HomeMy WebLinkAbout2021-03-16 Application Common Driveway Special Permit I
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Town of North Andover
Planning Deparwent
Community&Economic Development Division
120 Main Street
North Andover,Massachusetts 01645
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1.Petitioner;Crosspoint Associates
Petitioners Address:188 Needham_Street,Suite 265, Newton MA,02464. _.—.
Telephone number:(508)655-0505
2,Owners of Elie Land:Lot 39—Y.R.Unified Parinershi
Address:419 Andover Street,North Andover,Massachusetts,01845
Number of years of ownership:23 T
Owners of the Land;Lot 32—Thomosons Restaurant,Inc.
Address:PO Box 155,North Andover,Massachusetts 01845
Number of years of ownership:72
3.Year lot was created:1971 (Lot 391 and 1939(Lot 32)
4,Description of Proposed Project;
Petitioner seeks a special permit to allow use of a shared driveway,For more detail Please see attached addendum.
5.Description of Promises;Lot 32 is currently improved with the Bertucd's Restaurant,and Lot 39,Is current improved vrilh
the building housing Ethan Allen and other retail stores.The Premises is at the corner of Routes 114 and 125.Petitioner has
ro osed a redeveto ment of the two lots with a common driveway.
6.Address of Property Being Affected.,419&435 Andover Street
Zoning District;General Business
Assessors Map:24 Lot#r 32&39
Registry of Deeds:Book#:706 Page#:553 (Lot 32)
Boole#:5288 Page#:221 (Lot 39)
7,Existing Lot:
Lot Area(Sq,Ft); 35,238Lot 32) Building Height:21.4
Street Frontage:542.5 Side Setbacks:6.6
Front Setback:37.7 Rear Setback:NIA
Floor Area Ratio; Lot Coverage:17.1%
Lot Area(Sq.Ft): 81,424,(Lot 391 Building Height,53.3
Street Frontage:207.6 Side Setbacks:29.3
Front Setback:39.0 Rear Setback;NIA
Pane l of 3
120 Maln Street,Planning Dept.,North Andover,Massachusetts 01845
Phone 979.608.9535 Fax 978.608.9542 Web%Yvrwmnorlhandoverma.gov
Floor Area Ratio: Lot Coverage:29.6% ^�
8.Proposed Lot(if applicable):
Lot Area(Sq,Ft): 3qJ28(Lot 32] Ba1€ding Height;21,4
Street Frontage;542.5 Side Setbacks:6.6
Front Setback:37.7 Rear Setback:N!A
Floor Area patio: Lot Coverage; 17.1%�
Lot Area(Sq.Ft): a1424 Lnt39 Building Height:<45
Street frontage;207.6 Slde Setbacks;X5
Front Setback:34.1 Real'Setback:NIA
Floor Area Ratio;
Lot Coverage:13.3°l0
9.Required Lot(as required by Zoning Bylaw):
Lot Area(Sq.Ft):25,000 Building height:45 feet
Street Frontage:125/250 feet Side Setbacks:25/40 feet
Front Setback:25 fe,__, et bear Setback:35/50 feel
Floor Area Ratio: Lot Coverage: /o
10.Existing tuilding(if applicable):
Ground Floor(Sq.Ft,):24 08,. 8/6 030 V of Floors:I
Total Sq,Ft.:30,118 „ Height:53.3
Use; etail restaurant Type of Gnnstructlon;
11.proposed Building,
Ground Floor(Sq.Ft.):77 500133 35216.030 V of Floors:1
Total Sq,Ft,16 8$� 2 Height.45 feet
Use:Medical office restaurant coffee sho bank7ype of Construction:
12.Has there been a previous application for a Special Permit from the Planning board on these premises?Yes,if so,
when and for what We of construction?2020 salve ra'eet as ro osed herein
I3.Section of Zoning Bylaw that Special Permit Is Being Requested:L 195-1--.�0.7;Article 2, § 195-2.2 driveway
14.Petitioner and landowner signature{s)l
#ivory upplicalion coca spnchd Pcrnlil shall be nladc on t11€s Cann,which is the official romt oflfle Planning Board.Pvcry appl€cnlion shoo
he r0cd%vial the Town Clerk's of flw,11 shall be the respouslbilky or 111C pet€tioncr to furnish nh,,upporting doctnticntntioll w€111 111i:t
appticulion.'fhe dated copy of 111is nppl€cat€an rote€ved by tiie-town Cicrk of P1mmbl9 Orlice dots not absolve the upplicant from this
nsponsibiI, •rbc pet€11 ner:salt be responsible for all cxpeescs for filing and tcgni notificalian.i'nilure Io comply%vith application
rt uiremcnls, 1s tiled he yin an tin the Plnn` srd Was and RegulAhO11R nlny result nn a(kiiiissnf by(lie Planning o0ard of 111Fs
nPlsEtcatiwl ns€neompfct . C...�// r�
Petitioner's signature:
Print or type nalne here,
.1
Owner's Signature:
Print or type name here;Y.R.Limited Partnership,Mathew Yat<ovakis,General Partner
15.Please list title of plans and documents you will be attaching to this application.
Please see attached list.
Paige 2 of 3
120 Main Street,Plooning peel.,Mor1h Andover,hfassadluseils 01845
Phone 978.608.9535 Fux 978,688.9542 Web svvrtv.northandoverma.gov
Floor Area Ratio: Lot Coverage:29.6%
8.Proposed Lot(if applicable):
Lot Area(Sq.Ft): 35,238 fLot 321 Building Height:21.4
Street Frontage:542,5 Side Setbacks:6,6
Front Setback;37.7 Rear Setback:NIA
Floor Area Ratio: Lot Coverage;17j%
Lot Area(Sq.Ft): 81,424(Lot 39) Building Height: <45
Street Frontage:207.6 Side Setbacks:30.5
Front Setback:34.1 Rear Setback:NIA
Floor Area Ratio: Lot Coverage: 13.3%
9.Required Lot(as required by zoning Bylaw):
Lot Area(Sq.Ft):25,000 Building Height:45 feet
Street Frontage:125/260 feel Side Setbacks:25140 feet
Front Setback:25 feet Rear Setback;35/50 feet
Floor Area Ratio: Lot Coverage:35%
10.Existing Building(If applicable):
Ground Floor(Sq.Ft.):24,088/6,030 #of Floors: 1
Total Sq.Ft..30.118 Height:53.3
Use:Retail,restaurant Type of Construction:
11.Proposed Building:
Ground Floor(Sq,Ft.):7,500/3,352/6,030 #of Floors: t
Total Sq.Ft, 16,882 Height:45 feet
Use:Medical office restaurant coffee shop,bankType of Construction:
12,Has there been a previous application for a Special Permit from the Planning Board on these premises?Yes,if so,
when and for what type of construction?2020 same Project as proposed herein
13.Section of Zoning Bylaw that Special Permit Is (icing Requested; § 195-10.7 i Article 2,§ 195-2,2 driveway
14, Petitioner and Landowner slgnature(s),
Every applicalion for a Special 11crrliit shall be made oil ibis form,which is the official rorm of the Planning Board.Every appllcalioa shall
be filed wish the Town Clerk's office.it shall be die responsibility of ilte pelitinncr to furnish nil supporting documcatalion with lhis
application.Tile dated copy of this application received by the Town Clerk or Planning Mice does not absolve die applicant franc this
responsibility.The petitioner shall be responsiblc far all cspaasos for tiling and legs€iaatilicnrian.Fnif sre to comply wlih tipplicadon
rcrluirenicats,as cited herein and in the Planning Board Rules and Regulations may result in a dismissal by the Ploaning Board Mills
application as incomplete.
Petitioner's Signature: Yrua�°�z
Print or type name here: 6/Jonathan Hueber
Owner's Signature; A
Print or type flame here: S IL&" t a
15.Please list title of plans and documents you will be attaching to this application.
Please see attached list.
Noe 2 of 3
120 Main Street,Phinniltg Dept.,Florin Andovor,Messediuselts 01045
Phone 970,608.9535 fax 970.680.9542 Wah www,norlhantloverma.gov
The following documents that were submitted in the prior application as well as the peer review
comments and responses are incorporated in this application along with the updated site plan
highlighting the lot lines
Plan titled: Proposed Site Plan Documents for Crosspoint proposed Site flan Development
Location of Site: 419 & 435 Andover Street Essex County Town of North
Andover, Massachusetts Map 24, Lots 32&39
Prepared for: Crosspoint Associates,Inc.
188 Needham Street,Suite 255
Newton,MA 02464
Prepared by: Bohler Engineering
45 Franklin Street, 50i Floor
Boston,MA 02110
Scale: I"—20'
Date: October 22,2020,Revised December 8,2020 and December 21,2020
Sheets: C-101, C-102, C-201,C-301, C-401, C-501, C601, C-602, L-100, L-101, L-200,C-
901, C-902,C-903,C-904,C-905 and 1 of 1
Stortniva ter Management Report
Prepared by: Bolder Engineering
45 Franklin Street,5"'Floor
Boston,MA 02110
Prepared for: Crosspoint Associates,Inc.
188 Needham Street,Suite 255
Newton,MA 02464
Dated: October 22,2020
Storinivater Operation and Maintenance Plan
Prepared by: Bohler Engineering
Prepared for: Crosspoint Associates,Inc.
Dated: October 22,2020
Elevations
Prepared by: Phase Zero Design(Building A)
Dated: October 20,2020
Prepared by: Corestates Group(Building B)
Dated: October 22,2020
Transportation Impact Assessment
Prepared by: Vanasse&Associates,Inc.
Prepared for: Crosspoint Associates,Inc.
Dated: October 2020
ADDENDUM TO APPLICATION OF CROSSP®INT ASSOCIATES INC.
4I9/435 AND OVER ST,NORTH ANDOVER
Petitioner Crosspoint Associates, Inc. ("Crosspoint") seeks a special permit to allow
shared driveways for the properties located at 419 and 435 Andover Street. In a prior,related
application Crosspoint sought a special permit and site plan:approval to redevelop the lots by
demolishing the existing Ethan Allen and the BIiss Spa and Salon building and constructing two
smaller buildings with a total square footage of 10,852 square feet to house new conurnercial
tenants. The new buildings will conform to the latest building code, improving the fire safety of
the site. The Bertucci's Restaurant building will remain as is. However,the two lots will remain
in separate ownership. As proposed on the plans submitted herewith,the two lots will be
accessed via shared driveways, with parking shared across both lots (a special permit for which
was previously requested). The proposed design permits the relocation of the existing driveways
away from the Route 114 and Route 125 intersection without diminishing access to the lots.
Pursuant to the Zoning Bylaw, a"driveway"is defined as a"way located on a lot, which
provides vehicular access to the buildings on the lot. Each driveway shall service no more than
one lot. Subject to the granting of a special permit from the Planning Board, a driveway may be
shared by not more than two lots. Each such shared driveway must be regulated by a recorded
maintenance agreement running in perpetuity with the land."
The Planning Board may grant a special permit to permit the shared driveways. The
proposal provides adequate access to the properties for the needs of persons employed at or
visiting the businesses thereon,will maximize the efficiencies of parking facilities and uses,
reduces the hazards which would be created by meeting the Bylaw requirement of a driveway on
each Iot, reduces congestion and contributes to traffic safety, accommodates all vehicles queuing
on site, and provides a better site design than the Current design of the property. The proposed
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driveways are in an appropriate location for the proposed retail commercial uses and the
surrounding traffic patterns. The proposed shared driveways will not adversely affect the
neighborhood, will provide improved access to the site, and will incorporate future design
changes by MassDOT.
The proposed shared driveways will not create a nuisance or hazard to vehicles or
pedestrians, and provides adequate access for the proposed use. The proposed shared driveways
will not lead to an increase in traffic volumes or traffic congestion; the shared driveways as
shown improves the on-site traffic patterns, and avoids unsafe conflicts between motor vehicles
and pedestrian traffic. Additionally, pedestrians will be able to access the site from both Route
114 and Route 125 and safely navigate the site. Granting the special permit is in harmony with
the general purpose and intent of this bylaw.
Crosspoint will enter into a reciprocal casement agreement for access,parking,and
maintenance with respect to the shared driveways. A draft is provided herewith. Crosspoint has
already begun working with the Department of Transportation with respect to the curb cuts and
other traffic improvements.
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2.18,21
RECIPROCAL EASEMENT AGREEMENT AND
DECLARATION OF RESTRICTIONS
THIS RECIPROCAL EASEMENT AGREEMENT AND DECLARATION OF
RESTRICTIONS (this "Agreement"), is made as of the_ day of , 20_, by
and between [CROSSPOINT ENTITY TAKING TITLE], a Massachusetts limited liability
company with an address of c/o Crosspoint Associates, Inc., 300 Third Ave,, Ste.2, Waltham, MA
02451, Attn: Jonathan Hueber, hereinafter referred to as "Cross oint", and THOMPSONS
RESTAURANT, INC. OF NORTH ANDOVER, a Massachusetts corporation with a usual place
of business at 900 Cummings Center, Ste. 202T, Beverly, MA 01915, hereinafter referred to as
"Thompson".
PRELIMINARY RECITALS
A. Crosspoint is the owner of a certain parcel of land commonly known as 419 Andover
Street, North Andover, Massachusetts (the "Crosspoint Parcel"). The Crosspoint Parcel is
more particularly described on Exhibit A-1 attached hereto and made a part hereof,
B. Thompson is the owner of a certain parcel of land commonly known as 435 Andover
Street, North Andover, Massachusetts (the "Thompson Parcel"). The Thompson Parcel is
more particularly described on Exhibit A-2 attached hereto and made a part hereof.
C. George F. Thompson, predecessor-in-interest to Crosspoint and Thompson, reserved unto
itself the right to use a portion of the driveway contiguous to his premises over a portion of
Parcel A pursuant to that certain Deed dated November 19, 1941 and recorded at Book
647,page 509 (the "Driveway Easement");
D. The parties desire to enter into this Agreement to terminate certain easements and to
provide for the exchange of certain easements for purposes of cross-access for vehicles
and parking rights between the Crosspoint Parcel and the Thompson Parcel and to
provide for certain restrictive covenants on the Crosspoint Parcel and the Thompsons
Parcel all as hereinafter provided and more particularly set forth herein.
NOW, THEREFORE, for valuable consideration paid by each party to the other, the
receipt and sufficiency of which are hereby acknowledged, and in further consideration of the
mutual covenants and agreements herein contained, it is hereby covenanted and agreed by and
among the parties as follows:
1. Defined Terms. As used herein, the following terms shall have the following
meanings:
1.1. "Access Easement Areas" shall mean the areas subject to the access easements set
forth in Section 3 below,
1.2. "Parking Easement Area" shall mean the area subject to the parking easement set
forth in Section 4 below.
1.3. "Parcel" or "Parcels" shall mean the Crosspoint Parcel and/or the Thompson.
Parcel, as the context may appropriately require.
1.4. "Party" or "Parties" or "parties hereto" shall mean Crosspoint or Thompson, as
the context may appropriately require, and their respective successors-in-title.
2. Termination of Easement Right. Upon the recording of this Agreement, the
Driveway Easement is hereby forever terminated, released, discharged, and of no further force and
effect.
3. Grant of Access Easements.
3.1 Crosspoint hereby grants to Thompson for the use and benefit of Thompson and
Thompson's successors-in-title, together with the tenants and occupants of the Thompson Parcel,
their successors and assigns, and their respective employees, agents, contractors, invitees,
customers, patrons, visitors, permittees, successors and assigns, a non-exclusive easement and
right of access for the purpose of pedestrian and two-way vehicular traffic (passenger vehicles
and trucks) over, across and upon the Crosspoint Parcel shown on the plan attached hereto as
Exhibit A-3 and made a part hereof(the "Thompson Access Easement Area'), in common with
Crosspoint, and its successors-in-title, together with the tenants and occupants of the Crosspoint
Parcel, and their respective employees, agents, contractors, invitees, customers, patrons, visitors,
permittees, successors and assigns, and others legally entitled thereto.
3.2 Thompson hereby grants to Crosspoint, for the use and benefit of Crosspoint and
its successors-in-title, together with its tenants and occupants of the Crosspoint Parcel, their
successors and assigns, and their respective employees, agents, contractors, invitees, customers,
patrons, visitors, permittees, successors and assigns, a non-exclusive easement and right of
access for the purpose of pedestrian and two-way vehicular traffic (passenger vehicles and
trucks) over, across and upon the Thompson Parcel designated on Exhibit A-3 (the "Crosspoint
Access Easement Area" which, together with the Thompson Access Easement Area, shall be
referred to collectively as the "Access Easement Areas"), in common with Thompson, and its
successors-in-title, together with the tenants and occupants of the Thompson Parcel, and their
respective employees, agents, contractors, invitees, customers, patrons, visitors, permittees,
successors and assigns, and others legally entitled thereto.
4. Grant of Parking-Easements.
4.1 Crosspoint hereby grants to Thompson for the use and benefit of Thompson and
its successors-in-title, together with the tenants and occupants of the Thompson Parcel, their
successors and assigns, and their respective employees, agents, contractors, invitees, customers,
patrons, visitors, permittees, successors and assigns, a non-exclusive easement for the purpose of
transient parking of passenger vehicles (but not overnight) in connection with the retail
businesses operated at the Thompson parcel, provided, however, that no such use shall
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unreasonably burden the use and enjoyment of the Crosspoint Parcel, within those parking areas
on the Crosspoint Parcel shown on the plan attached hereto as Exhibit A-3 and made a part
hereof (the "Thompson Parking Easement Area"), in common with Crosspoint and its
successors-in-title, together with the tenants and occupants of the Crosspoint Parcel, and their
respective employees, agents, contractors, invitees, customers, patrons, visitors, permittees,
successors and assigns, and others legally entitled thereto. Notwithstanding anything to the
contrary set forth herein, Crosspoint reserves for itself and its successors-in-title, the right from
time-to-time to dedicate certain parking spaces on the Crosspoint Parcel for the exclusive use of
tenants of the Crosspoint Parcel during regular business hours and Thompson shall have no
rights to use such parking spaces, provided that in no event shall such exclusively marked spaces
as may exist from time-to-time materially interfere with Thompson's rights hereunder,
Thompson acknowledges and agrees that as of the date hereof, Crosspoint shall offer exclusive
spaces in those parking areas on the Crosspoint Parcel marked on the attached Exhibit A-3 and
that such exclusive spaces do not materially interfere with Thompson's rights hereunder.
4.2 Thompson hereby grants to Crosspoint for the use and benefit of Crosspoint and
its successors-in-title, together with the tenants and occupants of the Crosspoint Parcel, their
successors and assigns, and their respective employees, agents, contractors, invitees, customers,
patrons, visitors, permittees, successors and assigns, a non-exclusive casement for the purpose of
transient parking of passenger vehicles (but not overnight) in connection with the businesses
operated at the Crosspoint parcel,provided, however, that no such use shall unreasonably burden
the use and enjoyment of the Thompson Parcel, within those parking areas of the Thompson
Parcel shown on the plan attached hereto as Exhibit A-3 and made a part hereof and designated
thereon as (the "Crosspoint Parking Easement Area" which, together with the Thompson
Parking Easement Area, shall be referred to collectively as the "Parking Easement Areas"), in
common with Crosspoint and its successors-in-title, together with the tenants and occupants of
the Crosspoint Parcel, and their respective employees, agents, contractors, invitees, customers,
patrons, visitors, permittees, successors and assigns, and others legally entitled thereto.
Notwithstanding anything to the contrary set forth herein, Thompson reserves for itself and its
successors-in-title, the right from time-to-time to dedicate certain parking spaces on the
Thompson Parcel for the exclusive use of tenants of the Thompson Parcel during regular
business hours and Crosspoint shall have no rights to use such parking spaces, provided that in
no event shall such exclusively marked spaces as may exist from time-to-time materially
interfere with Crosspoint's rights hereunder.
5. Easements Generally.
5.1. No Party will use or permit the Easement Areas under their ownership or control
to be used for any purpose which would materially adversely affect the rights of any other Party
subject to the provisions of Section 3.1.2 hereof, no party will construct or locate, or allow
construction or location of, any fence, barricade, structure, building, or other obstruction which
would materially adversely interfere with the intended use thereof, or the five flow of traffic
permitted by this Agreement to, across or from the Crosspoint Parcel and the Thompson Parcel.
5.2. The term of this Agreement shall be deemed to have commenced on the date
hereof, and shall run with the land forever. The Easements granted herein are not re-locatable,
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except to the extent required by the state and/or local authorities, without the express written
agreement of the record title owners from time to time of the Crosspoint Parcel and the
Thompson Parcel. The Easements granted herein are not "easements in gross", but are
appurtenant solely to the Crosspoint Parcel and the Thompson Parcel.
6. Reservation of Rights.
6.1 The easement rights set forth and provided in Sections 3 and 4 hereof shall be
subject to the following reservations as well as other provisions contained in this Agreement:
6.1.1 Crosspoint and Thompson reserve the right to close off the Crosspoint
Parcel and the Thompson Parcel, respectively, for such period of time as may be legally
necessary to prevent the acquisition of prescriptive rights therein by anyone. Before closing off
any part of the Crosspoint Parcel or the Thompson Parcel as provided herein, Crosspoint or
Thompson (as the case may be) shall give at least 30 days advance written notice to the other
party of its intention to do so and must coordinate its closing with the activities of the other
parties so that de minimus interference with the operation of the respective businesses on the
Parcels occurs. In addition, the parties reserve the right, subject to the notice and de minimus
interference requirements set out in the previous sentence, to close off temporarily, if necessary,
any part of the Easement Areas under their ownership or control in order to permit alterations or
maintenance of existing buildings, utility lines, parking areas, entrances and exits, and other
improvements or the construction of additional buildings, utility lines, parking areas, entrances
and exits, and other improvements on or around the Easement Areas.
6.1.2. The easement rights set forth in this Agreement are granted based on the
traffic incidental to, and the burden anticipated as a result of, the use of the Crosspoint Parcel for
retail use and the use of the Thompson Parcel for retail use. Neither Crosspoint, nor Thomspon,
nor their respective successors and assigns shall take any action which is likely to result in use
of, or traffic over, the Easement Access Areas or the Parking Easement Area in excess of the
traffic and burden contemplated by the aforementioned use of the Parcels without first obtaining
the written consent of the other Parties.
7. Maintenance.
7.1 Each Party shall keep and maintain the Easement Areas under their ownership or
control in good condition and repair. The maintenance is to include, without limitation, the
following:
7.1.1. Maintaining the surfaces in a level, smooth and evenly covered condition
with the type of surfacing material originally installed or such substitute as shall in all respects be
equal in quality, use, and durability;
7.1.2. Removing all papers, ice and snow, mud and sand, debris, filth and refuse
and thoroughly sweeping the parking and vehicular and pedestrian travel areas to the extent
reasonably necessary to keep such areas in a clean and orderly condition;
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7.1.3. Placing, keeping in repair and replacing any necessary appropriate
directional signs, markers and lines; and
7.1.4. Operating, keeping in repair and replacing, where necessary, such artificial
lighting facilities as shall be reasonably required.
8. Insurance,
8.1 Beginning with the date of this Agreement, Crosspoint and Thompson shall, at
their sole expense, maintain or cause to be maintained with respect to the Crosspoint Parcel and
the Thompson Parcel, respectively, commercial general liability insurance in an amount not less
than $1,000,000 (single limit) and property damage insurance in an amount not less than
$500,000, with contractual liability endorsement attached, insuring against injury to persons and
damage to property.
8.2 Upon request (made not more often than once annually), Crosspoint and
Thompson shall deposit or cause to be deposited with the other certificates of the insurance
which such party is required to maintain under this Article. The insurance required hereunder
may be maintained under a "blanket policy" or by Crosspoint or Thompson, as the case may be,
but no insurance policy required to be maintained by any party shall be canceled or changed
without at least ten (10) days' prior written notice to the other party. All insurance under Section
8.2 hereof shall be maintained with responsible insurance companies qualified to do business in
the Commonwealth of Massachusetts.
9, Condemnation.
9.1 if any portion of the Easement Areas is taken by eminent domain, the portion of
the Easement Areas so taken or deeded shall be relieved and released from the terms of this
Agreement. The rights of the Patty whose Parcel is the subject of such taking or transfer with
respect to the other Party's Parcel shall not be affected by such taking or transfer.
9.2 Any award in respect of any condemnation of the Crosspoint Parcel shall belong
to Crosspoint, and any award in respect of any condemnation of the Thompson Parcel shall
belong to Thompson; provided, however, that each party who enjoys an easement, right or
interest created by this Agreement shall be entitled to its own separate claim against the
condemning authority for the value attributable to any such easement, right or interest to the
extent that such easement no longer benefits the Parcel not so taken, provided that such claim
shall not affect or diminish the claim of the Party whose Parcel was affected by such
condemnation.
10. Casualty.
10.1 In the event of a casualty or other damage to the improvements located on either
of the Parcels, then to the extent that the said casualty or damage has an adverse impact upon the
Easement Areas located on said Parcel, the owner of the affected Parcel(s) shall either repair any
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such damage within a reasonable period of time, or raze the remaining improvements located on
the affected Parcel, remove all debris, and grade the Parcel so as to minimize any adverse impact
upon the Easement Areas,
11. Restrictive Covenants,
11.1 Crosspoint and Thompson hereby declare that the Thompson Parcel shall be held,
sold and transferred, conveyed and occupied subject to the following use restrictions: the
Thompson Parcel shall not be used (the "Cross oint Exclusives") for so long
as such Crosspoint Exclusive use exist, all of which shall be binding on all parties having or
acquiring any right, title and interest therein; it being agreed that the Thompson Exclusive (as
hereinafter defined) shall include the serving of coffee as one of the many beverages being sold.
Crosspoint and Thompson hereby declare that the Crosspoint Parcel shall be held, sold and
transferred, conveyed and occupied subject to following use restriction: excluding coffee shop
uses, the Crosspoint Parcel shall not be used as (the "Thompson Exclusive")
for so long as a food-serving establishment continues operating at the Thompson Parcel, which
shall be binding on all parties having or acquiring any right, title and interest therein.
12. Subordination. The rights of any party foreclosing under any lien instrument
encumbering any part of the Crosspoint Parcel or the Thompson Parcel shall at all times be
subject and subordinate to the terms of this Agreement and any party foreclosing said lien
instrument shall acquire title to either the Crosspoint Parcel or the Thompson Parcel, as
applicable subject to all of the terms, covenants and conditions of this Agreement.
Notwithstanding the foregoing, any lien for unpaid amounts arising under this Agreement and
recorded against the Crosspoint Parcel or Thompson Parcel, as applicable, or any portion thereof,
in connection with this Agreement shall be subordinate to any mortgage recorded prior to such
lien.
13. Notices,
11.1 Any notice, demand, request, consent, approval or other communication which
any party hereto is required or desires to give or make or communicate to the others shall be sent
by overnight service of nationwide repute (with receipt confirmed) or sent by certified mail-
return receipt requested, to the parties as follows and shall be effective upon receipt or refusal of
delivery by the party to whom sent:
If to Thompson: THOMPSONS RESTAURANT, INC. OF NORTH ANDOVER
900 Cununings Center, Suite 202T
Beverly, MA 01915
and with a copy to: Robert Lavoie, Esq.
Johnson& Borenstein, LLC
12 Chestnut St,
Andover, MA 01810
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If to Crosspoint: c/o Crosspoint Associates, Inc.
300 Third Avenue, Suite 2
Waltham, Massachusetts 02451
Attention: Jonathan Hueber
With a copy to: Rogin Nassau LLC
CityPlace I
185 Asylum,Street
Hartford, Connecticut Ob 103
Attn: Flynn Boonstra
14. Default and Enforcement.
14.1 If one party violates any of the provisions of this Agreement (the "Defaulting
Party") and shall permit such default to continue for a period of fen (10) days after receipt of
written notice of such default from the other party, the other party may, at its option, without
waiving any claim for damages for breach of agreement, cure such default for the account of the
Defaulting Party and any amount reasonably paid or any contractual liability reasonably incurred
by the curing party in so doing shall be deemed paid or incurred for the account of the Defaulting
Party, and the Defaulting Patty agrees to reimburse the curing party therefor or save the curing
party harmless therefrom, together with interest at the prime rate of interest as published in the
Wall Street Journal plus three (3%) percent per annum from the date such costs are incurred by
the curing party; provided, however, that the curing party may cure such default as aforesaid
prior to the expiration of said waiting period, but after written notice to the Defaulting Party, if
its curing of said default is reasonably necessary to prevent substantial loss or damage to the
curing party or any of the occupants of the Lot owned by the curing party. If the curing party
shall not be reimbursed promptly upon demand for such reasonable amounts as shall be so paid
for the account of the Defaulting Party, the curing party may sue for and recover such reasonable
amounts, together with interest thereon and the reasonable cost of recovery and may place a lien
on the Defaulting Party's parcel. For any other default hereunder, each party shall be entitled to
avail itself of any legal or equitable remedies.
14.2 The specified remedies to which any person entitled to enforce this Agreement
may resort under the terms of this Agreement are cumulative and are not intended to be exclusive
of any other remedies or means of redress to which any person entitled to enforce this Agreement
may be lawfully entitled in case of any breach or threatened breach of any provision of this
Agreement. Failure to insist in any one or more cases upon the strict performance of any of the
covenants of this Agreement or to exercise any remedy herein contained shall not be construed
as a waiver or a relinquishment for the future of such covenant or remedy.
14.2 No delay or omission in the exercise of any right accruing upon any default of any
party hereto shall impair any such right or be construed to be a waiver thereof, and every such
right may be exercised at any time during the continuance of such default. No waiver of any
default under this Agreement shall be effective or binding unless made in writing and no such
waiver shall be implied from any omission to take action in respect to such default. No express
written waiver of any default shall affect any other default or cover any other period of time
i
other than any default and/or period of time specified in such express waiver. One or more
written waivers of any default under any provision of this Declaration shall not be deemed to be
a waiver of any subsequent default in the performance of the same provision or any other term or
prolusion contained in this Agreement,
14.3 No breach, whether or not material, of the provisions of this Agreement shall
entitle either party to cancel, rescind or otherwise terminate this Agreement, but such limitation
shall not affect, in any manner, any other rights or remedies which any party may have hereunder
by reason of any breach of the provisions of this Agreement.
15. Miscellaneous.
15.1 Nothing contained in this Agreement shall be construed to make the Parties hereto
partners or joint venturers or to render any of said Parties liable for the debts or obligations of
another party.
15.2 No delay or omission by any Patty in exercising any right or power accruing upon
any non-compliance or failure of performance by the other Party under the provisions of this
Agreement shall impair any such right or power or be construed to be a waiver thereof. A
waiver by any Patty of any covenant, condition, provision or performance under this Agreement
shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant,
condition,provision or performance of this Agreement.
15.3 This Agreement shall be governed by and construed and enforced in accordance
with the laws of the Commonwealth of Massachusetts.
15.4 In the event any provisions of this Agreement or the application thereof to any
person or circumstance shall to any extent be held to be invalid or unenforceable, the remainder
of this Agreement and all of its other provisions, and all portions thereof, as well as application
thereof to any other person or circumstance, shall be severed therefrom and shall not be affected
thereby, and each such provision or portion thereof shall be valid and enforceable to the fullest
extent permitted by law.
15.5 No agreement shall be effective to add to, change, amend, modify, waive or
discharge this Agreement, in whole or in part, unless such Agreement is in writing or signed by
each Party hereto.
15.6 This Agreement may be executed in counterparts, each of which shall be deemed
an original and all of which together shall constitute one and the same instrument.
15.7 No provisions contained in this Agreement shall be construed to grant any gift,
dedication, or any irrevocable rights to the general public or to any public purpose whatsoever
of, in, or to any portion of the Crosspoint Parcel or the Thompson Parcel or any improvements
thereon, it being the intention of the Parties hereto that this Agreement shall be strictly limited to
or for the purposes herein expressed.
8
15.8 Except as herein specifically provided, no rights, privileges or immunities of any
parties hereto shall inure to the benefit of any third party.
15.9 Upon the written request of either party or the holder of a security interest in either.the
Crosspoint Parcel or the Thompson Parcel, Crosspoint and/or Thompson, as applicable, shall issue a
cedificate within ten(10)business days setting forth any known violations of this Agreement.
15.10 Except as herein otherwise expressly provided, the covenants, conditions and
agreements contained in this Agreement shall bind and inure to the benefit of Crosspoint and
Thompson and all future owners of the Crosspoint Parcel, all future owners of the Thompson
Parcel, and their respective successors-in-title.
SIGNATURES ON NEXT PAGE
9
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be
signed and executed as an instrument under seal as of the date first above written,
[Crosspoint entity]
By:
Name:
Title:
THOMPSONS RESTAURANT, INC. OF NORTH
ANDOVER
By:
Name:
Title:
10
STATE OF MASSACHUSETTS )
ss:
COUNTY OF )
On this day of , 20 , before me personally appeared , the
of , the signer and sealer of the foregoing instrument, and
acknowledged the same to be his/her free act and deed in such capacity, and the free act and deed
of
Notary Public
Commissioner of the Superior Court
My Commission Expires:
STATE OF MASSACHUSETTS }
) ss:
COUNTY OF )
On this day of , 20 before me personally appeared , the
of , the signer and seater of the foregoing instrument, and
acknowledged the same to be his/her free act and deed in such capacity, and the free act and deed
of
Notary Public
Commissioner of the Superior Court
My Commission Expires:
11
EXHIBIT A-1
CROSSPOINT PARCEL
419 Andover Street
A certain parcel of land with buildings thereon situated in North Andover, Massachusetts shown as
parcels A and B on a plan entitled "Plan of Land in North Andover, Massachusetts, owned by The
Furniture Barn, Inc"by Charles C Martin, Registered Land Surveyor, September 1970, recorded in the
Essex North District Registry of Deeds as plan number 6424, said premises being more particularly
bounded and described as follows:
Beginning at an iron post on the westerly or northwesterly side of Andover Street one hundred forty-three
and thirty-two hundredths(143 32)feet, more or less, southwesterly from a Massachusetts highway
boundary marker, thence
Turning and running S 200 27' 05"W along the westerly side of said Andover Street. two hundred seven
and fifty-nine hundredths (207 69) feet to an iron post, thence
Turning and running N 81' 28' 30" W along boundary of Thompson Restaurant, Inc. two hundred ninety-
three and two hundredths (293.02) feet to an iron post at Turnpike Street; thence
Turning and running N 35"44' 55"W along the southerly line of said Turnpike Street one hundred eleven
and seventy-two hundredths (111.72)feet to an iron post, thence
Turning and running N 47" 40'20" E along land now or formerly of Red Squire Realty Trust, two.hundred
forty-nine and twenty-two hundredths (249.22) feet to a stake; thence
Turning and running S 660 10' 55" E a distance of two hundred sixty-five and ninety-seven hundredths
(265.97)feet io the point of beginning at North Andover Street.
12
EXHIBIT A-2
THOMPSON PARCEL
435 Andover Street
A certain parcel of land with the buildings thereon. situated in North Andover and bounded and described
as follows:
Beginning a stone bound on the Salem Turnpike, so called, and then running Northerly 35-44'-55"West,
two hundred.eighty (280) feet to a point; thence in and Easterly direction, two hundred ninety-five and
53/100 (295.53)feet by other land of Ethel M. Freeman to Andover Street, so called; thence Northerly 20-
27'-05" East, one hundred eighty seven and 50/100(187.50) feet to a stone bound on Andover Street—
thence in an arc seventy four and 89/1 00 (74.89) feet to the bound first mentioned, being the point of
beginning; containing 35,567.4 square feet; being pan of Lot twelve(12) shown on a Plan of land in North
Andover, Massachusetts for Ethel M. Freeman, P.C. Danforth, Surveyor, said plan being dated November
9, 1939, and recorded in the Essex North Registry of Deeds, and being plan number 1236; see also
Essex North Registry of Deeds Plans 5572, 9383, 11989, and 14412.
13
EXHIBIT A-3
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Building {gnso"atinn Ha+rlth Ptanning 5tavans Estale Zoning
Certification of Payment of Municipal Taxes, lees, Assessments,
Betterments and Other Municipal Charges
The Town of North Andover Genera( Bylaw Chapter 129-1, provides that any application for a
permit or license may be denied, suspended or revoked if the holder thereof has failed or
refused to pay any taxes, fees, assessments, betterments or other municipal charges. By
signing this application, the applicant represents that he or she has paid all such taxes and fees,
I_Stuart Thompson , certify under the penalties of perjury that to the best of my
knowledge and belief, I have not neglected or refused to pay any municipal taxes, fees,
assessments, betterments or any other municipal charge including amounts assessed under the
provisions of section twenty-one D, or am not applying for a license or permit with respect to
any activity, event or other matter which is the subject of such license or permit and which
activity, event or matter is carried out or exercised or is to be carried out or exercised on or
about real estate whose owner has neglected or refused to pay any local taxes, fees,
assessments, betterments or any other municipal charge.
Signed under oath; �.
Name
435 Andover Street, North Andover, MA
Address
Does the Property Owner own any additional property in North Andover (Yes or No)?
No (YIN).
If yes, please list the property address of any additional property.
Property Address;
North Andover Tax Collector Signature
Name
Date
4,.
-N l K,
PLANNING DEPARTMENT
building Conservaiion houlih Planning Stevens Estate Zoning
Certification Of Payrnent of Municipal Taxes, Fees, Assessments,
Betterments and Other Municipal Charges
The Town of North Andover General Bylaw Chapter 129-1, provides that any application fora
permit or license may be denied, suspended or revoked if the holder thereof has failed or
refused to pay any taxes, fees, assessments, betterments or other municipal charges. By
signing this application, the applicant represents that he or she has paid all such taxes and fees,
f, Mathew Yakovakfs, General Partner of Y.R. Limited partnership, ceilify under the penalties of
perjury that to the best of my knowledge and belief, I have not neglected or refused to pay any
municipal taxes, fees, assessments, betterments or any other municipal charge including
amounts assessed under the provisions of section twenty-one D, or am not applying for a
license or permit with respect to any activity, event or other matter which is the subject of such
license or permit and which activity, event or matter is carried out or exercised or is to be carried
out or exercised on or about real estate whose owner has neglected or refused to pay any local
taxes, fees, assessments, betterments or any other municipal charge.
Signed under oath:
Name: Mathew Y� vakis, GP of Y.R, Limited Partnership
Address: 419 Andover Street, North Andover
Does the Property Owner own any additional property in North Andover(Yes or No)?
-(YiN).
if yes, please list the property address of any additional property.
Property Address:
North Andover Tax Collector Signature
Name
Date
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