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HomeMy WebLinkAbout2009-10-01 Historic Preservation Restriction to the Trustees of Reservations Bar 11786 Ps 282 � 43 443 HIST LI R E Y FA IONRESTRICTION TO THE TRUSTEFS F RESERVATIONS 1. G Al+[')l'QR.CLAUSE. Bdgewood retirement Community, Inc., a not-for-profit corporation organized tinder the co provisions of M.G.L. c. 180, having an address of 575 Osgood Sum, North Andover, Massachusetts 01845 (the "Grantor"), for nomhial consideration of Ten Do]lars,paid, the receipt ' and safficleriq of which are hereby aoknowleclged, and pursuant to Sections 31, 32 and 33 of o M. r,L. c. 184, does hereby grant and convey, w1th quitclaim covenau(s, to The Trustees of 4A Resezvations, a Massachusetts charitable corporation established under Chapter 352 of the A.cIs z of 1891, having an address of 572E823ex Street, Bevorly, Masm htiselts 01315 the " xraiatee"), a v historic preservatim restriction (sometimes referred to as the, Restriction), in perpetuity and exclusively for historic preservation purposes, upon certain land and the exterior of the structure th v on the "Building") located in Essex County in tlic Town of North Andover, Massachusetts consisting of the Deacon John Osgood House more patticularly described in Exhibit A, attached herac, commonly known and numbered as 547 Osgood Street, North Andover, Massachusetts 01845 (tire land and Building collectively referred to herein as the "Frew ises'°). w For the Grantor's title see Rssex North District Registry of Deeds Book 9223, Page 177. �I q��7`,d46�4L4il�684$3.6� 1 Bk 11786 Pq283 #28548 11. PVRPOSE. The Building is a historically and architecturally significant me idence, which stands as an example of the 18th centtitry Waal nature of North AndoveF, lvlassachmsetts, illustrates aesthetics of craftsmanship and setting, and possesses integrity of irnaterials and workmanship. `Ibe parties agree that tha preservation of the exterior of the Building wiii coraribide to the preservation and maintenance of the character ofthe Town of North Andover. Accordingly, it is the purpose of this Restriction to assure that the ar�;hiteetural, historic, cultural and associated foatures of the exterior of the Building be retained substantially in its current appearance (as improved by the repair and replacement activities allowed under this l e$triction) fof! historic preservation purposes and to prevent arpy material change of the exterior of the Building that will signifimtly impair or interferes with the Building's historie preservation values. 111. A TO 'S. O VENANI AND CONDITIONAL &DM..RESERVED,RM FITS. A. tiirW&s Covenant. Grantor agrees that {grantor shall not relocate (hi,- Building from ils current locative on the Land, hi addition, said subject to the provisions of paragraph TV( ), and of the following ser umce, Gramor agrees at all times to maintain the Building in sound structural condition and a good state of repair in a ordance with the terms of this paragraph; it isGrantor's inters€ that thr, Building shall be maintained in a physical appearance that is reasonably �iirnilar to its current appearance and Grantor will undertake reasonable periodic maintenance and repair of the Building so as to insure its ton#intied stru0 l integrity. to the evrmt that thte Building suffers any type of casualty damage, or if the, continued s#ructural integrity of the Building requires maintenance or repair 2 Bit 11786 Pg284 42 548 costing an unreasonably excessive aniount, the Grantor Effiall provide written notification to the Gmntee and to the North Andover Historical Commission of such even#, and Grantor, Grantee and the North Andover historical Commission shall reasonably confer with each other as to an appropriate course of action in view of the cirountstances. lifter such consultation, the Grantor may ei#her restore the Building to its previous appearances or if the, Building requires tnaintewmcc or repair costing an unreasonably excessive amount, Orantor map demolish the Building, and if so demolished this Restriction shall wi-minate and be of no further force anid effect and therealler Grantor may use the Prmnises for any lawful purpose fmc of this Restriction, B. Grantor's Conditional Riglits, ], ortditloral Rights.� igi1'!#g�Apsoyal by Grantee. Except as otlreE�xisc provided herein, wilhout #hc prier express written approval of the Grantce, which approval stiatl not be umvasonably withheld, conditioned or delayed, Ciranlor shall not make any material changes to the exterior of the Building. Activities b Grantor to maintain the Building which are not intended to change the general appearance of the exterior of the Building shalt not require the prior approval of Gran(". Any material changes which Grantor proposes to be made to the exterior of the Building, which would require a Building Permit to be issued by the Town of North Andover shall also require that the North Andover Historical Commission be advised Df and approve any such material changes to lh� exterior of the Building. (1435N492 AA01R&M-6) 3 . Hmjew ofGrantor's Re Quests for Approyai, In the evert Grantee's prior approval is required, the Grantor stall submit to Grantee, for Grantee's approval, two ) copies of information inncluding plans, specifications and designs) identifying the proposed activity with reasonable specificity. In comicction therewith, Grantor skull also submit. to Grantee a timetable for the proposed activity sufficient to permit Grantee to monitor such activity. Within thirty (30) days of receipt of Grantee's receipt of any written request for approval hereuft&r, Grantee shall certify in writing that. (a) it approves the request, or (b) it disapproves the request as submitted, in which case Grantee shall provide Grantor with written suggestions for modification or a vwrrittun explanation for Grant 's disKpproval. Any failure by Grantee to act within thirty (30) days of receipt of Grantor's submission or resubmission of requests shall be deeined to constitute approval by Grantee of the request as submitted and to permit Grantor to undertake the proposed activity in accordance with the request submitted. cet'tificate of such failure by Grmlce, to act, exerated by Grantor, and including identifying information for the subject plans, specifications and designs, when and if recorded in the Essex Nortt District Registry of D"&prior to the recording of any oontrary Certificate by Grantee, skull be conclusive evidence of such fact. 3. atgLqdqrds .for Review. In exercising any authority created by the Restriction to inspect the Premises, to mvievwr any construction, alteration, repair or maintenaniae or to review casualty damage, Grantee shall at a[] limp's act in a commerciBily reasonable manner. �143�71�4SA�188983,5� 4 fy' Bk 11786 Pg286 #2854 C. Grantor's Reserved Rights, 'I7xe following rights, uses, and activities of or by Grantor on, over, or under the Premises and the BnildiDg are permitted by this Restrict ion and by Grantee without further approval by the Ormwe. 1. the right to engage in all those activi tics and uses that: (i) ere pe'rmi€ted by governmental statute or regulation, and(ii) are not inconsistent with the purpose of this Restriction to maintain the exterior of the Building substantially in its can-ent condition; . the right to maintain and repair the I WIding, for the purpose of retaining in good condition the appearance of tht exterior of the Building. Substantial changes in appearance, from that existing prior to the maintenance and repair require the prior approval of the Gruttee in acco;dance with the provisions of paragraph HI(B); 3. the tight to paint the exterior sheathing of the Building any of the following colors: white, off white {and any version thereof} and any of the colors of t inn various Cottages constructed by Grantor under the 2008 Special Permit issued to Cantor by the North Andover Planning Board. Grantor ages to provide written notification to the North Andover Historical Commission at sucks times as Grantor intends to change the exterior color of the Building, and to obtain the approval of'the North Andover Ilis€orical Commission, which approval shall not be unreasonably withhold,conditioned or delayed, 4. The right to use the Land(a) for all custornary uses appu tenant to a Residential Structure and (b) all uses customarily associated with a Continuing Care Retirement Community including the right to install temporary or permanent accessory structures for residential or Cor d ruing Care Retirement Community uses IV. ENFORCEMENT. A. This Restriction shall be adininis€erect on behalf of the Grantee, jointly and severally, by its duly appointed members and agents. This Restriction shall be enforced by the Grantee in its sole discretion, Nothing herein shall impose upon the Grantee arty duty to maintain or require that the Building be maintained in any particular state or condition, notwiths=dilag the, Grantee's acceptance thereof. } t�atars�akao�s��a�,�t 5 Hk 11786 Pg287 # 8548 B. In the event that a breach of this restriction by the Grantor or by a third party comes to the attention of the Grantec, the Grantee must notify the owner of record (the Twnor") to writing of such bresch and of that portion of the Premises and Building where the breach occurred. Said Owner shall have ninety (90) drays alter receipt of such notice to undertake cations, including restoration of the Premises and Building, flrat are reasonably calculated to oormct svAftiy the cAmditions constituting such a breach, ff the said Owner fails to take such corrective action, 1he Grantee may at its discretion undertake stxh actions, including appropriate legal proQeedings,as are reasonably necessary to efil`ect such eorreetiorns. C. NotWng oontained in this Restriction shall be construed to entitle the Grantee to bring any action against the Grantor for any injury to or change in the Building or the Premises resulting froth causes beyond the Gram is control, vnoluding, but not limited to, fire, flood, storm, =rth moverrrent, and trespass on the Building or the Premises or from any Action taker by the Grantor under i) emergency conditions to prevent, abate or mitigate injury to or nuisance caused by the Building anchor the Premises resulting from F;uQh causes or(ii) sli t, writwn erdcr of any governmental authority(federal, state or municipal). B, The Grantor, and thma#fer the record sweessors and assigns of the Grantor, agree to reirrbxtrse the Grantee for all reasonable costs and expenses incurred in eriforeing this Restriction or in remedying or ahatiag any violation Thereof E. By its acceptance of this Restriction, the Grantee sloes not undertake any liability or obligation relating to the condition of the Building or the Premises. F. Any election by the Grantee as to die manner and txrrring of its right to cn oree this I estriction or otherwise exercise its rights hc:munder shall not be deerned or cons#rued to be a waiver cf such rights. (143ZA648243A4168993_61 6 Bic 11786 Pc 88 #28548 V. ACCESS. This Restriction hereby conveyed rives not gist to the Grantee, to the general public, Dr to any ether person any right to enter upon the Pwmises, except that the Gnuitor hereby grants to the Grantee and its successors at law, and grwi s to the North Andover Historical Commission, after reasonable prior notice to Chantor the right to enter the premises in a reasonable manner and at reasonable times, and always in the presence of s representative of Grantor for the purposes of inspecting the premises and the exterior of the Building to determine wnipliance herewith. The rights hereby granted shall be in addition to, and not in limitation of, any other rights and reme iez available to the Grantee for cnforc ment of Ihis Restriction. V1. SUBSEQUENT'LR SIXM, The Grantor agrees to incorporate by re&rcncc the terms of This Rcstriction in any deed or other regal instrument which divests the Grantor of any interest in all or a portion or the Premises, including, without limitation, a leasehold interest. After the recording of this Rcstriotion, the tern "Grantor" as used herein shall mean tlrc fee record owner of the Premises, from time to time, and the Cirrantoes obligations and liabDides hereunder shall only be thosa arising during such person's term of ownership. VII. ASSIGNABILITY. ,A., Runnina of the Burden. Except as provided in paragraph III,A. and I .C, the barden of these restrictions shall run with the laud in perpetuity and shall be binding on all future owners of an interest sherein. The right of tnforcertteut shall be u provided fof in MGM Chapter 184, Section 32, as enacted by the Acts of 1969, Ch. 656, Sec. 5, as it may be arncnded from time to time. i Ga�xtaz��noraa�s�,�� 7 s Bic 11786 Pg2 8 9 #2 85 4 8 t B. Execution of Enstrwuents. The Grantee is authariFed to record or ale any notices or inslniments ii c=ssary to assure ib perpetual enforceability of this Restriction. C. R uing of the Benefit. The Restrieiion hereby imposed is in gross and is rya# for the benefit of or appurtenant to any particular lai3ds. The R.estrielion shall not be assignable, except with the prior written approval of the Grantor or its successors or assigns then owning the Premises in each instance. in the event such approval is obtained, this Restriction may be assigned only to a govi,-mmentRl body or organization whose purposes at the time of assignment include preservation of historic property provident, however, that (i) as a condition of any assignment, the Grantee requires that tine purpose of lhis Reatriction conflnue to be carried out, and (H) the assignee, at the time of assignment, qualifies under Sfotion 32 of Chapter 184 of the General Laws as an eligible donee to receive this Restriction directly. The burden of this Rest'riction hcreby imposed shall run with the premises in perpetuity and shall be binding upon all future owners of any interest €herein during their term of ownership. VIM RELFA,5E AND EXTINGUISHMENT. A. Grantee's ReegiZ of Property Right. The Grantor and Ike Grantee agree tha€ the donation of#hip Restriction gives rise for purposes of this paragraph to it real prnpr,- y righl, immediately vested in the Granue, with a fair market value that is at least equal to the proportionate value that this Restdotion determined at (fie time of its Y"ording at the Rssex North District Registry of Deeds bars €o the value of thte unrestricted Premises at that time. B. Value of Grantee's Properly Right. Such proportionate value of the Grantee's property right shall rernain constant. C. Ri alit of Qran(ee jq Recover Value at Die osition. If any umirrenca ever gives rise to a tinguishrnent or other release of the Restriction under applicable law, then {1432 7564 RMAO i BS483_6} 8 Rk 11786 Pg 90 # 28548 the Gxrwee, on a subsect=t sate, exchange or involuntary conversion of the Premises, shall be entitled to a portion of the prroceeds equal to such proportionate valve, subject, however, to any applicable law which expressly provides for a different disp ition of proceeds; and further provided €hat upon the termination of this Restriction pmuant to Paragraph I LA Grantee shall be entitled to NO portion of any such proceeds. D. GrantorIGTantee Cp0eration Brgarding Public Action. Whenever all or any part of the Premises or any interest therein is taken by public authority under power of ernilleat doniain or other act of public authority while this Restriction is in effect, then the Grantor and the Grantee shall cooperate in recovering the full value of all direct and consequeatial damages resulting from such action, and all related expenses incurred by the rttntar and the Grantee in c-onn ton with said recovery shall first be pain out of any rccoyered proceeds, and the romaining proceeds shall be distributed between the Grantor or its successors and assigns of record, and the Grantee in shares equal to stieh proportionate value. L ContinuiLng Trust of Grantee's Sbare of Propce& of Regiriction This oaition. The Grantee shall use its share of the proceeds in a manner consistent with the preservation purposes of this grant. JXs ESTOMIEL CERTIOCATES. pert request by the Grantor, thr, Gnmtee shall witbin twenty ( 0) days execute and deliver to the Grantor any document, including an emppei certificate, which oei#i#ies the Grantor's ccnlptiance with any obligation of the Grantor contained in this restriction. , SEVERABILITY AND CONSTRUCIJON If sny section or provision of this Restriction shall be held to be unenforceable by a court of competent jurisdiction, this Restrictlon shall be construed as though such section had not peon t W32 4824 I08983.6) 9 r Bk 11786 P91 # 848 included fit it. If any section or provision of this Restriction sharil be subject to 1wo wnstrucdons, one of whj6 would render such section or provision invalid, theft such section or provision shall be given the construction that would render it valid. If any section or provision of this restriction is ambiguous, it shall be interpreted in accordaluce with the policy and provisions expressed in M,G,L. c. 184, Sections 31 through 33. i. EFFEUIEVE VATE. This Restriction shall be of betivc wherM the Grantor and the Grantee have executed it, and this docurmrtt is duly recorded in the Hssex Forth District Registry of Deeds. X11 MORTGAGESUBORDIWATION. A. Subordination, At the time of the conveyance of this restriction, the Premises is subject to a Mortgage, Assignment of Leases and Dents, Security greenic:nt at:d Fixture Filing from the Grantor to Bank of America, N.A. (hereinaf cr the "Mortgagee") recorded on November 21, 2008, as Instrument No. 29835 in the Tissue North District Registry of Deeds at Book 11381, Page 302 (hereinafter "the MoNgage,"). The Mortgagee joins in the exeoution of this Restriction to evidence Mortgagee's agreement that, subject to the following conditions and stipulations, this Restriction shall operate as if this restriction had been recorded in time prior to the v,,00t)ding of the Mortgage- 1. Mortgagee and its assignees shall have prior claim to all ffimran proceeds as a result of any casualty, hazard, or accldcnt occurring to or about the Premises and all proceeds of condemnation proceedings, and shall be entitled to same in preference to Grantee u€ttil the Mortgage is paid off and discharged, not withstanding that the Mortgage is subordinate in priority to the Restriction. [1432?164R241AO28.9993.61 10 Bk 11786 Pq292 #28548 1 if the Mortgagee rel eives an assignment of the leases, reltts and pmfits of the Premises as nee ly or additional security for the loan socumd by the Mongagn,then the Mortgagee shall have a prior c[nim to the lease,rents, and profits of the Premiseg and shall be entitled to receive same in preference to Grantee untiI the Mortgagee's dcbt is paid off or otherwise satisfied, notwithslanding that the ]Mortgage is subordinate in priority to the Restriction. 3. The Mortgagee or purchaser in fbreclosure shall have no obligation, debt, or liability under€lie Restriction uniil the Mortgagee.or purchaser in foreclosure under it obtains ownership of the Promises. In the event of foreclosure or deed in lieu of foreclosme, this Restriction is not extinguished. 4. Nothing contained in this paragraph or in this Restriction shall be construed to give any ]Mortgagee the right to violate the terms of this Re striodon or to extinguish this Restriction by taking title to the Premises by foreclosure or otherwise. XHL MISCELLANEOUS. This iR.Orurnent is not a deed. It does not transfer a fee interest to the Grantee. No Massachusetis deed excise stamps aiie affixed hereto as none are required by M.G.L. c. 64D, eation 1, as amen d. The Grantor shall record this instmment in timely fashion in the Essex Worth district Registry of Deeds. The conduct of archeological activities, including without flmita iou survey, excavation and artifact retrieval, many ocenr only fallowing the submissien of an amheologicail Feld ruvestigation pl2n prepared by the Grantor and approved ill writing by {1�3P7�54BZ4�s018as463.6} ll Bic 11786 Pg293 ##28548 The State Areheoiogist of the Massachusetts Historical Commissign (M.GX. c. 9, Section + MA""DIER OF THIS PAGE INTENTIONALLY l IONALLY LEFT BLANK] (MM6024WI 98483.6# 12 Bk 11786 Pg2 4 ##28548 WITNESS the execution hereof undcr seat this S clay of . 2009. GRANTOR. EDGEWOOD RETIRE,nv ENT COMM-UNITY, ]NC, By; 11S _S 4.ce— BokFzb COMM ONWEALTHCIFMASSA CHUSEIT ss Xove '// 009 }before mc, the undersigned notary public, personally apla�amd CMGs 1 - Whose Marne is signed on the preceding document, and such person acknowledged to Elie (hat he/she signed such document volufflarity, on behalf of Fdgewoed Retirement Community, Inc., for its stated ptupose. The identity of such person was proved to me Through satisfactory evidence of _ idcntifica#ion, which was ❑ photographic identification with signature issued by a federal or State govenimental agi r=Y, ❑ oath or affirmation of a credible witness, or X personal kno iedge of the undersigned. My commission expires; OF Al�soft Am {193�71dk824U'{Q186983-G� 13 Bk 11786 Pg295 #28548 t, ACCEPTANCE OF THE TRV TE ES OF RESERVATIONS e Trnmees of Reservations hereby accepts thus Restriction this � dit of 009. THE TRUSTEES TEES OF RESERVATIONS By: COMMONWEALTH ALT€3 OF MASSA HUSETT ss Spy.6e,�2 009 Before nie, the undersigned notary publio, personally appearW 4 ho.w name is sued on the preceding document, and such person acknowledged to trio that Itelsho signed such documcni voluntarily, on behalf of the Trustees of Reservations , for its stated putpose. The identity bf such person was proved to me through satisfactory evidence of identification, which was ❑ holographic idelitification with sip ature issued by a federal or state govemmental agency, oath or afflimation of a credible wftness, or pmonal knowledge of the undmigned. o Public c my 5 (14337W4844 A0RM34 14 Bk 11786 Pg296 #28548 APPROVAL OF THE TOWN OF NORTH ANDO ER HISTORICAL C iV MISSION e, a majority of the, historical Commissioxi of the Town of North Andover, Massachusetts, hereby certify that at a meeting duly held on this .� T day of 2009,AdAil the North Andover Historical Commission voted to approve the fore ing Histork Condition granted by Edgewood Retiv-,ment Community, Inc. to Tle Trustees of Reservations,pursuant to Massachusats General Laws,Chapter 184, Sections 31 through and including 33, By approving this grant of a Historic Restrictfon, we signif the North Andover Historical Commission's desire to carry out the intent ofthe Gram or and preserve and promote irl perpetuity the historic values of the restricted premises for the benefit of this generation of tc�w�s ie arlch theme descendaa�#s. Date: , 20 NORM ANDOVER IlIS TORICAL COMMISSION Ch fx Ll Wilma COMMONWEALTH OF MA SAt=HUSAI SSW r4 r' On this dad+ of� 2009, before me, the undersigned rota' ublic, personally appeared ;L'b C6.,r.{ _ ..w a - -SAf41iftL WcLUAVIS me- Eric proved to me through satisfaeto evidence of identifkation, which wag © driver's license orArpeFsonally known to me, and ackno hedgcd to ine that they signed it 'voluntarily for ' tated purpose on behalf of said T istoric Commission of the Town of North Andover. t ik o - Nl g is t rA Zvi}+Commission Expires' WC &= =SALO {1432746482AA01889$3,61 15 Bk 11786 Pg 97 #28 48 PROVAI. OR THE TOWN OII` I ANILOV R AS ACHUSETT e, a majority of the Board of Selechtaen of the Town of North diver, Ivl�ssacl�useas, Hereby eertify that at a meeting duly held on this days of� 00 , the Board ofSetectrnen voted to approve as in the public interest the foregui istone Revtrimion granted by Fdgewood Reti meat Community, Inc. to The Tmstees ofl esertjations, Pursuant tv Massachusetts General Laws, Chapter 184, Sections 31 through and including 33. By approving this grant of Historic: Res trktion, we signify the To n's desire to carry alit the intent of the antor ajid preserve and promote in perpotWtY the historic 'values of the restricted promises for the benefit of this generation of townspeople and their descendants, Date: ?ql i rrr: COMMONWEALTH OF MASSACHUSETTS Oil this - day of 00 , before me, die undr-migned notar Public, ersor�ali r appeared "KdI ' /,-, . �!1� _ proved. } me t>;rox�gl# satisfactory evidene of identification, which was D drivar's license or+� personally known to me, and acknowledged to me that they signed it voluntarily for its stated purpose on b�halfof said R.oard of Selectmen of the Tuvm of North Andover. av4n'� *ry.)P? Ali ley omnlission Expit& J0� O'q 16 Bk 117'86 Pg298 #2854:8 EXHIBITA Preservation Pvestriction Premises DeumnJohn Osgood House, 547 Osgood Street, North Andover, Essex County, Maasachusetts The Building, compriiing th,e Deacon John Osgood House is located on that certain parcel of tand s hown as Lot 7 on a Plan of Land dated April, 11, 19 99 prepared by Harr R. Fe ldrn an, Inc, Land Surve,yors, which, Plan is duty recorded at the Essex North District Registry of Deeds as Plan #11 . Said Lot 7 contains 2.2 acres of land as shown on said Plan #11656, and r6frcnceniay be had to, said 911656 for a, more Particular description of Lot I., For title reference,, see deed of Sanmd, R, Rogers dated December 1, 20,04 and rerorded with said deeds at Rook 9223, Page 177. See also deed to Edge wood Retirement Community, tree. dated April 10, 2009 and recorded w Book 1113 7 Page 179'. (Note: The Lot 7 has Wen consolidated with all tht other land holdings Of Edgewoo,d Retirement Community, lnc. by virtue, of that ccrwiu Approval Not Required Plan dated March 27, 2008 and mcorded with said deed as Plan #15919, in accoTding with the decision of file, North Andover P lann ing 'Bogard dated April, 1, 2,0,08 and recorded with said deeds at, 13 ook I I 137, Page 173, 14�,2 IM&MAO I U993.6 J