HomeMy WebLinkAboutDeclaration of Restriction 02-17-2012 Bk M 2822 P9 143 04306
02-17-2012 a 03 9 18P
DECLARATION OF RESTRICTION
THIS DECLAMATION OF RESTRICTION(hereinafter the"Declaration")is made this
7th 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 Turnpike Street,North Andover,Massachusetts,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"=Xy,
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 Essex North
District Registry of Deeds as Plan being the same premises contained in a deed dated
January 2,1998,recorded with said Registry in Book 4932, Page 127(collectively,the
"Property„);and
WHEREAS, a Continuing Care Retirement Center and Site Plan Review Special Permit,
dated April 6,2010(the"Special Permit Decision"),as affected by a Notice of Dcision
(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 Ch�ge Decision are recorded with
4 said Deeds in Book? ,Fageci and in Book Page 1�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 Town of North Andover
CA- which provides that the Property shall not be transferred to a.nonprofit entity except in the
N 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 entitys not for profit status;
NOW,THEREFORE, Declarant hereby voluntarily declares and imposes in perpetuity
upon the Property the following covenants, conditions and restrictions for the benefit of
Declarant, its successors and assigns, and the Town of North Andover, by and through its
Planning Board (hereinafter the "Town"), and said Property 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.C.L.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 with said Deeds that it shall not apply
for or claim an exemption from local real property taxes as a nonprofit entity pursuant to
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M.G.L.c. 59,Section 3,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 contrary,Declarant
reserves to itself and its successors and assigns the right to undertake all other activities which
are not inconsistent with the prohibited acts and uses described in Paragraph I above,including
but not limited to,the right to divide,subdivide,resubdivide,sell and convey aI1 or a portion of
the Property that is burdened by the Declaration,
3. Term-Binding Effect In PeEpetufty. This 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.c.184,as.23-30 or any other law
shall ever be necessary in order to maintain the full legal effect and authority hereof and
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 law or equity of
any kind whatsoever attempting to contest the validity of any provision of this Declaration of
Restriction and shall not,in any enforcement action,raise the invalidity of any provision of this
Declaration of Restriction. Notwithstanding the forgoing, the rights and obligations contained
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 agreements
herein.
4. Mgdification or Termination of Restrictions. This Agreement shall not be modified,
amended,changed,or terminated or waived without the consent of the Declarant(or
Declarant's successor) as well as the consent of the Town 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 Town as its attorney-in-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 enjoin them
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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
conveyed to a successor owner where a violation has occurred or will occur resulting in an
enforcement action being taken,then the Town may only seek such enforcement against the
owner of said lot(s)on which the violation has occurred,and therefore,it being understood 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.
b. Severability. If any court or other tribunal of competent jurisdiction determines that
any provision of this Declaration:of Restriction is invalid or unenforceable,such provision shah
be deemed to have been modified automatically to conform to the requirements for validity and
enforceability as determined by such court or tribunal, In the event the provision invalidated 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 remaining
provisions of this instrument shall remain in full force and effect.
7, Non-Waiver. Any election by the Town as to the manner and tin-Ling of its right 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.
$, Incorporation Into Deeds. Declarant and Declarant's successors and assigns, including
all subsequent owners of the Property or portions thereof,shall incorporate this Declaration of
Restriction,in full or by reference,into all deeds.Any such deed purporting to convey any
portion of the Property without including this Declaration of Restriction in full or by reference
shall be deemed and taken to include said Declaration of Restriction in full even though said
Declaration of Restriction is not expressly described or referenced therein.
9, ReeordatiopAegistration. Declarant shall record and/or register this Declaration 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"Town
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,
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IN WITNESS WHEREOF, the Declarant has caused these presents to be signed,
acknowledged and delivered this 7th day of February,2012.
BRIGHTVIEW NORTH ANDOVER,LLC
By:
a K.Duker,President,duly authorized.
STATE OF MARYLAND,4GFP#COUNTY OF l�&A 19RE,TO WIT;
I HEREBY CERTIFY that on this l day of OIL 2012,before rne, the
subscriber,a Notary Public of the State of Maryland,in and for the ity/County aforesaid,
personally appeared Marilynn K.Duker,President of Brightview North Andover,LLC,a
Maryland limited liability company,and as such President she acknowledged the
foregoing instrument to be the act and deed of said limited liability company.
WITNESS my hand and Notarial Seal. )
qq Notary Public
My Commission Expires ° �, �
Q 'O tic �a
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APPROVED AS TO NORM: At a regularly scheduled meeting held on Tuesday,February 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 suing in the space provided below.
NORTH ANDOVER PLANNING BOARD
By:
Joh L. Simons, its Chairman
Dated: February 7, 2012
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