HomeMy WebLinkAbout20170627 Sale Agreement - Legal Document - 0 SALEM STREET 6/27/2017 881 East Street Carmine D.Tomas, Esq.
Tewksbury,MA 01876 ctomas@rmd-inc.net
978.851.0200 t
978.851.4962 f
August 2, 2017 BY EMAIL ONLY
Suzanne Egan, Esq.
Town of North Andover
120 Main Street
North Andover, MA 01845
RE: Sale of Land on Salem Street
Dear Suzanne:
As you are aware, I represent CMTF Limited Partnership as purchaser (the `Buyer") of
certain land, measuring approximately 16.2 acres in total, located on Salem Street and
owned by James Hart and Jennifer Collins (the "Property"). The Town recently received
a Chapter 61A Notice of Intent to Sell, dated July 14, 2017,together with a copy of the
Purchase Agreement, from Peter Shaheen on behalf of the sellers.
In connection with this purchase,the Buyer wants to ensure that you and the Town are
aware of the following:
1. The Buyer intends to keep the Property in Chapter 61A, and there is no
proposed change of use associated either with its purchase of the Property
or the two-year agricultural lease that pre-dates the anticipated closing date.
2. The Buyer intends to continue to use the Property for agricultural purposes.
3. In the event that any change of use is proposed in the future that would not
qualify for continued protection under Chapter 61A,the provisions of
Chapter 61A with respect to notification and options to purchase will apply
at that time.
if you have any further questions or need any additional information, please let me
know. Thank you.
Sincerely,
armine D.Tomas,
Attorney for CMTF Limited Partnership
cc: Peter Shaheen, Esq.
SHAHEEN GUERRERA & O'LEARY, LLC
Jefferson Office Park
Peter G.Shaheen** 820A Turnpike Street
Nicholas S.Guerrera** North Andover,Massachusetts 01845
Sean P.O'Leary** Telephone: (978)689-0800 Toll Free: (866)665-5834
Carol A.O'Learyf Facsimile:(978)794-0890
Kyle J.Scandore** E-mail:pshaheen@sgolaw.com
**Admitted in MA and NH
fi Admitted in MA,NH,
ME and CT
July 14, 2017
HAND DELIVERED TO:
North Andover Board of Selectmen
120 Main Street
North Andover, MA 01845
North Andover Board of Assessors
120 Main Street
North Andover, MA 01845
North Andover Planning Board
120 Main Street
North Andover, MA 01845
North Andover Conservation Commission
120 Main Street
North Andover, MA 01845
SENT VIA CERTIFIED MAIL TO:
State Forester
c/o Commissionor of Department of Conservation and Recreation
251 Causeway Street, Suite 900
Boston, MA 02114
RE: Parcel 210/37D-0001 0 Salem Street,North Andover
Parcel 210-37C-0017 0 Rear Salem Street,North Andover
MGL. c. 61A Section Notice of Intent to Sell
Dear Sir/Ms:
Please accept this letter as notice of the interest to sell the above referenced
parcels of land by the landowners, James Hart and Jennifer Collins. As required by the
statute I have attached a certified copy of the executed purchase and sale agreement
specifying the purchase price and conditions of the proposed sale. I have also included
the assessors' property record cards for each parcel. The tax map showing these parcels
is attached to the purchase and sale agreement.
Please advise me within 30 days if this notice is in any way insufficient or fails to
comply with the statute. Please notify me within 120 days if the Town wishes to exercise
its right of first refusal. If you have any questions, don't hesitate to call me.
Sin
Peter G. Shaheen
Enclosures
cc: Client
Greg Eaton, Esquire
Carmine Thomas, Esquire
GERT9 a G1 Pyj
Attest
Date ------- 2 2_ 61L
44
This 2� dayof June 2017
1. PARTIES
JAMES B. HART and JENNIFER COLLINS; with an address of 226 Salem Street, North Andover,
Massachusetts 01845,hereinafter called the SELLER,agrees to SELL and
CMTF LIMITED PARTNERSHIP, with an address of 303 Commonwealth Avenue, Unit 1, Boston,
Massachusetts 02115, hereinafter called the BUYER, agrees to buy, on the terms and conditions herein set
forth,the following described premises:
2. DESCRIPTION
That certain 3.91-acre parcel of land known as Assessor's Map 37C,Lot 17 and identified as'Parcel 1"on the
plan attached hereto as Exhibit A (the "Lot Plan"); and (11) that certain 12.3-acre parcel of land known as
Assessor's Map 37D,Lot 1 and identified as"Parcel 2"on the Lot Plan.For Title reference of the premises see
Deed of Hannah Stork to Mary S.Hart,dated January 13, 1989 and recorded with the Essex County Registry of
Deeds in Book 2873,Page 102.
3. TITLE/DEED
Said premises are to be conveyed by a good and sufficient quitclaim deed running to the BUYER,or to the
assignee or nominee designated by the BUYER by written notice to the SELLER at least seven (7) days
before the deed is to be delivered as herein provided, and said deed shall convey a good and clear record
and marketable title thereto,free from encumbrances,except
(a) Provision of existing building and zoning laws;
(b) Such taxes for the then current year as are not due and payable on the date of the delivery
of such deed;
(d) Any liens for municipal betterments assessed after the date of this agreement;
(a) Easements,restrictions and reservations of record,if any,so long as the same do not,or if
exercised could not,prohibit or interfere with the BUYER's use of said premises;
The parties acknowledge and agree that the deed to the BUYER shall include a deed restriction,effective for -
a period of fifteen (15)years from the date of transfer of the premises, during which period BUYER shall be
permitted to use the premises for agricultural purposes only, meaning the raising, grazing, and training of
livestock and the planting and cultivation of wheat, hay,and other crops,together with any required clearing
and maintenance of the premises and construction of any barns,shelters, fencing,utilities, and any related
structures or improvements required in connection therewith. It is expressly agreed that, for the duration of
such deed restriction, non-agricultural uses shall be prohibited within the premises, including, without
limitation,construction of any single family home or other residential structure.
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4. PURCHASE PRICE
The agreed purchase price for said premises is$1,260,000.00,of which
S 50,000.00 have been paid as a deposit this day and
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$ 1,200,000.00 are to be paid at the time of delivery of the deed in cash,treasurer's or bank check
or bank attorneys IOLTA check.
6. TIME FOR PERFORMANCE;
Such deed is to be delivered after expiration of the lease period as set forth in paragraph 34 and within 30
days after the expiration of the GL c.61A sec.14 right of first refusal as set forth in paragraph 31 herein at a
mutually agreeable time at the closing attorney's office provided it is within Essex County,otherwise at the
North Essex County Registry of Deeds unless otherwise agreed upon in writing.
6. POSSESSION AND CONDITION OF PREMISES
Full possession of said premises, free of all tenants and occupants, is to be delivered at the time of the
delivery of the deed, said premises to be then(a)in the same condition as they now are,reasonable use and
wear thereof excepted, and (b) not in violation of said building and zoning laws, and (c)in compliance with
provision of any instrument referred to in clause 3 hereof.See also the Due Diligence provision set forth in the
Rider.
7. EXTENSION TO PERFECT TITLE OR MAKE PREMISES CONFORM
If the SELLER shall be unable to give title or to make conveyance, or to deliver possession of the premises,
all as herein stipulated, or if at the time of the delivery of the deed the premises do not conform with the ;!
provisions hereof, the SELLER shall use reasonable efforts to remove any defects in title, or to deliver
possession as provided herein,or to make the said premises conform to the provisions hereof,as the case
may be,in which event the time for performance hereof shall be extended for a period of not more than thirty
(30)days. SELLER shall not be required to expend in excess of of 1%of the purchase price to effect such
cure, exclusive of real estate taxes and liens of which,or the underlying basis of which,SELLER is presently
aw are.
8. BUYER'S ELECTION TO ACCEPT TITLE
The BUYER shall have the election, at either the original or any extended time for performance, to accept
such title as the SELLER can deliver to the said premises in their then condition and to pay therefor the
purchase price without deduction,in which case the SELLER shall convey such title,except that in the event
of such conveyance in accord with the provisions of this clause, if the said premises shall have been
damaged by fire or casualty insured against, then the SELLER shall, unless the SELLER has previously
restored the premises to their former condition,either
(c) pay over or assign to the BUYER on delivery of the deed, all amounts recovered or recoverable on
account of such insurance, less any amounts reasonably expended by the SELLER for any partial
restoration, or
(d) if a holder of a mortgage on said premises shall not permit the insurance proceeds or a part thereof
to be used to restore the said premises to their former condition or to be so paid over or assigned,
give to the BUYER a credit against the purchase price,on delivery of the deed,equal to said amounts
so recovered or recoverable and retained by the holder of the said mortgage less any amounts
reasonably expended by the SELLER for any partial restoration.
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9. ACCEPTANCE OF DEED
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The acceptance of a deed by the BUYER or its title nominee or assignee as the case may be, shall be
deemed to be a full performance and discharge of every agreement and obligation herein contained or
expressed except such as are,by the terms hereof, to be performed after the delivery of said deed.
10. USE OF MONEY TO CLEAR TITLE
To enable the SELLER to make conveyance as herein provided,the SELLER may, at the time of delivery of
the deed, use the purchase money or any portion thereof to clear the title of any or all encumbrances or
interests, provided that all instruments so procured are recorded simultaneously with the delivery of said deed
or, in the case of institutional mortgages, arrangements for subsequent recording are made per customary
practice.
11. INSURANCE
Until the delivery of the deed,the SELLER shalt maintain insurance on said premises as follows:
Type of Insurance Amount of Coverage
As presently insured
All risk of loss shall remain with the SELLER until the closing occurs and the deed is recorded.
12. ADJUSTMENTS
Taxes for the then-current fiscal year shall be apportioned as of the day of performance of this agreement
and the net amount thereof shall be added to or deducted from, as the case may be, the purchase price
payable by the BUYER at the time of delivery of the deed.
13. ADJUSTMENT OF UNASSESSED AND ABATED TAXES
If the amount of said taxes is not known at the time of the delivery of the deed,they shall be apportioned
on the basis of the taxes assessed for the preceding fiscal year,with a reapportionment as soon as the
new tax rate and valuation can be ascertained; and, if the taxes which are to be apportioned shall
thereafter be reduced by abatement,the amount of such abatement, less the reasonable cost of obtaining
the same,shall be apportioned between the parties, provided that neither party shall be obligated to
Institute or prosecute proceedings for an abatement unless herein otherwise agreed. _
14. DEPOSIT
All deposits made hereunder shall be held in a non-interest-bearing escrow account by Seller's attorney as
escrow agent subject to the terms of this agreement and shall be duly accounted for at the time for
Performance of this agreement.In the event of any disagreement between the parties,the escrow agent shall
retain all deposits made under this agreement pending instructions mutually given by the SELLER and the
BUYER or order of court of competent jurisdiction.
15. BUYER'S DEFAULT; DAMAGES
If the BUYER shall fail to fulfill the BUYER'S agreements herein,all deposits made hereunder by the BUYER
shall be retained by the SELLER as liquidated damages,and this shall be SELLER'S sole legal or equitable
remedy. BUYER further hereby agrees that the deposit hereunder is a reasonable forecast of SELLER'S —
losses that would result if BUYER failed to consummate this transaction, which losses could result from
SELLER'S inability to resell the Premises for the same agreed purchase price due to any number of presently
undeterminable factors.
If the SELLER shall fail to fulfill the SELLER'S agreements herein,the BUYER may either:
(a) Terminate this Agreement by written notice delivered to SELLER on or before the Closing date, in
which event the Deposit and all interest accrued thereon shall be returned to BUYER, and BUYER and
SELLER shall have no further obligations one to the other with respect to the subject matter of this
Agreement except as specifically provided in this Agreement; or
(b) Seek specific performance of this Agreement against SELLER.
16. LIMITATION OF LIABILITY
If the SELLER or BUYER executes this agreement In a representative or fiduciary capacity, only the principal
or the estate represented shall be bound, and neither the SELLER or BUYER so executing, nor any
shareholder or beneficiary of any trust, shall be personally liable for any obligation, express or implied,
hereunder.
17. WARRANTIES AND REPRESENTATIONS
The BUYER acknowledges that the BUYER has not been influenced to enter into this transaction nor has it
relied upon any warranties or representation not set forth or incorporated in this agreement or previously made
in writing,except for the following additional warranties and representation,if any made by either the SELLER
or the Brokers:NONE
18. CONSTRUCTION OFAGREEMENT
This instrument, executed in multiple counterparts, is to be construed as a Massachusetts contract,is to take
effect as a sealed instrument,sets forth the entire contract between the parties,is binding upon and Inures to
the benefit of the parties hereto and their respective heirs, devisees, executors, administrators, successors
and assigns, and may be cancelled, modified or amended only by a written instrument executed by both the
SELLER and the BUYER. If two or more persons are named herein as BUYER their obligations hereunder
shall be joint and several. The captions and marginal notes are used only as a matter of convenience and are
not to be considered a part of this agreement or be used in determining the intent of the parties to it.
19. TITLE INSURANCE
SELLER agrees at the closing to execute a statement under oath to any title insurance company Issuing a
policy to BUYER and/or BUYER'S mortgagee to the effect that:(1)there are no tenants, leases or parties in
possession of the Premises, except as set forth herein, if at all, and (2) SELLER has no knowledge of any
work having been done to the Premises which would entitle anyone now or hereafter to claim a mechanic's or
materialmen's lien on the Premises. SELLER further agrees to execute such other documents as may be
reasonably required as a matter of standard practice by counsel for BUYER or BUYER'S Title Company In
connection with transactions of this kind.Title shall be insurable for the benefit of BUYER on standard ALTA
forms at normal premium rates without exceptions other than as permitted per this Agreement.
20. INTERNAL REVENUE CODE SECTION 1446
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SELLER certifies that it is not a foreign trust and therefore,the BUYER is not required under Section 1445 of
the Internal Revenue Code to withhold any taxes upon the disposition of the Premises to the BUYER, and
SELLER agrees to execute an affidavit to this effect at the closing.
21. TITLE STANDARDS
Any matter which is the subject of a title, practice or ethical standard adopted by the Massachusetts Real
Estate Bar Association at the time of delivery of the deed shall be governed by said standard to the extent
applicable.
22. NOTICES
Any notice or demand required or permitted to be given hereunder shall be given in writing by hand delivery,
first class certified or registered mail, return receipt requested, or by recognized overnight mail, in a sealed
envelope, postage prepaid,to be effective when properly sent under this paragraph and received, refused or
returned undeliverable. Notice shall be addressed to the parties at the addresses specified above.
23. NO BROKERS
BUYER and SELLER mutually warrant and represent to each other that neither has dealt with a real estate
broker or salesperson in connection with this transaction, and that neither was directed to the other by any
such agent or broker, and each agrees to indemnify and hold the other harmless against all costs, damages,
expenses or liability, including attorney's fees, incurred by the other arising out of or resulting from breach of
this warranty or failure of this representation. The provisions of this paragraph shall survive delivery of the
deed.
24. NO LITIGATION
SELLER represents that it has no knowledge of any litigation, pending or threatened, affecting the
premises and that it has no knowledge of any taking, condemnation, pending special assessments
affecting the premises, actual or proposed.
25. EXTENSION
In the event the closing date is extended in accordance with Paragraph 7 herein,then such extension shall be
for as short a time as is required to effect such necessary cure to the title or condition of the premises.
26. NO NOTICE OF VIOLATIONS
The SELLER states that as of the date hereof the SELLER has received no written notice from any
municipal, county, state or federal agency asserting or alleging that the premises are or may be in
violation of the provisions of any rules and regulations, municipal, county, state or federal codes,
ordinances,statutes or regulations relating to zoning,building,environmental orhealth.
27. OUTSTANDING MORTGAGES
The mortgage(s)currently encumbering the premises are listed herein.The SELLER authorizes counsel
for the BUYER's lender(or counsel for the BUYER if a cash transaction)to obtain payoff information
respecting such mortgage(s)(if none, so state)
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28. AUTHORIZATION TO SIGN EXTENSIONS AND NOTICES
In order to facilitate the execution and delivery of certain documents contemplated hereby,the parties grant
to their respective attorneys the actual authority to execute and deliver on each party's behalf any
Agreement modifying the time for the performance of any event hereunder, or any notice that may be
given under this agreement, and the parties may rely upon the signature of such attorneys(including
faxed signatures)unless they have actual knowledge that a party has disclaimed the authority granted
herein,
29. ADDITIONAL WARRANTIES AND REPRESENTATIONS
There are no leases, licenses or occupancy agreements in force and effect covering the use and occupancy
of the Premises nor shall BUYER be purchasing the Premises subject to any such leases, licenses or
occupancy agreements. In addition, SELLER has full power and authority to transfer the Premises as
provided herein.
ADDITIONAL PROVISIONS
30. During the lease term,but prior to any extension thereof,CMTF shall be permitted to-perform,at its sole cost,
certain due diligence reviews with respect to the Property(the"Due Diligence Period'),including,without
limitation,such reviews,tests,and investigations regarding title,survey,and the environmental condition of the
Property as CMTF deems necessary or appropriate.During the Due Diligence Period,CMTF and its
representatives shall have the right to enter onto the Property for the purposes of making engineering studies
and conducting geological and environmental studies,performing surveys,and making general inspections.
CMTF agrees to restore the Property to substantially the same condition as existed prior to such inspections
and investigations. CMTF shall indemnify the Sellers and hold them harmless from any claim,damage,injury,
or expense that is caused by CMTF and/or its agents when performing the Due Diligence;provided,however,
that CMTF shall have no liability to the Sellers for any claim,damage,injury,or expense arising out of
conditions existing in,on,under or upon the Property merely discovered, but not caused,by CMTF or its
agents.In the event that the results of the Due Diligence are not satisfactory to CMTF in its sole discretion,
CMTF shall deliver written notice thereof to the Sellers and this Agreement automatically shall be deemed null
and void.
31. MGL c.61A Notice: Buyer acknowledges that the Property or a portion thereof is classified as agricultural land
and subject to GL.C.61A including for a period of 120 days after due notice the town of North Andover's first
refusal option to purchase the land.Seller agree to provide notice compliant with section 14 of GL 61A
promptly after execution of this Agreement.
32. Buyer acknowledges and agrees that the deed for the Property shall be subject to a deed restriction, effective
for a period of fifteen (15)years following the conveyance, prohibiting any further subdivision of the Property,
and prohibiting non-agricultural uses within the Property Including,without limitation,construction of any single
family home or other residential structure.
33. Buyer acknowledges and agrees that it shall use diligent efforts to obtain, at its sole cost the subdivision
approvals (the "Subdivision Approvals") required to carve off from the Property the land areas shown as
"Excluded Area I"and"Excluded Area 2"(collectively,the"Excluded Land")on the plan attached as Exhibit B
(the"Excluded Land Plan"). In the event that such Subdivision Approvals are granted, such Excluded Land
shall be appended to the two parcels as shown on the Excluded Land Plan, and shall be excluded from the
sellers' conveyance at closing. Sellers agree to cooperate with Buyer's efforts to obtain the Subdivision
Approvals, and shall sign such applications and other documents as are reasonably required in connection
with the Subdivision Approvals, and shall attend public hearings if requested to do so. In the event that,
despite Buyer's diligent efforts,the Subdivision Approvals are not granted by the closing date,Buyer shall be
permitted to Purchase the entire Property,without any further subdivision obligations.
IVA
34. Lease: Seller and Buyer will enter into a lease granting CMTF exclusive use of the Property for agricultural
purposes only. Said Lease shall be In effect for a period of one (1) year with an option to extend for an
additional year. Rental shall be in the amount of$20,000 per year.The$20,000 rental payment shall be
due on the date of execution of the lease, and the payment for the extension period shall be due upon
commencement of the extension term. The use of the leased premises shall be solely for agricultural
purposes, meaning the keeping and grazing of horses and the planting and cultivation of wheat, hay, and
other crops,together with any required clearing and maintenance but including the right to construct barns,
shelters, fencing, utilities, and related structures or improvements required in connection therewith. The
Leased Area shall be controlled and used exclusively by Buyer.
35. Right of First Refusal. In the event that James B. Hart,as owner of the parcel Identified as the"ROFR
Parcel" on the Lot Plan, desires to Transfer (as defined in paragraph 6 hereof) any interest in the ROFR
Parcel,CMTF shall have a right of first refusal with respect thereto,as follows:
In the event that Mr. Hart decides to Transfer any portion of the ROFR Parcel, he shall deliver to CMTF a
written notice(the"Proposed Sale Notice")(i)certifying that he has received a proposal from a bona fide third
party to purchas
e all or a portion of the ROFR Parcel and that he wishes to accept such proposal, (ii)giving
the name of the individual or entity making such offer(the"Prospective Purchaser"),and(III)enclosing a copy
of the proposal signed by the Prospective Purchaser.
CMTF shall,within thirty(30)days after receipt of the Proposed Sale Notice,deliver to Mr.Hart a notice(the
"Notice of Election")which shall specify whether CMTF will approve the transfer to such Proposed Purchaser,
or whether CMTF shall instead purchase the ROFR Parcel on substantially the same terms and conditions. If
CMTF fails to respond within said thirty (30) day period, CMTF shall be deemed to have approved the
transfer.
36. This agreement shall be binding on and inure to the benefit of the parties hereto and their respective
successors and assigns. This agreement constitutes the entire understanding and agreement between the
parties and supersedes all prior agreements, representations, and understandings of the parties relating to
the subject matter hereof. If any provision of this agreement is found to be void,voidable, or unenforceable,
the remaining provisions of this agreement shall remain in force.This agreement may not be modified except
by an instrument in writing signed by the parties. This agreement and all documents and instruments to be
delivered hereunder shall be interpreted, construed, and enforced according to the laws of the
Commonwealth of Massachusetts.
37. Any title matter or practice matter arising under or relating to this Agreement which is the subject of a title or
practice standard of the Massachusetts Real Estate Bar Association("REBA")shall be governed by said title or
practice standard to the extent applicable, and to the extent such title standard or practice standard does not
contradict Massachusetts case law and/or any expressed term or condition of this Agreement.
38. Any claim, dispute or other matter in question arising out of or related to this agreement, including,
without limitation, the lease, shall be subject to non-binding mediation as a condition precedent to the
institution of legal or equitable proceedings by either party. A request for mediation shall be filed in
writing with the other party and with the Real Estate Bar Association(REBA). The request may be made
concurrently with the filing of legal or equitable proceedings but, In such event, mediation shall proceed
in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period of 60
days from the date of filing,unless stayed for a longer period by agreement of the parties or court order.
The parties shall share the mediator's fee and any filing fees equally. Written and fully executed and
delivered agreements reached by the parties In mediation shall be enforceable as settlement
agreements in any court having jurisdiction thereof. If the parties do not resolve a dispute through
mediation,the method of binding dispute resolution shall be litigation in a court of competent jurisdiction,
[Signatures on following page]
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The parties agree that this Agreement maybe signed by faxed orscanned signatures and original ink signatures shall
not be required.
SELL ERS BUYER
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CMTF LIMITED PARTNERSHIP
Jams art Frances D. Kettenbac ,General Partner
Date:
Jennifer Collins
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CMTF LIMITED PARTNERSHIP
James Hirt rancea�bach,Gonoromartner
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