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HomeMy WebLinkAbout2015-09-01 Recorded Declaration of Trust & Restrictions HOA i CAMTLLE MIRAGLIOTTA DALY ATTORNEY AT LAW 209 MARKET"STREET P.O.BOX 449 LAWRENCE,MASSACHUSETTS 01842 (978)688-2500 FAX: (978)689-1003 71 OCEAN DRIVE SEABROOK,NEW HAMPSHIRE 03874 EMAIL:CAMTLLE@ATTORNEYCAMILLEDALY.COM PLEASE REPLY TO MA OFFICE November 17, 2015 North Andover Planning Board 1600 Osgood Street Suite 3035 North Andover, MA 01845 RE: Recorded Declaration of Trust and Restrictions Wellington Woods Dear Sir or madam: I am enclosing the following document for your files: 1. Recorded Declaration of Wellington Woods. Very truly yours, C.IG vi'v&f.24 Camille Miragliotta Daly cc.: Messina Development Company i i i DECLARATION OF TRUST AND COMMON SCHEME RESTRICTIONS OF THE WELLINGTON WOODS HOMEOWNER ASSOCIATION TRUST This Declaration of Trust and Common Scheme Restrictions of the Wellington Woods Homeowner Association Trust(the"Declaration") is made as of the I(,, day of c F>;_,,„s.19..t 2015, by Messina Development Company, Inc. (the "Declarant"), a Massachusetts corporation, with an address of 277 Washington Street, Groveland, MA 01834. WHEREAS, the Declarant is the owner of certain land in the Town of North Andover, Essex County, Massachusetts, comprised of and including a cul-de-sac roadway shown as Wellington Way (the "ROW"), seven(7) residential building lots shown as Lot 1, Lot 2, Lot 3, Lot 4, Lot 5, Lot 6 and Lot 7 (each, a"Lot", and collectively,the "Lots"), and two (2) additional open space parcels shown as Open Space A ("Parcel A") and Open Space B ("Parcel B") on a plan (the "Plan") entitled"Definitive P.R.D. Subdivision Plan of Wellington Woods in North Andover, MA.,"Record Owners: Gorton Family Trust, c/o Joyce Bradshaw, 624 Boxford Street,North Andover, MA. 01845, Applicant; Messina Development Co., Inc., 277 Washington Street, Groveland, MA., 01834, prepared by CSI Professional Engineers & Land Surveyors, Christiansen& Sergi, Inc., 160 Summer Street, Haverhill, Massachusetts 01830, dated 6/23/15 and recorded with the Essex North Registry of Deeds as Plan No. 17354; and WHEREAS, the Declarant is creating thereon a residential development project to be known as the Wellington Woods Subdivision (the "Subdivision"), including a roadway, utility services, drainage facilities, open space, and other related improvements; and WHEREAS, the development of the Lots and Subdivision were approved by and pursuant to (i) a Notice of Decision for a Definitive Subdivision Plan, dated September 1, 2015, issued by the North Andover Planning Board (the"Subdivision Decision"), which Subdivision Decision is recorded herewith in Book 14410, Page 98, (ii) a Notice of Decision of Special Permit for a Planned Residential Development, dated September 1, 2015, issued by the North Andover Planning Board(the "PRD Special Permit"), which PRD Special Permit is recorded herewith in Book 14410, Page 106; and (iii) Wetlands Order of Conditions, dated September 10, 2015, {00044788;v3} 1 t issued by the North Andover Conservation Commission with respect to MassDEP File#: 242- 1655 (the "Wetland Order"), which Wetland Order is recorded herewith in Book 14410, Page 28 (collectively, the Subdivision Decision, PRD Special Permit and Wetland Order are hereinafter sometimes refereed to as the "Subdivision Approvals"); and WHEREAS, the Declarant desires to develop the land depicted on the Plan and as further described in the Subdivision Decision and PRD Special Permit (the "Project") as an attractive and desirable residential subdivision, in a responsible manner, while preserving to the extent reasonably possible the ecological integrity and natural beauty of the Property and enhancing property values therein; and WHEREAS, the Declarant wishes to hereinafter establish a homeowner's association trust to be known as the "Wellington Woods Homeowner Association Trust" (the "Trust" or"Homeowner Association") in order to properly maintain, repair, replace and administer various land and improvements in the Project as hereinafter described, including without limitation common elements, improvements, land and facilities related to the Lots in the Subdivision and/or which may be conveyed to the Trust or made subject to the Homeowner Association's administration pursuant hereto; and WHEREAS, the Declarant further wishes to establish certain rights in furtherance of the foregoing as more fully described below. NOW, THEREFORE, in consideration of the foregoing, the Declarant hereby establishes the Trust and subjects all of the Lots to the terms and provisions hereof, as follows: 1. DECLARATION OF HOMEOWNER ASSOCIATION TRUST A.Name; Legal Form 1. The Trust hereby created shall be known as the "Wellington Woods Homeowner Association Trust", and under that name, so far as legal, convenient and practicable, shall all business carried out by the Trustees be conducted and all instruments in writing by the Trustees be executed. 2. Messina Development Company, Inc., and its successors and assigns to the extent so designated by it, shall be the Declarant of the Trust, and henceforth shall have and be vested with all of the rights,powers, authority, privileges of the Declarant hereunder. 3. All of the rights and powers conferred upon and exercisable by the Trustees hereunder, and all property, real and personal, tangible and intangible, conveyed to the Trustees hereunder, shall {00044788;v3} 2 ICI vest in the Trustees as joint tenants with right of survivorship as Trustees of this Trust, in trust, to exercise, manage, administer and dispose of the same, and to receive the income thereof for the benefit of the beneficiaries of the Trust. 4. It is hereby expressly declared that a Trust and not a partnership has been created hereby, and that the beneficiaries hereof are not partners or associates or any other relation whatsoever between themselves with respect to the Trust property, and hold no relation to the Trustees other j than as beneficiaries, with only such rights as are conferred upon them as such hereunder. B. Purposes 1. The purposes of this Trust include, inter alia, (a) the maintenance, repair, replacement and administration of the"Common Facilities," as that term is described hereinafter; (b)to levy and collect assessments, but only if and as necessary, from lot owners in order to carry out Trust purposes; and(c) to enforce, under appropriate circumstances the terms and provisions of this Declaration. The Trustees hereunder may, if they deem appropriate or necessary, delegate certain of their powers and duties hereunder to third parties. 2. The"Common Facilities"to be maintained, repaired, replaced and administered by the Trust shall include, without limitation, the following: (i) the ROW and the catch basins, drainage structures and improvements located within the ROW as shown on the Plan (until such time as ROW shall be dedicated to and accepted by the Town of North Andover as a public way), (ii) Parcel A and Parcel B and the drainage structures, infiltration basins, grassed swales, drainage channels and the stormwater management basins (Ponds) and all other drainage facilities and improvements located or to be constructed on Parcel A and Parcel B as shown on the Plan, (iii) the 10' Wide Drainage Easement Area (the "Drainage Easement Area") adjacent to the ROW as shown on the Plan; and (iv) any other real or personal property, or any interest therein, conveyed, assigned or transferred to the Trustees in furtherance of the Trust purposes and for the common benefit of the Subdivision Lots, C. Trustees 1. The original Trustee hereunder shall be the Declarant. Until such time as all of the Lots have all been conveyed to and occupied by individual homeowners, or such earlier time as the Declarant's rights hereunder are surrendered in writing by the Declarant, the Trustee(s) hereunder shall be appointed (and, if appropriate, removed) solely by the Declarant, its successors and assigns. The initial successor Board of Trustees when the Declarant's rights hereunder are surrendered in writing by the Declarant to the Lot owners may be appointed in writing by the Declarant with the written acceptance by three (3) Lot owners designated by the Declarant or, at the Declarants option, the initial successor Board of Trustees may be elected by (00094788;v3) 3 the Lot owners at a meeting noticed and called by the Declarant, with one Trustee appointed or elected for a one (1) year teem, with one Trustee appointed or elected for a two (2) year term, and with one Trustee appointed or elected for a three (3) year term. Thereafter, the Board of Trustees shall be comprised of three (3)members with one Trustee to be elected by the owners of the Lots on an annual basis and for a three (3) year term, such that the terms of the Trustees shall be staggered. Whenever a Trustee shall die, be removed, resign or otherwise leave office during a term, a successor shall be appointed by the remaining Trustees for the remainder of the said Trustee's term such the terms of the Board of Trustees shall remain so staggered. 2. The persons so appointed or elected as Trustees shall be and become such Trustees and shall be vested with the powers of the Trustees and title to the Trust property,jointly and with remaining or surviving Trustees, without the necessity of any active transfer or conveyance. Any such appointment or election shall be evidenced by the recording of a certificate to that effect with the Registry of Deeds. 3. If for any reason any vacancy in the office of Trustee shall occur, a replacement Trustee may be appointed by the remaining Trustee(s) for the remainder of the then current term, or by the Declarant (if the Declarant still holds the authority to appoint Trustees) as provided above. Despite any vacancy in the office of Trustee, the remaining or surviving Trustee or Trustees shall continue to exercise and discharge all of the powers, discretions and duties hereby conferred or imposed upon the Trustees. 4. The following provisions shall be applicable to Trustees hereunder: (a)Any Trustee may resign at any time by instrument in writing, signed and acknowledged in the manner required in Massachusetts for the acknowledgment of deeds, and such resignation shall take effect upon the recording of such instrument with the Registry of Deeds. (b)No Trustee appointed as hereinbefore provided, whether as original Trustee or as successor to or as substitute for another, shall be obliged to give any bond or surety or other security for the performance of any of her or his duties hereunder, provided, however, that the Board may at any time by instrument in writing signed by them and delivered to the Trustee or Trustees affected require that any one or more of the Trustees shall give bond in such amount and with such sureties as shall be specified in such instrument. All expenses incident to any such bond shall be charged as an expense of the Trust hereunder. (c)No Trustee appointed or elected as hereinbefore provided shall under any circumstances or in any event be held liable or accountable out of his personal assets or be deprived of compensation by reason of any action taken, suffered or omitted in good faith or be so liable or accountable for more money or other property than he actually receives, or for allowing one or more of the other {00094788;v3) 4 I Trustees to have possession of the Trust books or property, or be so liable, accountable or deprived by reason of honest errors of judgment or mistakes of fact or law by reason of the existence of any personal or adverse interest or by reason of anything except his own personal and willful malfeasance. (d) The Trustees and each of them shall be entitled to indemnity both out of the Trust property and by the owner(s) of the lands subject to this Declaration, against any liability incurred by them or any of them in the execution hereof, including without limiting the generality of the foregoing, liabilities in contract and in tort and liabilities for damages,penalties and fines. Directors and Officers Insurance may, at the Board's option, be maintained following the appointment of the initial successor Board of Trustees and following the turnover of the Homeowner Association by the Declarant to the Lot owners. (e)In any matters relating to the administration of the Trust hereunder and the exercise of the powers hereby conferred; (a) each of the Trustees shall have one vote; and (b) the Trustees may act by a majority vote at any duly called meeting at which a quorum is present as provided below. The Trustees may also act without a meeting by instrument signed by all of the Trustees. D. Beneficial Interest and Beneficiaries Subject in all cases to the Trustee-appointment provisions set forth above, the beneficial interest hereunder shall consist of one equal beneficial share for each of the legal owners of the seven(7) Lots in the Subdivision which have been made subject to this Declaration. Such beneficial ownership and interest hereunder shall be deemed appurtenant to the title each of the Lots and shall not be separable therefrom and shall run with the land, and regardless of and despite what may or may not otherwise be stated in the deed. By accepting a deed to any of the Lots, the owner shall also be deemed to have accepted therewith the beneficial interest hereunder and shall be deemed to have accepted title subject to the terms and provisions of the this Declaration of Trust and Common Scheme Restrictions, E. Powers, Duties and Functions of Board of Trustees The powers, functions and duties of the Board of Trustees shall include, but shall not be limited to, the following: 1. To maintain, operate, repair, improve, replace as necessary, insure and otherwise to deal with and manage the Common Facilities. {00094788;v3} 5 i 2, To take all actions with respect to governmental entities, or officials, boards or agencies thereof, and with respect to utility companies, which may be necessary or appropriate in relation to any of the Common Facilities, including: (1) the granting, modification or release of utility easements; and (2) the taking of all such action as may be necessary or appropriate to establish and maintain compliance with applicable orders, permits, laws and governmental regulations; and the powers and functions described in this paragraph 2 shall be exercised and performed exclusively by the Trustees hereunder, 3. In connection with the Trust property and with the foregoing, but only consistently with and in furtherance of the foregoing purposes hereof, (i) to retain the Trust property, or any part or parts thereof, in the same form or forms of investment in which received or acquired by them so far and so long as they shall think fit, without liability for any loss resulting therefrom, (ii) to sell, assign, convey, transfer, exchange, and otherwise deal with or dispose of, the Trust property, or any part or pants thereof, free and discharged of any and all Trusts, at public or private sale, to any person or persons, for cash or on credit, and in such manner, on such terms and for such considerations and subject to such restrictions, stipulations, agreements and reservations as they shall deem proper, and to execute and deliver or to accept any deed or instrument in connection with the foregoing, (iii) to purchase or otherwise acquire title to, and to rent, lease or hire from others for terms which may extend beyond the termination of this Trust any property or rights to property, real or personal, and to own,manage,use and hold such property and such rights, (iv) to borrow or in any other manner raise such sum or sums of money or other property as they shall deem advisable in any manner and on any terms, and to evidence the same by notes, bonds, securities or other evidence of indebtedness, which may mature at a time or times, even beyond the possible duration of this Trust, and to execute and deliver any mortgage, pledge, or instrument to secure any such borrowing,provided however, that no Lot shall be mortgaged, pledged or encumbered and no individual Lot owner shall be liable for any such indebtedness unless the Lot owner shall consent thereto in writing and join in and execute such note, bond, security, mortgage, pledge or instrument, (v) to enter into any arrangement for the use or occupation of the Trust property, or any part or parts thereof, including, without thereby limiting the generality of the foregoing, leases, subleases, easements, license, or concessions, upon such terms and conditions and with such stipulations and agreements as they shall deem desirable, even if the same extend beyond the possible duration of this Trust, (vi) to invest and reinvest the Trust property, or any part or parts thereof and from time to time and as often as they shall see fit to change, investments, including power to invest in all types of securities and other property, of whatsoever nature and however denominated, all to such extent as to them shall seem proper, and without liability for loss, even though such property or such investments shall be of a character or in an amount not customarily considered proper for the investment of trust funds or which does or may not produce income, (vii)to obtain and maintain such casualty and liability insurance on and with respect to the Trust property if and as they shall deem necessary or proper, (viii)to incur such liabilities, obligations and expenses, and to pay fiom the principal or the income of the Trust property in their hands all such sums, as they shall deem necessary and proper for the furtherance of the purposes of the Trust, (ix) to determine as to all sums of money (0009478 Sava) 6 and other things of value received by them, whether and to what extent the same shall be deemed to be and shall be accounted for as principal or as income, and as to all charges or expenses, whether and to what extent the same shall be charged against principal or against income, including, without hereby limiting the generality of the foregoing,power to apportion any receipt or expense between principal and income, and power to determine what portion, if any, of the actual income received upon any asset purchased or acquired at a premium or any investment shall be added to principal to prevent a diminution thereof upon the maturity or exhaustion of such asset or investment, (x) to vote in such matmer as they shall think fit any or all shares in any corporation or trust which shall be comprised in the Trust property, and for that purpose to give proxies,to any person or persons or to one or more of their number, to vote, waive any notice or otherwise act in respect of any such shares, (xi) to guarantee performance of the obligations of others in any cases where they shall deem that it is to the advantage of this Trust that they give such guaranty, (xii) to maintain such offices and other places of business as they shall deem necessary or proper to engage in business in Massachusetts or elsewhere, (xiii)to provide and contract for maintenance, repair, cleaning and other services to owners of Lots, or relating to the Common Facilities, and (xiv) to employ, appoint and remove such agents, managers, officers, brokers, employees, servants, assistants and counsel (which counsel may be a firm of which one or more of the Trustees are members) as they shall deem proper, for the purchase, sale or management of the Trust property, or any part or parts thereof, or for conducting the business of the Trust and may define their respective duties and fix and pay their compensation, and the Trustees shall not be answerable for the acts and defaults of any such person; and the Trustees may delegate to any such agent, manager, officer, board, broker, employee, servant, assistant or counsel any or all of their powers (including discretionary powers, except that the power to join in amending, altering, adding to, terminating or changing this Declaration of Trust and the Trust hereby created shall not be delegated) all for such times and purposes as they shall deem proper. F. Assessments and Charges 1. Prior to December 1 of each year, the Trustees shall, if and as necessary, establish a budget and estimate the expenses expected to be incurred during such next calendar year, if any, together with a reasonable provision for the contingencies and reserves, if any, and after taking into account any undistributed or unexpected funds from the prior year, for the performance and fulfillment of all of the duties, functions and activities of the Trustees which, as determined by said Trustees in their reasonable discretion, are for the general benefit of all of the Lot owners and occupants and shall make assessment to each Lot owner for their proportionate share of the estimated expense as herein below provided. 2, Each such common budget relating to general Common Facilities to the benefit of all Lots, shall be divided into the same number of shares as there are Lots subject to this Trust, one for each such lot, ie, one-seventh (1/7"') per Lot. {00094788;v3} 7 1 i 3. Statements rendered by the Trustees hereunder to owners of Lots pursuant to provisions of the foregoing shall be due and payable within thirty days after the same are rendered, provided that if the Trustees or responsible Lot owners as hereinafter provided so elect, the same may be paid in monthly or other installments specified by the Trustees. In the event that the Trustees shall determine during any fiscal year that the common budget so established is less that the expenses actually incurred (including reserves), or in the reasonable opinion of the Trustees likely to be incurred, the Board of Trustees or responsible Lot owners as the case may be shall make a supplemental assessment or assessments and render statement therefor in the manner aforesaid, and such statements shall be payable and take effect as aforesaid. G. Rules, Regulations, Restrictions and Requirements ! The Trustees may, subject to the rights of others (if any) lawfully entitled to use the same in common with the Lot owners, at any time and from time to time adopt, amend and rescind administrative rules and regulations governing the details of the operation and use of the areas and facilities with respect to which the Trustees have jurisdiction hereunder. H. Meetings; Notices 1. The Trustees shall meet at least annually, and at such meeting may elect a Chairman, Treasurer and Secretary and further meetings may be called by the Chairman and in such other manner as the Trustees may establish, provided,however, that written notice of each meeting stating the place, day and hour thereof shall be given at least seven days before such meeting to each member of the Trustees. Trustees holding at least one-half of the voting power hereunder shall constitute a quorum at all meetings, and such meetings shall be conducted in accordance with such rules as the Trustees may adopt. Trustees shall hold office until their successors are duly elected or appointed. 2. The Lot owners shall meet annually or at such other frequency as determined by the Trustees. At each annual meeting a Board of Trustees comprised of three members shall be elected, with each Lot owner being entitled to one (1) vote for each Lot owned. Special meetings may also be called by the Board of Trustees when they deem prudent or necessary, and such special meeting(s) shall be so called by the Board of Trustees upon the written request of owners of 33% or more of the Lots. Attendance of owners (in person or by proxy)representing more than 50% of the Lots shall constitute a quorum at any annual or special meeting of Lot owners. 3. Every notice to any Lot owner or Trustee required under the provisions hereof, or which may be deemed by the Trustees necessary or desirable in connection with the execution of Trust created hereby or which may be ordered in any judicial proceeding, shall be deemed sufficient and binding if a written or printed copy of such notice shall be given by one or more of the (00094788;v3) 8 . j I Trustees by mailing it, postage prepaid, and addressed to the Lot owner or Trustee at the address as it appears upon the records of the Trustees, at least seven days prior to the date fixed for the happening of the matter, thing or event of which such notice is given. 1, Miscellaneous Provisions 1. Books, accounts and records of the Trustees shall be open to inspection to any one or more of i the Trustees or Lot owners. 2. Checks, notes, drafts and other instruments for the payment of money drawn or endorsed in the names of the Trustees or of the Trust may be signed by any Trustees, or by any person or persons, to whom such power may at any time or from time to time be delegated by not less than a majority of the Trustees. 3, The fiscal year of the Trust shall be the year ending with the last day of December or such other date as may from time to time be determined by the Trustees. 4, The titles and headings of different parts hereof are inserted only for the convenience of reference and are not to be taken to be any part hereof or to control or affect the meaning, construction, interpretation or effect hereof. All provisions herein contained shall take effect and be construed according to the laws of the Commonwealth of Massachusetts. J. Rights and Obligations of Third Parties with the Trustees 1. No purchaser, mortgagee, lender or other person dealing with the Trustees as they then appear of record in said Registry of Deeds shall be bound to ascertain or inquire further as to the persons who are then Trustees hereunder or be affected with any notice, implied, or actual, otherwise than by a certificate thereof, and such record or certificate shall be conclusive evidence of the personnel of said Trustees and of any changes therein. i 2. No recourse shall at any time be had under or upon any note, bond, contract order, instrument, certificate undertaking, obligation, covenant, or agreement, whether oral or written made, issued, or executed by the Trustees or by any agent or employee of the Trustees, or by reason of anything done or omitted to be done by or on behalf of them or any of them, against the Trustees individually, or against any such agent or employee or against any beneficiary either directly or indirectly, by legal or equitable proceeding, or by virtue of any suit or otherwise, and all persons extending credit to, contracting with or having any claim against the Trustees, shall look only to the Trust property for payment under such contract or claim, or for the payment of any debt, damage,judgment or decree, or of any money that may otherwise become due or payable to (00094788,v3) 9 them from the Trustees, so that neither the Trustees nor the beneficiaries,present or future, shall be personally liable therefor. 3. Every note, bond, contract, order, instrument, certificate, undertaking, obligation, covenant or agreement, whether written or oral, made issued or executed by the Trustees, or by any agent or employee of the Trustees, shall be deemed to have been entered into subject to the terms, conditions, provisions and restrictions hereof, whether or not express reference shall have been made to this instrument. 4. This Declaration of Trust and any amendments hereto or any certificate or paper signed by said Trustees or any of them which it may be deemed desirable to record shall be recorded with the Registry of Deeds and such record shall be deemed conclusive evidence of the contents and effectiveness thereof according to the tenor thereof; and all persons dealing in any manner whatsoever with the Trustees, the Trust property of any alternation or amendment of this Declaration of Trust, or change of Trust or Trustees, when the same shall be recorded with said Registry. Any certificate signed by the Trustees in office at the time, setting for as facts any matters affecting the Trust, including statements as to who are the beneficiaries, as to what action has been taken by the beneficiaries and as to matters determining the authority of the Trustees to do any act, when duly acknowledged and recorded with said Registry shall be conclusive evidence as to the existence of such alleged facts in favor of all third persons, including the Trustees, acting in reliance thereon. Any certificate executed by any Trustee hereunder, or by a majority of the Trustees hereunder setting forth the existence of any facts, the existence of which is necessary to authorize the execution of any instrument or the taking of any action by such Trustees or majority, as the case may be, shall, as to all persons acting in good faith in reliance thereon, be conclusive evidence of the truth of the statements made in such certificate and of the existence of the facts therein set forth. II. COMMON SCHEME DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS A. Easements The Declarant hereby establishes, declares and grants the following easements, subject to the terms and provisions hereof; 1. To the Board of Trustees; The right and easement to enter upon, maintain, repair, replace and administer, as necessary, any of the Common Facilities, whether located upon land owned by the Trust or upon land owned by an individual Lot owner; and the right and easement to enter upon any Lot, upon reasonable advance notice to the Lot owner, in order to inspect same and/or carry out any act or function thereon as deemed prudent or necessary by the Trustees in furtherance of {00094788;v3} 10 the purposes, terms and/or provisions of this Declaration. 2. To the Lot Owners: (a) The right and easement to use the ROW (ie Wellington Way as shown on the Plan) for ingress, egress, utility services and any other purposes for which streets and ways are commonly used in the Town of North Andover, with the fee ownership of such roadway to be retained by the Declarant, until such time as the said roadway shall be dedicated to and accepted by the Town of North Andover as a public way; and (b)the mutual right and easement for reasonable surface water drainage through stormwater drainage structures that are included within the ROW, in accordance with the terms and provisions of this Declaration, until such stormwater drainage structures and catch basins within the ROW may be accepted by the Town or North Andover; and (c) the perpetual right and casement to maintain the drainage systems located on Parcel A, Parcel B and within the Drainage Easement Area. 3. The easement rights granted above are granted upon the express conditions that the parties availing themselves of such easements shall; (i) do so in strict conformity with all laws, codes, orders and regulations; and (ii) fully and promptly restore any easement areas in question upon the completion of any work thereon. 4. As the Lots in the Subdivision are graded and landscaped the Declarant shall retain an easement to perform re-grading as it determines to be necessary to create transitions between Lots and to allow for water flow and run off between the Lots, including but not limited to swales and underground drainage, if necessary. Furthermore, the Declarant reserves the right to re-landscape any areas that may have been previously landscaped,prior to completion of the Subdivision project, in order to achieve proper drainage and water run off. This provision shall survive the transfer of title from the Declarant to each Lot owner and continue in effect until completion of the Subdivision project by the Declarant. It shall be the responsibility of the Declarant to re-grade, re-loam, and reseed any areas disturbed pursuant to the foregoing provision in the event that the Declarant shall re-landscape any previously landscaped areas. The Trustees are hereby granted a permanent grading easement and the right to maintain the grassed drainage swales on each Lot in the Subdivision project upon such grades as the same shall be finally constructed by the Declarant. Notwithstanding the right of the Trustees to maintain such grades, the individual Lot owners shall be primarily responsible to maintain such areas and grades at their sole cost and expense. Each of the owners of the Lots agrees to maintain such grades on the Lots as shall be originally constructed and shall not in the future change, disturb or alter any grades, including without limitation in any manner which would affect or alter surface water run-off or drainage. {00094788;v3} 11 i i B. Covenants i The Declarant shall complete construction on all Lots in accordance with the terms and provisions of the Subdivision Approvals and thereafter, each Lot owner, by acceptance and recording of a deed to any lot in the Project, shall be deemed to have agreed to comply with the following covenants: 1, Each Lot owner, as well as any party claiming through them, shall comply with any and all terms and provisions of this Declaration, including without limitation the covenant hereby established to promptly pay any and all assessments levied by the Trustees pursuant to the terms hereof. 2. The Trustees and Homeowner Association shall maintain all of the Common Facilities in the Subdivision, in perpetuity, in accordance with the terms and provisions of the Subdivision Approvals and as contemplated above by this Declaration. Without limitation to the forgoing, the Trustees and Homeowner Association shall maintain Parcel A, Parcel B, the Drainage Easement Area and the ROW (until such time as the ROW shall be accepted as a public roadway by the Town of North Andover), and all drainage structures, infiltration basins, grassed swales, drainage channels and the stormwater basins (ponds) therein, pursuant to and in accordance with(i) Special Condition 16 of the Subdivision Decision, (ii) Condition 16 of the PRD Special Permit, and (iii)the stormwater best management practices Operations and Maintenance Plan as referenced in condition 55 of the Wetland Order and as attached as an Exhibit to the Wetland Order. 3. Each Lot owner shall maintain all drainage systems which are located solely on such Lot owner's respective Lot in accordance with the terms and provisions of the Subdivision Approvals, including without limitation carrying out the following ongoing obligations; (a) All roof infiltration systems that are located on an individual Lot are to be maintained in perpetuity by the respective owner of such Lot, at each such Lot owner's sole cost and expense, pursuant to and in accordance with special condition 18 of the Subdivision Decision. (b) The infiltration basins (ponds) located on each of Lot 3, Lot 4 and Lot 5 shall be maintained in perpetuity by the respective owner of each such Lot, at each such Lot owner's sole cost and expense, pursuant to and in accordance with special condition 17 of the Subdivision Decision. (c)All drainage structures, including bio-retention areas, rain gardens, infiltration basins, grassed swales, drainage channels and other elements of the drainage systems that are located solely on an individual Lot shall be maintained in perpetuity by the respective owner of such Lot, at each (00094788;0) 12 i such Lot owner's sole cost and expense, pursuant to and in accordance with conditions 55 and 60 of the Wetland Order, to the extent applicable to any such individual Lot. (d)No underground storage of fuel oils shall be allowed on any Lot within one-hundred (100) feet of any wetland resource area,pursuant to and in accordance with condition 74 of the Wetland Order. (e) Fertilizers used for landscaping and lawn care shall be slow release, low-nitrogen (<5%), and phosphorous free and shall not be used within fifty (50) feet of a resource area; and pesticides and herbicides shall not be used within one-hundred (100) feet of a wetland resource area, pursuant to and in accordance with condition 75 of the Wetland Order. In the event that any lot owner does not comply with the foregoing covenants, as set forth in paragraph 3 of this Section B, and such failure or refusal is not cured within fifteen(15) days after written notice of same, the Trustees may carry out the necessary measure or function, and the costs thereof shall be assessed to the non-compliant Lot owner. C. Restrictions 1. None of the Lots subject to this Declaration shall be used for non-residential purposes; provided, however, that home office use may be allowed, to the extent allowed under any applicable provision of the Town of North Andover Zoning By-Law. 2. Only one single-family dwelling, together with usual and customary accessory buildings, garages or sheds (whether attached or detached and so long as the same shall be sited, permitted and installed in compliance with all applicable bylaws, rules and regulations), may be constructed on any Lot in the Project. 3. Any exterior sign on any Lot in the Project shall be no more than six square feet, showing the name of the owner or occupant and the name or number of the lot. No commercial or advertising signs of any kind shall be erected,placed,permitted or maintained on any Lot or improvement except for a single sign of not more than four square feet advertising a lot or house for sale. This prohibition shall apply to any sign advertising the builder or remodeler of a home. All signs shall be compatible with the environment, and under no circumstances shall projecting signs, neon or brightly-lit or self-lit signs be permitted on any lot. Notwithstanding the forgoing provisions of this paragraph, the Declarant reserves the right to place signs on the property advertising Lots or home sales. The number and size of such signs installed by the Declarant shall be in the Declarant's sole discretion. Specifically a "subdivision" sign or signs on the premises and/or a (00094788;v3) 13 sign advertising the Declarant's Lender may be installed and shall remain until removed by the Dcclarant or its agents. 4. No mobile home, trailer, recreational vehicle or similar temporary or moveable vehicle or structure shall be used for residential purposes on any Lot. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other building or other outbuilding shall be used on any Lot at any time as a residence either temporarily or permanently. 5. No noxious, dangerous, unduly noisy, or offensive use or activity shall be carried out on any Lot, nor shall any unlawful activity be carried out thereon. Each Lot shall be maintained to project a neat appearance. 6.No clotheslines shall be allowed and no clothes shall be hung or placed outside, so as to be visible from any other lot within the Project; clotheslines shall only be allowed in the rear yard of a home and if adequately screened so as not to be visible from the front or side of the home or from another Lot(where screening from visibility is required under this Declaration the Trustees shall have authority to make a determination as to whether screening is reasonable, but for purposes hereof a 6 foot wooden fence, by way of example and not to the exclusion of other methods of screening, shall be deemed to provide adequate screening.)No trash, waste, refuse, tools, garden equipment, children's play things, or other property shall be allowed to accumulate outdoors, so as to give an unsightly appearance. No unregistered and/or inoperable motor vehicle of any type and no boat, camper, recreational vehicle, trailer, or other similar vehicles shall be parked or maintained on any Lot unless the same shall be in the rear yard and shall be screened so as not to be visible from the front or side of the home or from another Lot.No Lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste shall not be kept except in sanitary containers and said containers should be kept out of sight until collection. All equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition. 7. No animals, livestock, or poultry of any kind shall be raised, bred, or kept on any Lot, except that a reasonable number of household pets shall be allowed provided that they are not kept, bred, or maintained for any commercial purposes. No pet shall create unreasonable noise or create a nuisance or annoyance to neighbors. The owner of each Lot shall be responsible for cleaning up after and removing all animal waste, promptly, and whether such waste shall be on the owner's Lot or on any common area or other property. All animals shall be safely and properly restrained, at all times, in accordance with any applicable leash laws. The Lot owner shall be responsible for compliance hereunder whether the pet or animal shall belong to the Lot owner or to their invitee or guest. {00094788,v3) 14 ' I 8. All fences shall be constructed with finished side facing away from the dwelling, No chain link fencing will be allowed if within public view. However, under no circumstances shall silver or galvanized color chain link fence, posts or parts be approved. No fence shall be constructed between the front plane of any house and the street unless approved by the Trustees. A Lot owner wishing to install any fence shall submit a drawing of such fencing and a sample of materials to be used to the Declarant or Trustees prior to installation. No fence shall be installed without obtaining the Declarant or Trustee's approval. i 9. All satellite dishes and installation locations shall require approval by the Declarant or Trustees prior to installation. No satellite dishes in excess of 24" in diameter will be allowed. 10. Owners of vacant Lots, Lots with houses under construction, and Lots with finished homes shall at all times keep and maintain their property in an orderly manner, not permit lawns to become overgrown, and prevent any accumulation of rubbish or debris on the premises. Front and side yards shall be free of unattended lawn chairs, swing sets, playground/fort type structures, swimming pools and the like. Swing sets, playground/fort type structures and swimming pools and the like must be located directly behind the house or totally out of public view and are to be approved by the Declarant or Trustees. 11. The following are prohibited: (a) lawn ornaments (excepting for seasonal decorations which shall be permitted on a temporary basis, ie, up to 30 days, in and for the applicable season); (b) above ground swimming pools; (c) exterior antennas (excepting for satellite dishes approved and installed in accordance with Section 9 above); (d) boats, all terrain vehicles, off road vehicles, snowmobiles, water craft, trailers, motor homes, campers, R.V, vehicles, school buses and all other commercial vehicles (unless parked in the garage or otherwise stored in a rear yard and adequately screened in a manner conforming to these covenants so as not to be visible from the front or side of the home or from another Lot); (e) unregistered or uninspected automobiles or automobiles being repaired, refinished or restored for a period of more than seven (7) days shall be stored in a garage or other enclosed structure; and (f) additions or outbuildings or appurtenances, including without limitation temporary structures or garages, unless prior written approval has been obtained from the Trustees. For purposes hereof a commercial vehicle shall be deemed to be a vehicle with a gross vehicle weight rating in excess of 8,000 pounds. The maintenance of motor vehicles is discouraged. Any waste products, used motor oil, antifreeze, grease or other lubricants may not be disposed of on or upon any part or portion of the Project, the open space or the drainage system. Further, notwithstanding that all terrain vehicles, off road vehicles, snowmobiles and other similar recreational vehicles are permitted to be stored on Lots in compliance with the adequate screening requirements, the Lot owner expressly acknowledges and agrees that such recreational vehicles shall not be used on the Common Facilities or on any common areas within the Project, and that the use of such vehicles within the Project or on any Conservation Restriction areas within or adjacent to the Project are expressly prohibited, {00094788,v3) 15 3 I 12. Notwithstanding the foregoing, in the event that strict conformity with the provisions of these restrictions would cause undue hardship or injustice to an individual homeowner, the Board of Trustees shall have the authority to approve (or disapprove, in their sole discretion) a request by that homeowner for a Variance from the terms hereof, provided that other Lot owners are not materially and adversely affected thereby, and provided further that any such noncompliance by the homeowner in question does not violate the terms or provisions of any law, ordinance, by- law, permit or approval relating to the lot or the Project. D. Miscellaneous Provisions 1, Maintenance of Common Facilities and Drainage Areas by the Board of Trustees. The Trust, acting by and through its Board of Trustees, shall maintain, repair, replace and administer the Common Facilities. In the case of any Common Facilities which are to be granted to the Town of North Andover, including the ROW and any drainage facilities located within the ROW, such facilities shall be maintained until such time as they may be transferred to and accepted by the Town of North Andover, In the case of all other Common Facilities and drainage easement areas, facilities and structures which are not to be transferred to the Town of North Andover, said maintenance obligations of the Homeowner Association shall be ongoing and perpetual, 2, Reasonable Regulations; Fines, The Board of Trustees is hereby given the power and authority to promulgate reasonable rules, regulations and restrictions, as necessary, in order to more fully carry out their functions and duties and to fulfill the overall purposes of this Declaration. Moreover, in the event that the terms and provisions of this Declaration or any such reasonable rules, regulations and restrictions are violated, the Trustees may levy a fine or series of fines against the Lot owner, which fines shall be the personal obligation of the Lot owner and may be assessed as a lien against the Lot, until paid. Such lien may be enforced by and at the election of the Trustees in the same manner as a fine levied by a condominium association pursuant to M.G.L. Chapter 183A. 3, Enforcement. Enforcement of the terms and provisions of this Declaration and any further rules, regulations and/or restrictions promulgated pursuant hereto may be at law or in equity, against any person or party violating or attempting to violate same, either to restrain the violation or to recover fines and/or damages. Such enforcement actions may be prosecuted by the Trustees or by any other party owning a Lot subject to this Declaration. The failure of any party to enforce any such easement, covenant, restriction herein contained or adopted pursuant hereto shall in no event be deemed a waiver of the right to do so in any instance thereafter. In the event of a successful action to enforce the terms and provisions hereof or any rule, regulation or restriction adopted pursuant hereto, the party successfully seeking enforcement shall be entitled to recover (00094788;v3) 16 his, her or its reasonable attorney's fees and costs, 4. Severability. The invalidation of any provision of this Declaration by judgment or a court order shall in no way affect any other provision of this Declaration, which shall thereafter remain in full force and effect. 5, Amendment. (a)The Declarant expressly reserves the right to record Special Amendments to this Declaration in order to correct typographical errors, mistakes or omissions which do not materially and adversely affect any rights or obligations established hereby or to make any changes or modifications hereto which are consistent with and were expressly contemplated by the Subdivision Approvals. Upon the sale of all of the Lots in the Subdivision by the Declarant to third-party homeowners, this right to record Special Amendments shall be deemed transferred to the Board of Trustees. (b) In addition to such Special Amendments described above, this Declaration may also be amended by written instrument executed by the Trustees, provided that the Trustees have first obtained the written consent of 75 percent of the then record owners of the Lots subject to this Declaration, which such Amendment shall be thereafter recorded at the Registry of Deeds; provided, however,that as long as the Declarant owns any of the Lots in the Project,no proposed Amendment which adversely affects the rights of the Declarant shall be of any force or effect unless consented to in writing by the Declarant. III. ADDITIONAL COVENANTS AND RESTRICTIONS FOR BENEFIT OF TOWN 1. The Declarant agrees to file this Declaration with the Essex North Registry of Deeds, and to forward recorded copies of this Declaration to the Planning Board within thirty (30) days of recording. 2. This Declaration shall be binding upon and inure to the benefit of the owner of each of the Lots, and any successors in interest to the Lots, it being the express intention and understanding and agreement that this Declaration shall constitute a covenant running with the land. Each and all of the covenants and provisions of the Declaration shall be incorporated by reference into and shall be referenced in the future deeds for such Lots. 3. This Declaration shall also be and is for the benefit of the Town, its successors and assigns. (00094788;v3) 17 4. This Declaration shall run with the land 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 comprising any part of the Subdivision 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, mortgagees, assigns, agents, contractors, subcontractors and employees of the foregoing. This Declaration is hereby intended and declared to be a covenant in perpetuity held by a governmental body as defined in and with the benefit of M.G.L. c. 184, § 32 and no re- recordation of this Declaration under G.L. c. 184, §§23-30 or any other law shall ever be necessary in order to maintain the full legal effect and authority thereof and Declarant and its successors and assigns, 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 and shall not, in any enforcement action, raise the invalidity of any provision of this Declaration. 5. This Declaration shall not be modified, amended, changed, or terminated or waived without the consent of the Declarant (or Declarant's successor) and the consent of the Town, 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 the Declarant 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, including, but not limited to any notice or instrument which may at any time be necessary to maintain this Declaration in effect in perpetuity. Without limiting the forgoing, the Declarant and its successors and assigns agree to execute any such notices and instruments upon request of the Town. d. The Town shall have the authority and right to enforce this Declaration as a benefited party, The Town shall have the right to enter the restricted land in a reasonable manner and at reasonable times, for the purposes of(i) inspecting the restricted land to determine compliance with this Declaration; (ii) enforcing this Declaration; and (iii) taking any other action which may be necessary or appropriate. 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 from so doing and to cause any such violation to be remedied, after providing written notice to such party or parties and the Town shall recover its attorney's fees and costs in any action of enforcement. 7. The Declarant and each of the owners of the Lots on the Plan (and their heirs, successors and assigns in interest) shall hold harmless, defend and indemnify the Town of North Andover and its employees and agents from any responsibility, liability and claim arising out of or related to the obligations of the Declarant, the Owners of the Lots and their successors and assigns {00044788;v3} 18 - III pursuant to this Declaration. The Town of North Andover shall at no time have any responsibility or liability for the maintenance and operation of the above referenced systems, structures, swales, catch basins or facilities. The Town of North Andover shall not have any responsibility or liability for the way shown as Wellington Way on said plan until such time as the Town accepts Wellington Way as a public way, In the event that the Declarant, the Owners of the Lots and their successors and assigns fail to fulfill their obligations created by this Declaration and the Town of North Andover is called upon to perform any work in order to ensure their proper operations and functioning, the Declarant and each of the owners of the Lots on the Plan (and their heirs, successors and assigns) shall reimburse the Town for all such expenditures and the Town shall have the right to use all such legal procedures allowed it under law to secure such reimbursement. The Declarant, the owners of the Lots, and their heirs, successors, and assigns hereby consent to the Town of North Andover having the right after thirty days written notice to place a lien upon their property for all such reimbursement expenditures unless within such thirty day period the parties have either reached an agreement regarding such reimbursement or the Declarant or Lot owners have obtained injunctive relief from a court of competent jurisdiction enjoining the placement of such lien. There is hereby granted to the Inhabitants of the Town of North Andover, an easement over the drainage easement areas and the way as shown as Wellington Way on said plan to perform such work as described herein if necessary; however, all financial responsibility for any such repairs and maintenance shall be solely that of the Declarant, the Lot owners, and their successors and assigns. S. If any court or other tribunal of competent jurisdiction determines that any provision of this Declaration is invalid or unenforceable, such provision shall 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, 9. Any election by the Town as to the manner and timing of its right to enforce this Declaration or otherwise exercise its rights hereunder shall not be deemed or construed to be a waiver of such rights. 10. Declarant and Declarant's successors and assigns, including all subsequent owners of the Subdivision property or portions thereof, shall inform a potential purchaser in writing of this Declaration and shall incorporate this Declaration, in full or by reference, into all deeds, easements, mortgages, leases, licenses, occupancy agreements or any other instrument of transfer by which an interest in and/or a right to use the restricted land or any portion thereof is conveyed.. Any such deed purporting to convey any portion of the Subdivision property or interest therein without including this restriction in full or by reference shall be deemed and (00094788;v3) 19 I taken to include said restriction in full even though said restriction is not expressly described or referenced therein. i 11. No amendment or release of this Declaration shall be effective unless it has been approved in writing by the Town acting by its Planning Board (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. 12. Nothing herein shall be deemed to prohibit a conveyance subject to this Declaration of all or any interest in the Property, 13. The undersigned represents and warrants that it has the right,power, and authority to enter into and perform its obligations under this Declaration and that it is duly established or organized, validly existing and authorized to do business under the laws of the Commonwealth of Massachusetts, The undersigned agrees to maintain such right, power authority and authorization. Executed as an instrument under seal this day of u ,,,r;�., �-, ., , 2015. Declarant: Messina Development Company, Inc. j : Qf't e BY _ _ a T Name: Marylee Messina Title: President and Treasurer ! (00094788,A) 20 a COMMONWEALTH OF MASSACHUSETTS Essex, ss. On this i_' day of � �, �, � �._, , 2015, before me, the undersigned notary public, personally appeared Marylee Messina, as President and Treasurer of Messina Development Company, Inc,, who proved to me through satisfactory evidence of identification, which was a driver's license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it voluntarily for its stated purpose, acting in such capacity. Notary Public My Commission Expires: L\ CAMILLE M111A"11-10TTA DALY * Notary Pobfic COFttr10NVJCALTIi c>i 1h1SS.�ChIUSLT'f5 My Cornmission Expires February 12,2021 1 3 I (00094788;v3) 21