose, as Selectmen of the Town of Andover. Notary Public My Commission Expires: