HomeMy WebLinkAboutSmolak & Vaughan Request for Change of NEF Program Lender 2005.5.27 - Correspondence - 0000 Meetinghouse Road 5/27/2005 . j
SMOLAK & VAUGHAN LLP
Attorneys at Law
Jefferson Offlee Park
820 Turnpike Street, Suite�a.o3
North Andover,Massachusetts 01845
Telephone 978-327-5220
Facsimile 978-327-5219
John T.Smolak,Esq,
Direct 978-127-5215
Email:jsmolak@)SmolakVaughanxom
May 27,2005
BY E-MAIL AND BY HAND
Ellen McIntyre,Chair
Zoning Board of Appeals
Town of North Andover
400 Osgood Street
North Andover,Massachusetts 01845
RE: MEETINGHOUSE COMMON$COMPRFHFNStVE PERmn,DECIMON—
CHANGE OF NEF.PROGRAM LENDER
No.2001-033, dated May 24, 2002, as amended
Project; Meetinghouse Commons
Property: South Bradford Street, North Andover
ARplicant& Owner; Meetin house Commons LLC
Dear Board Members:
This letter constitutes a request by the Applicant to approve a change in the
Meetinghouse Commons Project lender under the New England Fund (NEF) Program
from Salem Five Cents Savings Bank to StonehamBank-A Co-operative Bank.
As you may recall, the Board previously voted to approve the form of regulatory
agreement and deed rider for the project,and executed the regulatory agreement on or
about.January 13, 2005. Since that time, the Applicant has decided to change the NEF
Program lender for the Meetinghouse Commons project from Salem Five Cents Savings
Bank to StonehamBank-A Co-operative Bank. Accordingly, the Salem Five Cents
Savings Bank,by letter dated May 9, 2005,submitted a request to the Federal Home
Loan Bank of Boston(FHLB13) to transfer the NEF Program funding obligation for the
Project to StonehamBank. In turn, the FHLBB approved the transfer of the funding
obligation to StonehamBank- A Co-operative Bank by letter, dated May 17,2005.
Copies of these letters are attached. Since the FHLBB transfer letter was issued,
StonehamBank has commenced financing of the Project. Moreover, we have contacted
the Legal Office of the Department of Housing and Community Development which has
also indicated its approval of the change.
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SMOLAK & VAUGHAN LLP
Ellen McIntyre,Chair
May 27,ZOOS
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To this end, and to reflect the fact a new lender under the NEF Program has been
secured for the.project, the Applicant respectfully requests the.Board to approve the
change of NEF Program lender to StoneharnBank. We have also modified the
Regulatory Agreement and Deed Rider to simply reflect the change to the new NEF
Program Lender. A compare version of the previously approved Regulatory Agreement
and Deed Rider which show the proposed modifications, along with a proposed form of
decision, are attached. Upon approval of this change, the Applicant also requests the
Board to re-execute the revised Regulatory Agreement,
Please contact nee at your earliest convenience should you have any questions,
and please place this matter on the Board's agenda for the 14'n of June,
Sincerely,
*JohInSmolak
JTS/
cc, Thomas Zahoruiko, Manager, Meetinghouse Commons LLC
Jane( Spencer, Senior Vice President, StolteharnBank-A Co-operative Bank
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05/09/20093 09'4e 970744835E sALi;Rt 5 PAGE e2ra2
Salemfiv7e
May 9,2005
Mr. John T.Eller
Semor Vice President
Rousing and Coulmanity hwestment
Federal Home Loan Bank of Bastolt
l l l FlUntirigton Avenue
foster,MA 02199
Re: Meetinghouse Coratnaons LLC,Nortia Andover, MA
NBF 1'lmject#N-0192
Dent Jobn:
The p�nicipai v£Meetingb(ot>se Commons,•LLC has requested that the above referenced
Federal Dome Loan 19ank of Boston New England Fund commitment,originated and
applied for by the Salem Five Bank,be transferred to the, StonehamBw*of Stoneham,
MA.
A,�this is an ittlportfrnt affordable housing project for the community,please be advised
that the Salem Five Bank hereby releases its NEF commitment to the SeonehattaB�,
Guar Bank would like to extend its best wishes far success to all parties,including future
residetlts of this quality development. Please be advised tilat Salem Five will repay all
NEF borrowings on this proj ect on May 25,2005.
Should you have any further quesdow, please feel free to contact me.
Sinca
Mark H.
Senior Vice President
C9: Paulette Vass,P.HIaB
Thomas D. Zahor uiko
.lanet SPeffftr,Stonella.nl.Baok
John Smolak,Smolak&Vaughan
10):ragcx$trees.Ulm,MA 011170 4 w,vtivdiractbaeki>:g,com
Tatspltott�f3clfi 327,8l1AiK and 976,74s,W.5
Office.in Boeran,iyanvcra, nmi(to.nlLVenhvn,Lynn.paa6oJ•r,Sel
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FULBB03100
May 17,2005
leis-Janet Spencer
Senior Vice President/COMmercial Lending
Stoneham Bank, A Co-operative Bank
p_O.Box 273
Stvnehaln,MA 02180-0994
Re: Approval Transfer: N-0192 Meetinghouse Cc►z"rrtnrts at 5malak Farms.
Dear Ms. Spencer:
Your mccut request to transfer the approval for application for Meetinghouse Commons at
Smolak Farms in the amount of$1,725,000 from Salem Five Cents Savings Bank to Stoneham
Bank A Ca-operative Bank has been approved by the Fcdctal Dome Loan Bank of Boston
(Bank).
To-take down the advance,contact the Bank's Money Desk at 1-800.357-3452- The rate on the
advance will be set on the day funding is requested, When contacting the vl€ataey Desk,please
refer to the application project number N-0192. please note that NFL'advances;like other Bank
advances,are subject to a prepayment provision and the crank's Products Policy. The Sank
reserves the right to reprice any NEF advance not used fox the approved purpose,
Based on the submitted.application,this development initiative coatsists of 88 total units of which
22,ar 25 percent,will be affordable for households earning no more than 80 percent of the a na
median income as defined by the U.S.Department of Housing and Urban Development.
Requests for amendments to the application must be submitted to the Bank in writing at lest five
business days pj-ior to drawing down the funds. All NU funds trust be used within 12 months `
of approval. Unless a written request for an extension is submitted prior to expiration,the
application will be withdrawn on May 31,2006.
if you have any questions,please contact Paulette Vass,connnunity development advance
manager, at 617-292-9792. You can fax amendments or requests for extensions to Paulette at
617-261-3391,
Sincerely,
cc: Paul Peduto
Theo Noell
Foderal Rome loan Bank vE Boobn I ill Humi�G(Qr Avemjr I aaRcoo,MA OZl9? 1 63 7•292•9604 1 VAX:d17-?92 964.5
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REGULATORY AGREEMENT
IFIILDB-NEW ENOLAND FUND]
For Ownership Projects
This Regulatory Agreement (this"Agreerncnt") is made this� ,day of I t- 2005 by Deleted:1 Ail,
and between_Mrclinghousc Commons,I..LC,a Massachusetts limited liability company having Deleted; , - y
all address tt€ 121 Catter field Road N r h Andover WMICIl SCHS 01845 ("Developer"),
and Sloileliaji ank_A Co-oMcralitjTiank,of ?it)--hLJ1 -4le Avc1!L1c,Swnclwni.Massachusetts LDetoted:satcnl.lEvq{ ps s�k.}:
Ith
U?LZ;{. Attu:Janet zen Senior Vice President, a member institution of the Federal Hume i D�feted,2101 msx stial,
Loan Batik of Boston(the"Bank"). !'Deleted:oilm
UelsY6d1 Mork St.lArr
A. The Developer intends to construct all 29-unit homeownership developuteut on a
32.02-acre site off South Bradford and Dale Streets in North Andover,Massachuselts,more
particularly described in Exhibit A attached to and made a part of this Agreement(the"Project");
B. The Developer has received a comprehensive permit(the"Comprehensive
Pernlit")from the Town of North Andover, by and through its Zoning Board of Appeals(the
'*Municipality")under C'hapter40B ofthe Massaeliusetts General Laws,which permit is
recorded al The Essex North District Registry of Deeds in hook 8941-Page 289(the"Registry"),
C. The Comprehensive Permit has specified that 22 units,or 25%of the total units
in the Project will be affordable units(the"Affordable Units")which will be subjecl to this
Regulatory Agreement to restrict the sale of the Affordable Unity to qualifying low or moderate
income buyers pursuant to the I�ederul I lonte Loan Hank of'Boston's Now England Fund
("NF.F")Program and Chapter 4013.
D. Pursuant to the leans of this Regulatory Agreement,the Affordable Units will be
sold to households earning no more than eighty percent(80%)of The median income, by
household size,for the t.ttwrencc MA-NH PMSA Area((be"Base Income")as published from
time to time by the Department of Housing and Community Development of the Commonwealth
ot'Massachusetts or suecessor agency("DI ICI?").
E. The Project is being financed under the Federal Home Loan Bank of Hoston's
Ne+v England Fund("NEF")and the iNEF requites that the Developer provide the number of
Affordable Units described Above;
F, Pursuant to the requirements of the Comprehensive Permit and this Regulatory
Agreement, the Developer has agreed to retain Citizens' Housing and Planning Association, hie.
(the"Monitoring Agent")to perform monitoring and enforcement services regarding colllplialive
of the Project with the Affordability Requirement and compliance of the Developer with the
Limiled Dividend Requirement.
MAY 3
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t.i. The Affordable Units shall be specifically designated in the Master Deed
establishing the Meelinghousc Commons Condominium,which Master Deed shall be recorded at
the Registry prior to occupancy t)t the Units. The Affordable Units shall be rcfcrrcd to as the
Affordable Units in the Master Deed.
H. The Municipality has agreed to be-conic the holder of the affordable housing
restriction, as defined in M.G.L.c. 184,sees.26,31,32 and 33,as approved by the Department
of Housing and Conmlunily Development as evidenced herein,
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NOW,T14EREFORE,Ill cons►deralion of the agreemenls and covenants Set ford]i€1 ibis
Agreement,and other good and valuable consideration,the receipt and sufficiency of which are
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acknowledged,the Developer and the Bank agree and covenant as Follows:
1. Unit Designation, The distribution of the Affordable Units by unit size shall he as
set forth below:
2HR
Number of Units 22
Units/Lots Nos.
Initial Market Appraised Valuo 1,195,001)
irlitiul Affordable price(the initial $ 1 2—900
Certified Sale Price)
The Certified Sale Price of an Affordable Unit shall he the price such that a household earning
the Buse Income for a fanlily of Illree.would pay no more than 33%of gross income ror the sum
of annual debt service tan a mortgage of 95%u of the Certified Sales Price(including principal and
interestt at current interest rates)plus property taxes, insurance and any colndn€ninium/
homeowner association fees, The Affordable Units shall be specifically designated in the Master
Deed establishing the Meetinghouse Commons Condominium,which Master Deetl shall be
recorded at the Rcg,istry prior to occupancy of the Units, The Affordable Units are shall be
referred to as the Affordable Units in the Master Deed.
2. Afforc�lability, Except as specifically provided in the Deed Rider attached as
Exhibit il,the Affordable.knits shall be sold to households which have au annual income equal
In or less than the Base Income as adjusted from lime to tin►e according to D11CD guidelines.
The first sale of an Affordable Unit by the Developer shall be at a price[lot in
excess of the Initial Affordable Price set t'orth ill Section I of this Agreement for that Affordable
Unit,as the Willie may he a(iusted by the Monitoring Agent wnsisletit will)the affordability
provisions set forth in this section and in Section 1 above. Subw(plent sales of Affordable Units
shall be for sale pt ices as determined by the Monitoring Agent under the definitions set forth in
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this section and in section J above as the same may he adjusted in accordance with DKCD
guidelines(the-Maximuni Sale Price").
3. Deed Riders. Al. the time of sale of tine Affordable Units by the Developer,the
Developer shall execute and shall as a condition of stile cause line purchasers of the Affordable
Unit!,to execute a deed rider suhstanlially in the form of Exhibit B attached to and made a part of
this Agreement.(each a"Deed Rider"). Path Deed Rider shall require the unit owner at the linie
lie/she desires to sell the Affordable Unit to notify the Monitoring Agent so that the Monitoring
Agent can make a determination of the Maximum Resale Price, The owner of the Affordable
Unit must thereafter offer the unit to the Municipality at the Maximum Resale Price. The
Municipality may or may not exercise its right-of=first refusal at its soli;discretion,and if not,the
seller must find a purchaser who nieets the income guidelines.
If the Affordable Unit owner is unable to find an elig,iblc purchaser within a 120
clay period from the dale the Affordable Unit was put on the market,as determined by the date of
the first advertisement for sale,or the date all agreement was signed with a listing broker(o
market lice Affordable Unit,the seller can sell the Affordable Unit to any person,regardless of
his/her income and at the Maximum Resale Price,provided that the affordability of each
Affordable Unit will be preserved each time that subsequent resale of the Affordable Unit occurs
during the period of affordability specified in this Agreement and as more clearly sNcified in the
Deed Rider.
The Deed Ridcr requires the Affordable Unit owner anti any purchaser to execute
at the time of resale a similar Deed Rider which shall be attached to and matte a part of the deed
front the owner to the purchaser,so that the affordability of each Affordable Unit will be
preserved each time that subsequent resale of the Affordable Unit occurs during the period of
affordability specified in this Agreement.
4. Dividend Liniiia[ton. Developer agrees that the profit to the Developer or to the
partners,shareholders,or other owners of Developer or of the Project shall not exceed twenty
percent(2017n)of total development costs of tie Project,exclusivo of development fees(the
"Allowable Profit"). Upon issuance of a filial Certificate of Occupancy for all of the units ill the
Project,the Developer shall deliver to the Monitoring Agent an itemized statement of total
development costs together with a stawnicrit of gross sales revenues from[lie Project received by
the Developer to date certified by the Developer(Vertified Costs and income Statement"), Ifall
units in the Project which are offered for sale have not been sold as of the date the Certified Cost
and Inconic Statement is delivered to the Monitoring Agent,the Developer shall at least once
every ninety(90)days thereafter,until such time as all of the units which are offered for sale are
sold,deliver to the Monitoring Agent an updated Certified Cost and Income Statement, After all
units in the Project which are offered for sale have been sold,the Developer shall deliver to the
Monitoring Agent a final Certified Cost and Income Staterew. All profits from the Project in
excess of the Allowable Profit shall be paid by the Developer to the Municipality for deposit in
an affordable housing fund to he expended by the Mmiicipnlity for tine purposes of encouraging,
creating or subsidizing,the construction or rehabilitation of affordable housing elsewhere ill the
Municipality. The Allowable Profit shall be measured as the excess of certifier)income,less any
brokerage fees and commissions and selling expenses over certified costs and less all
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development costs related to the Project including costs incurred by the develaper as
adillini5trativc and overhead expenses which clo not exceed four percent (4%,)of total
development costs,excluding such admin►slrallve and overhead costs. Acceptablo development
costs include,but are not limited to,the cost of site acquisition,defined as that land value which
call be underwritten by the Project and which can be supported by the subsidizing entity's
appraisal upon which its construction loan is hMed.
5. Affirmative Marketing. The Developer shall not discriminate on the basis of race,
creed,color,sex,age,handicap,macital status, national origin or any other basis prohibited by
law in the selection of the buyers for the Affordable Units, The Developer shall affirmatively
market the Affordable Units to rninorily households through direct outreach efforts to local
churches,social service and civic organicltions as well as local and area-wide newsprint media
where minority households fire most likely to be contacted. This outreach effort must continue
for a period of al least 60 days prior to the selection of buyers for the Affordable Units. The
Developer agrees Icl maintain for at least five(5)years following the sale of the Affordable
Units,a record of all newspaper ads,outreach JOICr)translations,leaflets and any other outreach
efforts which may he inspected by the Monitoring Agent or ibe Municipality.
6. Reccorrl:�.n Upon execution of this Agreement,Cite Developer shad immediately
cause this Agrec►new to be recorded or tiled with tile Registry. Upon recording and/or filing as
applicable, the Developer shall imrnedialely trans►nit to the clank,the.Municipality,and the
Monitoring Agent evidence of such recording and/or filing.
7. Representations. The Developer represents,covenants and warrants as follows;
(a) The Developer(i)is a limited liability company duly orgitnized under Elie laws
of the Contmomvealih of Massachusetts,and is qualified to transact business
€ruder Ille laws of Ibis state,(ii)has the power and authority to own properties and
assets and to carry cut its business as now being conducted,and(iii)has full legal
right,flower and authority to cxecule and deliver this Agreement.
(i.1) The execution and Ilarfonnancc of this Agreement by the Developer(i)will not
violate or,as applicable,has slot violated any provision of law,rule or regulation,
or any order of any court or other agency or governmental body,and(ii)will not
violate or,as applicable,has not violated any provision of any indenture,
agreement,mortgage,mortgage note or other instrument to which the Developer
is a party or by which it or the Project is bound,and(iii)will not result in the
creation or iruposifion of tiny prollibiled encumbrance of any nature.
(c) "file Developer Will,at the lima of extxwion and delivery of this Agrecrnew,have
good and marketable title to the Project free.and clear of any lien or encumbrance,
subject to the encumbrances created pursuant to this Agreement,any loan
documents relating to the Project,or other permitted encumbrances.
S. Uovernina L:tw/Anlendtucnisi5everabilily. This Agreement shall be governed by
the laws of the Commonwealth of Massachusetts. Any amendments to this Agreement most he
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in writing and executed by all of the parties to this Agreement. The invalidity of tiny clause,
part,or provision of this Agreement Shall trot affect the validity of line remaining portions of this
Agreement. In the event of any ambiguity or dispute as to the interpretation of any provisions in
this Agreernent,then this Agreement shall he interpreled in accordance with the generally
accepted practices at the time of issuance of the project eligibility letter,
9. Manituring,Agent. The Developer shall retain CHAPA as the Monitoring Agent
for purposes of monitoring Developer's performance under this Agreement pursuant to a
Monitoring Services Agreement acceptai}le to the Monitoring Agent and the Bank. All notices
and reports required to he submitted under this Agreement shall be submitted directly to the
Monitoring Agent. The Monitoring Agent shall have authority to act in all matters relating to
this Agreement.
10. Notices. All notices to he given pursuant to this Agreement shall be in writing
and shall be decmed given when delivered by hand or when mailed by certified or registered
mail,postage prepaid,return receipt requested,to the parties to this Agreement at the addresses
set forth below,or to such other place as a party may from time to time designate by written
notice with a copy to the Monitoring Agent:
Developer:
Meetinghouse Commons,LLC
12.1 Carter Field Ruad
North Andover,Massachusens 01845
Attn: Thomas D.Zahoruiko, Manager
Bank:
_.--__----• Stonvharttl3tntk -A Co-es�Lraljvc €3<otl:
�Swrwhan Massachusetts 0 1�� ¢meted: tiairw Fivc CpuS I
Au n:,lane t Srtw)c,e.C, Sensor Vicc President savings n4UMI I
. . . 2Uit��ticxllrutl9
Salem
Municipality: petaled:nl t7u
Deleted:Mark n.
Zoning Board all'Appeals
Town of North Andover
400 Osgood Street
North Andover, Massachusetts 01845
Aun: Chairperson
Monitoring Agent.-
Ciliicus Housing and Planning Association,Inc.
18 Tremont Strcet
Boston,Massachusetts 02105
Attention: Executive Director
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I I. Term. 'rhe terns of this Agreement shall be that which is identified in the
Comprehensive Permit Decision,dated May 24,2002,as the same may be amended from time to
time(the"Comprchcnsive Permit Decision")and shall terminate with respect to each of the
Affordable Units on the date on which the Deed hider attached as Exhibit H is no longer
applicable to such Affordable Unit. The recording of a discharge of this Agreement executed by
the Monitoring Agent shall evidence the end of the term of this Agreement.
12. Successors and Assis;ns. The Developer intends,declares and covenants on
behalf of itself and its successors and assigns(i)that this Agreement and the covenants,
agreements and restrictions i mtained in[his Agreement shall be and are covenants running with
the land,encumbering;the Project for the term of this Agreement,anti are binding upon the
Developer's successors in title,(ii)are not merely personal covenants of the Developer,and(iii)
shall bind the Developer,its successors and assigns for the term of this Agreement, fksvcloper
agrees that tiny and all requirements of the laws of the Commonwealth of Massachusetts ttr be
satisfied in order for the provisions of this Agreement to constitute restrictions and covenants
running with the land shall be deemed lu be satisfied in fill and that any requirements orp€ivity
of estate are also decreed to be satisfied in full.
13, Default. If any default,violation or breach by the Developer under this
Agreement is not cured 10 the satisfaction of the Monitoring Agent within thirty(30)days after
notice to the Developer thereof,then the Monitoring;Agent may sand notification to the Bank
and the,FHLBB that the Developer is in violation of the terms and conditions of[his Agreement.
The Bank and/or the FHLBB may exorcise any remedy available to them,including calling its
advance under the NEF or increasing the interest rate nn such advance, The Municipality or the
Monitoring Agent may also exercise any legal remedy available to them, The Developer shall
pay all costs and expenses,including legal fees,incurred by Monitoring Agent in enforcing this
Agreement,and,in the event of any action by the Monitoring Agent against the Developer,the
Monitoring Agent shall be entitled to seek an attachment against the Developer's property
including,without limitation,its interest in the Prujeci. The Monitoring Agent may perfect a lion
on the Project by recxirding/filing one of more certificates setting forth the amount of the costs
and expenses due and owing in the Regisiry. A purchaser of the Project of any portion of it shall
be liable for the payment of any unpaid costs anti expenses which were the subject of a
recordedlfiled certificate prior to the purchaser's acquisition of the Project or portion thereof.
14. MortMorl a ee_Ccnsen, The Developer represents and warrants that it has obtained
the consent or subordination of all oxisting mortgagees of the Project to the execution and
recording of(his Agreement and to the terms and conditions of this Agreemenl and that all such
mortgagees have executed a consent or subordination to this Agreement which shall be
recorded/filed herewith.
15. Affordable Housing Restricli n, This Agreement and all of the covenants,
agreemei:ls and restrictions contained herein shall be deemed to be an affordable grousing
restriction as that term is defined in G.L.c. 184,§31 and as that term is used in G.L,c,184,§26,
3L 32 and 33,subject to the conditions contained within the Deed Rider for each Affordable.
Unit. This Agreement is made for the benefit of lhv Municipality,and the Municipality shall be
deemed to be the holder of the affordable housing restriction created by this Agreement, The
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Municipality has duLcrnrinctl that the acquiring of such affordable housing restriction is in the
public interest. Further,the Resale Restrictions contained in each of the Deed Riders which are
to encumber each of the Affordable Units at the Project pursuant to the requirements of this
Agreement shall also constitute in afrordable housing restriction as that tern.is defined'€n G.L.c,
184,§31 and as that term is used in G.L.c. 184,§§26,3 t,32,and 33,subject to the conditions
contained within the Deed Rider for each Affordable Unit, Such Resale Restrictions shall be for
the benefit of the Municipality and the Municipality shall be decuted to he the holder of the
affordable housing restriction created by the Resale Restrictions in each of the Deed Riders. The
Municipality hits determined that the acquiring or such affordable housing restriction is in the
public interest. To the extent that the Municipality ss the holder of the Resale Restrictions to be
contained in each of the Deed Riders,the Director or the DHCD by the execution of the
Certificate of Approval attached to and made a purl of this Agreement hereby approves such
Resale Restrictions in each of the Deed Riders for 111c affordable Units of the Project as required
by the provisions of GJ-c. 184,§32.
16. Responsibility of Monitoring Agent,. The Monitoring Agent ;hall riot be held
liable for any action taken or omitted Linder this Agreement so long as it shall have acted in good
Gtith and without gross negligence.
17. indemnification. The Developer, for itsell'and its successors and assigns,agrees
to indemnify and hold harmless the Monitoring Agent against all damages,costs and liabilities,
including reasonable attorney's fees,asserted against the Monitoring Agent by reason orits
relationship to the Project and under this Agreement and not involving the Monitoring Agent
acting in bred faith and with gross negligence.
_ lti,-- f_flc`e`t e3f Prior R ulttLot l;rc.t_nu nlyfl:ice is nictit_vllewl a}soil supur.wdes
Lae Ilk!40 I _Lg Agrer:iount bvtweell M4 etinghottsc C'owsm ns LLC turd S{lcttr Tjvu Cents
S,'nink 4 3.,ink,dato,cl J;llnlai- I i,?Ofl5 Ldies"(lid Re=�n!<ttoE'�' r1 u the ftmclisig itr3d
o1hel olshpqlislns under the N I�' Pro.;Lnnu havc been Irtt�S[�rred fr�si3t the 4;ileita Five C'4lIL
titt�it,_}l; Li Etlk_u>StolivIla libilok •A C't�-o)t itite batik-hy the Frdcral l lunte_I;o;tn Bank tit
f3ijslon t"E FILBB" its ividunced by a lenor,dm� d 1►`ta 17 2005 tau the Bank from tat; FHL1313.
18, Amendments, This Agreement shall not be amended without written consent of
the Monitoring Agent and Zoning Board of Appeals,
IN WITNESS WIIERHOF,the parties to this Agreement have caused lhls Agreement to
be executed as a sealed instrument as or the date first above written.
,I)EVELOPCR_ BANK. Petetedty - --3
MEETINGHOUSE COMMONS,UC STCIN liA\QBANK-A Ct)-()1'LRA't'lVE � r
BANK
I formatted:Indent;Lett: [1", �1
1_ty: By: 1langing; .. K
Thomas D.Aihorniko i Deleted: SAI I.:a FM
frtilU`l 5iyi;nl:Cr� --. _ l SAVINGS j
its: Manager Its: tionior Vice President --��
Deleted:Murk 11.1 IT
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'1112is A cvuijem,is appTov L�N-lorti j)jiljg.,�&.jjj it, c�)j anct;wilh llarap,ph 17 yhove:-- _gr kc ti, A.
1410 Ll�f —L tiG AGENT:
COMMONWRAErH OF MASSACHUSETTS
Essax,as
uu 2111"
On this day of June- 00% NIO-re- 111C U11(leTSignod notary])ublic, personally Wetedz ig
appeared Tlionms-L. oruikO, Proved to me through satisfactory evidence,-of Identification,
which was H driver's license, '- personally known to me, or I- personally known to 3 r" party
witness personally known to me, to be the person whose stance is signed on the preceding Or
'IlLachut document,and acknowledged to ino lhat he signed it voluntarily for its stated purpose as
Manager, for Muffin house Commons, 1,LC,a limited liability company.
Notary Public
COMMONWEALTH OF MASSACHUSETTS
ss
On this day Of LtLjlc. Mum me, the undersigned 110IRTY I)LR)IiC, PCUSLIffiffly 1 WUW: 21M
aPIVared—im-LO S-Ruic proved to nit through satisfaclory evidence of identification,which was
I driver's license, H personally known to inc, of
personally known to 3 patty witness
pmonally Inown to me, to be IM IlerS01, W1010 ll,'Llllc il, signed (.. 1ho pmeding o, led
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document,and acknowledged to nic that he signed it voluntarily for iK slated purpose as, Scitior
Kkc—(! PT-qsi—dM for Stunchanillank-A Co-t Umcrmive Bank, Deietedt
Notary Public
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TOWN OF NORTH ANDOVlilt ZONING BOARD OF APPEALS
We,the undersigned,being the majority of the Zoning;13oard of Appeals of tho Town of
North Andover,hereby cord fy Ihat at,a III e(ting held on,1 un1.,21)05,the Zoning B our-do-f Lnoteted;
Appeals voted to become the holder of the forgoing;affordable housing restriction For each f the
Affordable Units nil behalf of the Town of North Andover for the Meetinghouse Commons
Comprehensive Permit Project pursuant to M.C1.L c.184,sec, 32 and as contemplated in
Paragraph 15 of this Regulatory Agreement.
Town of North Andover, j
By and throngh its Zoning Board of
Appeals
By,.
By:
By;
By:
By;
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COMMONWEALTH OF MASSACHUSETI'S
Essex,ss
On this _ day of .dung, 2005, before nee, the undersigned notary public, personally
appeared as a member of 11w North Andover%urting Board of Appeals, proved
to Inc through satisfactory evidence of identification, which was J driver's license,'.,persomilly
known to me, or U personally known to Tj party witness personally known to me, to he the
person whose name is signed on the preceding or attached doouniant, and acknowledged to the
that fielshe signed it volunlarily for its stated purpose as members of the Town of North Andover
Zoning Board or Appeals.
Notary Public u
COMMONWEALTH OF MASSACHUSETTS
hssex,ss
On this _ day of ,lum, 2(I(15, before inc, the undersigned ncrlary public, person-illy Deleted:jAuuy
appeared ,as a member of the North Andover Zoning Board of Appeals, proved — --to me through satisfactory evidence of identification,which was I I driver's license,.-I personally
known to iue, or n personally known to 3"1 party witness personally known to ate, to ho the
person whose name is signnc( on the preceding or attached documorij, and acknowledged to me
that he/she signed it volu:rtarily for its stated pul-pose as members of t}te Town of North Andover
Zoning Board of Appeals.
Notary Public
COMMONWEALTH OF MASSACHUSETTS
Essex,ss
Ott this — day of jgvt , 2005, bel'ore ate, the undersigned notary public, persomally `n t a::,nuAry 1
appeared ,as a nienlber of tltc North Andover'Zoning Board of Appeals, proved
to me through satisfactory evidence of identification,which was J driver's license,I..,personally
known to me, or '— personally known to Yd party witness personally known to me, to be the
person whose name is signed on the preceding or attached docunrcni, and acknowledged to me
that he/she signed it vnlunlarily for its slated purpose as members of the Town of North Andover
Zoning Board of Appeals,
Notary Public
l 1.
i
COMMONWEAI.XH OF MASSACflUSVI-I'S
Essex,ss
On this _ day of lun+2005, before me, the undersigned 3
notary public, personally
oeleled: :n
l ' _ `_ 1 our•
appeared ,as a member of the North Andover Zoning Board of Appeals, proved
to me through satisfactory evidence of identification,which was 11 driver's license,1-1 personally
known to me, or f1 personally known to 3"' party witness personally known to me, to he the
person whose name is signed on the preceding or aviched document, and acknowledged to me
that he/she signed it voluntarily for its stated purpose as members cif the Town of North Andover
Zoning Board of Appeals.
Notary Public
COMMONWEALTH OF MASSACH US ETTS
Essex,ss
On this day of ,ttit�t�, 2005, bekire me, the undersigned notary public, personally (t�eteted: „
appeared ,as a member of the North Andover Zoning Board of Appeals, proved
to me through salisfactory evidence of identificalion,which was I driver's license,I I personally,
known to me, or LJ personally known to 3'd parly witness personally known to me, to be the
person whose name is signed on the preceding or allached document, ,end acknowledged to me
that he/she signed it voluntarily for its stated purpose us members of the Town(if North Andover
Zoning Board of Appeals.
Notary Purl is f-
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1MXIIIBIT A
LEGAL DESCRIPTION
The land, wish any buildings Ihurcon, situated in North Andover, Essex County, Massachusetts,
and being shown as Lot A on a plan entitled'` of I,anet, project: Meetinghouse Commons at
Plan
Smolak Farm, North Andover, Massachusetts, MITI' Dcsign Consultants, Inc., Kngineers-
Planners-Surveyors, 103 Stiles Road,Suite One, Salcm, New Hampshire 03079, Scale; I"=801,
Date July 20,2001",which plan is recorded with the Essex North Registry of Deeds as Plan No.
1.1828. Lot A on said plan including a portion of the area shown on said plan as"Map Parcel
104C Lot 31" and also including arm shown on Said plan a5 "Map Parcel 104C Lot 28" and
..Area I".
Sultjcct to and with Ihu benefit of all easements, rights, covenants and restrictions of record or
existing at law,to the extent valid and legally enforceable.
For title see deed of Sniolak Farms Really,LLC to Meetinghouse Commons,LLC dated July 20,
2004,recorded with Essex Nortlt Registry of Deeds at Book 4941,Page 220.
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EXHIBIT B
DEED RIDER
For
MUM New England Fund
OMICrship Prnjcct
(,annexed to and made part of that ce lain deed(the"Deed")
From Mectin eh€€use Commons,LLC ("Grantor")
TO ("Crantce")
Dated 200
WITNESSE"t'H:
WHEREAS,a comprehensive permit for land in the CitylTown of North Andover,
Massachusetts has been granted fly the Town of North Andover,by and through its Zoning
Board of Appeals(the"Municipality")under Chapter 4013 of M.G.L.for the purpose for
constructing L8 residential units(the`Project")comprised of'66 units to be sold by the Grantor
at€arket rates,22 units to be sold to households with low and ioderate incomes in accordancc
with the terms and provision of the Ragultltory Agreement by and between Meetinghouse
Commons, LLC(the"Doyeloper")and 5loliClUn7BOILk -A Co—Inaxiotivg Bank(tire"Bank"),as Deleted:�alllii I;1" L4 ��'1lIL, �!
part of the New England Fund Prograin(the"Regulatory Agreernuni")which Regulatory
Agreement is dated Juiic, ,2005 and is recorded/tiled with the hssex North District Registry of netnted_"iro,y. ---�
Deeds(the"Regis(ry")in Book at Page - -- —
WHEREAS,the rights and restrictions granted in this Rider 10 the Municipality serve lire
public's interest in the creation and retention of affordable housing for persons and families of
low and moderate income and in the restricting the resale price of property in order to assure its
affordahilily by future low and Moderate income purchasers;
WHEREAS,pursuant to lice Regulatory Agreement,eligible purchasers such as the
Grantee are given ale opportunity to purchase certain property at an ai'1'ordable price if the
purchaser agrees to convey the properly till resale to an eligible purchaser located by the
]Municipality or,to the Municipality, for a"Maximum Resale Price'as specified in this Rider
and in the Regulatory Agreetnenl;
WHEREAS,the Grantor and the Oranlee are participating in the NFF Program,and in
accordance with the NEF Program the Grantor is conveying that certain real property more
particularly described in the Deed to which this Deed Rider is attached("Pr(iperty")to the
Granice at a consideration which is less than the appraised value cif the Property;and
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` [�Q
�,7r����
p i�it
WHEREAS,the Maximum Resale price shall be determined as that price which is
affordable to an eligible purchaser whose income does not exceed the Base Income as described
in the Regulatory Agreemeni.
NOW T1I13REFORE,as further consideration from the Grantee to the Grantor and the
Municipality for the conveyance of the Property at tin affordable price in accordance with the
Regulatory Agreement,the Grantee,his/her heirs,successors and assigns,agrees that the
Property Shall he subject to the following rights and restrictions which are imposed for the
benefil of and shall be enforecable by,the Grantor's assignees acid designees,or the Monitoring
Agent,or the Municipality,acting by and through its coning board of appeals.
It, Riahl ul'Fiist Refusal, (a) When the Grantee or any successor in title to the
Grantee shall desire to sell,dispose of or otherwise convey the Properly,or any portion thereof,
the Grantee shall first notify the Monitoring Agent and subsequently the Municipality in writing
of'the Grantee's intention to so convey the Property(the"Notice"). The Notice shall set forth
the Maximum Resale Price of th❑Property and shall advise the Municipalily of a ninety('ill)day
right of first refusal in favor of the Municipality. The Maximum Resale Price is equal to the
amount which is affordable to an eligible purchaser whose income does not excecd the Base
Income as defined in the Regulatory Agreement. Within sixty(60)days of the giving of the
Notice by the Orantec,the Municipality shall notify the Grantec in writing;as to whether the
Municipality is proceeding to locate an eligible purchaser of the Property or the Municipality
shall exercise its right of first refusal to purchase the Property(the"Municipality's Notice"), For
the purpose or the Deed Rider,an"eligible purchaser"shall mean a purchaser whose household
income does not exceed the Bane Incorac its defined in the Regulatory Ag T"mem,and who,if
located by the Municipality,is ready and willing to purchase the Property within ninety(90)days
after the Grantee gives the Notice.
(h) In the event that(i)the Municipality's Notice states that the Municipality
does not intend to proceed to locate an eligible purchaser and that(lie Municipality does not
intend to exercise its right of first refusal to purchase the Property,or the Municipality fails to
give the Municipality's Notice within sixty(60)days, the Grantee must use diligent efforts to
find an eligible purchaser within a one hundred twenty(120)day period from the dale the
Property is put on the market,as determined by the(late of the first advertisement for sale,as set
forth below. The term"diligent efforts"'shall mean(A)the placement of an advertisement in the
real estate section of at least one(1)newspaper of general circulation for a period of three(3)
consecutive weeks which sets forth a customary descriplion of the unit for sale,a single price
which in not in excess of the Maximum Resale Price,Grantee's telephone number,and the
phrase; "Sale of unit subject to certain guidellnes and restrictions 1401 respeel to the
maintenance and retention gfuff trdable housing;far livrr.seholds ref low and moderale lucome,"
and(B)the receipt of satisfactory evidence that the ticw purchaser qualifies as un eligible
purchaser. Ir the Grantee is unable to locate an eligible purchaser within one hundred twenty
(120)days from the dale the Property is put on the ittarkel,the Grantee may convey the Properly
to any third party,regardless of income,who may or may not qualify as an eligible purchaser
("Ineligible Purchaser"),at an amount that does not exceed the Maximum Resale Price. Upon
request of the unit owner or grantee,the Municipality,acting by and through its Ymning;Board of
Appeals or its designee,shall issue to the unit owner or a third party a certificate in recordable
form(the"Compliance Certificate")staling that the Municipality has elected not to exercise its
lS
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right of first refusal hereunder. This Cotnplianu C;urli ficate maybe be recorded in the appropriute
Registry of Deeds or registered with the appropriate Registry District of the Land Court and such
Compliance Certificate may be relied upon by the then owner of the Property anti by third
parties, The Property sold to an Ineligible Purchaser shall lie subject to the continuing
obligations unit restrictions contained in lhis(Iced rider,so that when the Property is resold by
the Ineligible Purchaser,the sale procedure outlined above most be followed by the selling
Ineligible Purchaser,with the right of first refusal stated above still uxisling and the restriction of
the sale being to an eligible purchaser. The deed to The Ineligible Purchaser shall clearly state
that The Property it bcirig conveyed subject to this deed rider.
(c) In cite event the Municipality,within said sixty(W)day period,notifies
the Grantee that the Municipality is proceeding to locate an eligible purchaser or that the
Municipality shall exercise the Municipality's right of first refusal to purchase the Property(the
"Municipality's Notice"),the Municipality may ]ne:atu an eligible purchaser,who shall purchase
the Properly at a price not in excess of the Maximum Resale Price subject to a Deed Rider,
within ninety(90)days of the date that the Notice:is given or such further time as reasonably
requested to arrange for details of the cloying,or the Municipality may purchase the Property
Itself at it price not in excess of The Maximum Resale Price within ninety(90)days of the dale:
thin the Notice is given or such further time as reasonably requested to arrange for details of the
closing,provided that the Municipality has timely provided the Municipality's Notice. If more
than one(1)eligible purchaser is located by the Municipality,the Municipality shall conduct a
lottery or other like procedure to determine:which eligible purchaser shall he entitled to the
conveyance of the Property.
(d) If an eligible purchaser is selected to purchase the,Property,or if the
Municipality elects to purchase the Properly,the Property shall be conveyed by the Grantee to
such eligible purchaser or to the Municipality as the case may be,by a good and sufficient
quitclaim deed conveying a good and clear record and marketable title to the Property free from
all encumbrances except(i)such taxes for the then current year as are not duc and payable;oil the
date of delivery of the deed,(ii)any lien for municipal betterments assessed after the date of the
Notice,(iii)provisions of local building and zoning laws,(iv)all easements,restrictions,
covenants and agreements of record specified in the Deed from the Grantor to Grantee,(v)the
Regulatory Agreement which cannot be amended without the consent of the Monitoring Agent
and Lining Hoard of Appeals,(vi)such additional easements,restrictions,covenants and
agreements of record as the Municipality and the Monitoring Agent consent to,such consent not
to be unreasonably withheld or delayed,and(vii)in the event that the Property is conveyed to an
eligible purchaser,a Deed Rider satisfactory in form and substance to the Monitoring Agent
which the Grantee agrees to annex to said deed.
(c) Said deed shall be delivered and the purchase price paid(the"Closing")at
dic Registry,or at the option of the eligible purchaser(or the Municipality,as the ease may be,if
the Municipality is purchasing the Property),exercised by written notice to the Grantee at least
five(5)days prior to the delivery of the deed,at such outer place as the eligible purchaser(or the
Municipality,as the case may be,if the Municipality is purchasing the Property),may designate
in said notice. The Closing shall occur at such time and on such date as shall he specified in a
written notice from the eligible purchaser(or the Municipality,as the case may be,if the
Municipality is purchasing the Property)to the Grantee,which date shall be at least live(5)days
16
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alter ti►e date on which such notice is given,and if the eligible purchaser is a purchaser located
by the Municipality,or if the Mmkipality is purchasing the Property no later than Ilse end of the
time period spcciUed in subsection(a)above,
(f) To enable Grantee tar make conveyance as provided in this Deed hider,
Grantee may if lielsilo so desires at the lime.of delivery of the(Iced, use the purchase money or
tiny portion thereof to clear the title of miy or all encumbrances or interests;all instruments s(►
procured to he recorded simultaneously with tic delivery of said dee(L 1
(l;) Water and sewer charges and taxes for tile then current tax period shall he
apportioned and fuel value and any common areas charges or association fees,Wally,shall be
adjusted as of the date of Closing and Ike,net amount thercol'shatl be added to or deducted from,
as the case may be,the purchase price payable by the eligible purchaser or by the Municipality.
(h) Pull possession of tile,Property free front all occupails is to he delivered at
the I itne of the Closing,the Property to he then in the Same cOnclition as it is in on the date of the
Grantee's Notice,reasonable wear and tear only excepted.
(i) If Grantee Shall be final?le to give;lit le or to make conveyance as above
stipulated,or if any change ofcondilion in the Property not included in the above exception shall
occur,then the C108111g shall be extended for up to thirty(30)days and Grmleo shall remove any
detect in title or restore the Proprrly to the condition required by this Deed Rider, The Grantee
shall use hest efforts to remove any such defects in the title whether voluntary or involuntary and
to restore the Property to the extent perrmillcd by insurance proceeds or condemnation award.
The eligible purchaser(or the Municipality,as the case may he,if the Municipality is purchasing
the Property)shall have the election,at either the original Or any extended time for performance,
to accept such title as the Grantee can deliver la the Property in its then condition and to pay
therefore the purchase price without deduction,in which case the Grantee shall convey sueh title,
except thal in the event of such conveyance in accordance with Ilse provisions of this clause,if
the Property shall have been taken by a public authority,Then the Grantee shall,tulles~[lie
Grantee has previously restored the Property to its former condition,either:
(i) pay over or assign la the eligible purchaser or the Municipality,as
the case may be,on delivery of the deed,till amounts recovered or
recoverable nn account Of SUCh inSUrtlnCo Or conde►nnation award
less any amounts reasonably expended by the Grantee for the
partial restoration,or
(ii) if a holder of a mortgage on the Properly shall not permit the
insurance proceeds or the condemnation award or part thereof to be
used to restore the Properly to its former condition Or to be so paid
over or assigned,give to the eligible purchaser or to the
Municipality,as[lie case may be,a credit against the purchase
price,oil delivery of the deed,equal to said amounts so retained by
the holder of the said morlhage less any amounts reasonably
expended by the Grain"for any partial restoration.
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(�) If the Municipality fails to locate an eligible purchaser who purchases the
Property within ninety(90)days(with any requested additional time for closing details as
provided in subsection(a)above)after the Notice is liven,and the Municipality flocs not
purchase the Properly during said period,the Grantee may convey the Property to any third
party,regardless of ittcorrte,who may or may not qualify as an eligible purchaser("Ineligible
Purchaser"),at an amount that does not exceed the Maximum Resale Price. Upon request oftho
unit owner or grantee,the Municipality,acting by and through its Toning Board of Appeals or its
designee,shall issue to the.unit owner or a third party a certificate in recordable form(the
"Compliance Certificate")stating that the Municipality has elected not to exercise Its right of
first refusal hereunder. This Compliance Cerlilicate may be recorded in the appropriate Registry
of Deeds or registered with the appropriate Registry District of the Land Court and such j
Compliance Ccrtificaic may be relied upon by the then owner of the Property and by third
parties. The Property sold to an Ineligible Purchaser shall be subject to the continuing
obligations and restrictions contained in ibis deed rider,so that when the Property is resold by
the Ineligible Purchaser,the sate procedure outlined above must he followed by the tielling
Ineligible Purchaser,with the right of Grsl refusal stated above still existing and the restriction of
the sale being to an eligible purchaser. The deed to the Ineligible Purchaser shall clearly state
that the Properly is being conveyed subject to this dead rider. Moreover, upon the death of the
owner of an Affordable Unit who is an Ineligible Purchaser,the Monitoring Agent(with the
consent of the Zoning Board of Appeals)Shall determine whether said Affordable 11nit must be
conveyed or transferred,consistent with current DHC,D policy and practice,and if such
conveyance or transfer is required,than it shall be occur only if it is in compliance with
applicable fair housing laws and other applicable laws.
1 Resale and Transfer Restricilons. lixcupt as otherwise staled in this Agreement,
the Properly or any interest therein,shall not at any time be sold by the Grantee,the Grantee's
sucrossors and assigns,and no attempted sale shall he valid,unless such sale or conveyance
complies with tide following requirements:
(a) the aggregate value of all consideration and payments of every kind given
or paid by the eligible purchaser(as localed and defined in accordance with Section 1 above)or
the Municipality,as the case may be,to the then owner of ilia Properly for and in connection
with the transfer of such Property,prior to customary closing adjustments for fuel,taxes,or
similar items,shall not be in excess of thu Maximum Resale Price for the Property. If the
Property is conveyed to an eligible purchaser,a certificate(the"Eligible Purchaser Certificate")
shall be oblained and recorded,signed and acknowledged by the Monitoring Agent which
Eligible.Purchaser Certificate shall tcfcr to the Property,the C;rantee,the eligible purchaser
thereof and the Maximurn Rauie Price therefore,and slate that the proposed conveyance,sale or
lndnsfer of the Property to the eligible purchaser is in compliance with the Deed hider and the
Regulatory Agreement. 'There also shall be re orded a new Deed Rider executed by the eligible
purchaser.The Ltligiblc Purchaser Certificate shall certify that the new Deed Rider is satisfactory
in forth and substance to the Monitoring Agent. if the Properly is conveyed to the Municipality,
a Certificate(the"Municipality Purchaser Certificate")shall be obtained from the Monitoring
Agent and signed and acknowledged by the Municipality and the Monitoring Agent and recorded
with the Rcgislry of Deeds,which Municipal Purchaser Certific:aic shall refer to the Property,the
Grantee,the Municipality,the Maximum Resatc Price and state that the proposed conveyance,
lft
sale or transfer of the Property to the Municipality is in compliance with the rlghts,restrictions,
covenants and agreements conloincd in this Deed hider. 'Chen also shall be recorded a new
Deed Rider which Deed Rider stall hu satisfactory in form and substance to the Monitoring
Agent. If the Property is conveyed to a third party in accordance with Section 1,the Monitoring
Agent shall execute and deliver an acceptance of the Compliance Certificate in accordance with
Suction 1;or,
(b) pursuant to Sections t(b)or LO),the Municipality,acting by and through
its Zoning Board of Appeals or its designee,executes and delivers a Compliance Certificate as
desCribCd in Section l(b)or SWion 16)for recording with the appropriate registry of deeds or
registry district.
(c) Any good faith purchaser of the Property,any IcTldOr or other party tatting
a security interest in such Property and any otter third party may rely upon it Compliance
Certificate or an EIigible Purchaser Certificate or a Municipal Purchaser Certificate referring 10
the Property as u0aelusive evidence of the matter,,stated therein and may record such Certificate
in connection with conveyance of the Properly,provided.in the ease of an Eligible Purchaser
Certificate and a Municipal Purchaser Certificate the consideration recited in the deed or other
instrument conveying the Properly upon such resale shall not he greater than the maximum
permitted price stated in the Eligible Purchaser Certificate or the Municipal Purchaser Certificate
as the case may he. If the PrnpUly is conveyed to the Municipality,any future sale of the
Property by the Municipality shall he subject' to the Regulatory Agreement anal the Deed from
the Municipality shall contain a Deed bider in form and substance satisfactory to the Monitoring
Agent together with an Eligible Purchaser Certificate from.the Monitoring Agent.
(d) Wilhin ten(10)days of the closing of tie conveyance of the Property from
Grantor to Grantee,the Grantee shall deliver to the Monitoring,Agent and to the Municipality a
true and certified copy of the deed or the Property,together with information as to the place of
recording thereof in the public records, Failure of the Grantee,or Grantee's successors or
assigns to comply with the preceding senletwe shall not affect the validity of such conveyance,
(e) Notwithstanding anything to the contrary contained in this Deed Rider,the
Maximum Resale Price shall not be less than the purchase price paid by the Grantee which at the
time of purchase complied with the requirements of the preceding deed rider and of the
Regulatory Agreement and which is rec:iled in an Eligible Purchaser C:erlilicate or a Municipal
Purchaser Certificate or recorded/filed with the Registry plus the costs of approved capital
improvements and marketing expertseS,as determined by the Monitoring Agent.
(f) The Grantee understands and agrees that nothing in this Deed Rider or the
Regulatory Agreement in any way constitutes a promise or guarantee by the Municipality,the
Monitoring Agent or any other person or entity that the Grantee shall actually receive the
Maximum Resale Price for the Property or any other prize;for the Property.
3. R.e.strictions Against Leasing. d Jnnior Fncumbrances. The Property shall not be
leased,refinanced,encumbered(voluntarily or 01.11Owise)or mortgaged without the prior written
consent of the Monitoring Agent,provided,however,that this provision shall not apply to n first
murigupe granted in connection with this conveyance for a principal amount less than the price
19
approved by the Monitoring Agont in the Elig1hle Purchaser Certificate,or the Municipal
Purchase Certificate. Any rents,profits,or proceeds Got)any transaction which has not received
the prior written consent(if the Monitoring Agent shall be paid to and be the property of the
Municipality for deposit into a fund for affordable housing. In the event that the Monitoring
Agent,in the exercise of its absolute discretion,consents to any such lease,refinancing,
c ncurnbrancc or mortgage,it shall be a condition to such consent that all rents.profits or
proceeds from such transaction which exceed the carrying costs of the Property as determined by
the Monitoring Agent in its sole discretion shall be paid to and he the property of the
Municipality for deposit into a fund for affordable housing. Notwithstanding the restrictions
outlined in this paragraph,any Properly purchased by the Municipality,under its Right of first
Refusal,may be rented by the Municipality,at its discretion,so long as the incnnte limits for the
lessee household do not exceed the fuse Income as defined in the Regulatory Agreement, }Funds
received by a Municipality under this paragraph shall be deposited in an affordable housing fund
to be expended by the Municipality for the purposes of encouraging,creating or subsidizing file
construction or rehabilitation of affordable housing elsewhere in the Municipality.
4. Rights of Mortg_a sex, (a) Notwithstanding anything in this Agreement and the
Regulatory Agreement to the contrary, but subject to the next succeeding paragraph hereof,if the
holder of record of a first mortgage granted to a state or national bank,state:or federal savings
and loin association,cooperative bank,mortgage company,trust company,insurance company
or other institutional lender or its successors or assigns(other than the Grantee or any person
related to the Grantee by blood,adoption,or marriage(any of the foregoing,a"Related Party"))
shall actiuire the Property by reason of foreclosure or similar remedial action under the
provisions of such mortgage or upon cottveyancc of the Property in lieu of foreclosure,Provided
that the holder of such mortgage has given the Monitoring Agent and the Municifstlity not less
than sixty(60)days prior written notice of Its intent ton to foreclose upon its mortgage or to
accept a conveyance of the PrOperty in lieu Of foreclosure,and pLoyvided further that the principal
amount secured by such mortgage did not exceed one hundred perwilt(100%)of the Maximum
Resale Price calculated at the time of the granting of the mortgage(the"Permitted
Indebtedness"),then the rights and restrictions contained herein and in the Regulatory
Agreement shall not apply to such holder upon such acquisition or the Property,any purchaser
(other than an Interested Party)of the Property at a foreclosure sale conducted by such holder,or
any purchaser(other than a Related Party)of the Property from such holder,and such Property
shall thereupon and thereafter be free from all such rights and restrictions contained herein and in
the Regulatory Agreement. The holder of Permitted Indebtedness is referred to herein as a
"Permitted Mortgages."
(b) In the event such Permitted Mortgagee conducts a foreclosure or other proceeding
enforcing its rights under such mortgage and the Property is sohl for a price in excess of the
greater of(1)the sum of the Outstanding principal balance of file note swcared by such mortgage
plus all future advances,accrued interest and all reasonable costs and expenses which the
Permitted Mortgagee is entitled to recover pursuant to the terms or the rrrortgage(the"Mortgage
Satisfaction Amount"),and(5)the Maximum Resale Price,such excess shall be paid to the
Municipality in consideration of the lass of the Property as affordable housing,and il'necessary,
alter a final judicial determination that the Municipality is entitled to such excess,the costs of
such determination lobe deducted from the excess prior to payment to the Municipality. To the
extent the grantee possesses any interest in any amount which would olherwific he payable to the
20
Municipality under this paragraph, to the fullest extent permissible:by law,the Grantee hereby
assigns its interest ill such 41nount to such holder for payment to the Municipality. In order to
determine the Maximum Resale Price of the Property at the time of foreclosure or other
proceeding,the Municipality shall cunstth,with the,Monitoring;Agent,anti dic:Maximum Resale
Price shall let:equal to the price as determined by the Monitoring Agent under the definitions set
forth in Section 1 of this Rider, Funds received by a Mtinicipalily under this paragraph shall he
deposited in an affordable housing fund to be expended by the Municipality for the purposes of
encouraging,creating;or subsidizing the construction or rehabilitation of affordable housing,
elsewhere in the Municipality.
(c:) A Permitted Mortgagee shall notify the Mnniloring Agent and the Municipality in
the event of any default for which the Permitted Mortgagee intends to commence foreclosure
prowdings,which notice shall be sent to the Monitoring;Agent and the Municipality as set forth
in Section G of this Deed Ridcr. No failure to notify the Monitoring Agent and the Municipality
pursuant to the previous sentence shall impair the validity of rite foreclosure.
(d) IN Grantee grants to the Municipality the right and uption to purchase the
Property upon receipt by the Municipality of notice in any form (including notice by newspaper
publication deemed to be received on the date of publication)of an impending foreclosure
against the Property. In the event the Municipality intends to exercise its option,the
Municipality shall purchase the Property at a price equal to the greater of the Maximum Resale
Price or the Mortgage Satisfaction Amount within sixty(60)days after receipt Of such notice.
The(Iced to the Municipality shall include a deed rider containing all of the rights and
restrictions set forth in this heed Rider and otherwise satisfactory in form and substance to the
Monitoring Agent which the Municipality,as a condition to such purchase,agrees to annex to
said deed, Any excess received by the Permitted Mortgagee over the Mortgage Satisfaction
Amount shall be paid to the Grantoe(provided,that in the event that such excess paid shall be so
Maid to the Grantee,the Grantee shall thereafter indemnify such Permitted Mortgagee against
loss or damage to such Permitted Mortgagee resulting from any claim made by any other party to
the extent that such claim is based upon payment of such excess by such Pertnilled Mortgagee to
the Grantee in accordance herewith,provided that such Permitted Mortgagee shall give the
Grantee prompt notice of any such claim and shall not ohicci to intervention by the Grantee in
any proceeding relating thereto).
5. Covenants to Run With the P o erty. (a) The Grantor anti the Grantee, for good
anti valuable consideration,the receipt and sufficiency of which is acknowledged,grant and
assign to the Municipality,the Municipality's agents,successors,designees and assigns the right
of first refusal to purchase the Property as Set forth in this Deed Rider,and to the Monitoring
Agent and the Municipality the right to enforce the rights and restrictions,covenants and
agreements set forth in this Dccd Rider. The Grantor and the Graulcc grant to the Monitoring
Agent and the Municipality the right to enter upon the Pruperly for the purpose of enforcing any
and all restrictions,covenants and agreements contained in this Deed Rider,and of,taking all
actions with respect to the Property which the Monitoring Agent and/or Municipality may
determine to be acces ary or appropriate,with our without court order,to prevent,remedy or
abate any violation of the restrictions,covenants and agreements set forth in this Deed Rider.
The rights granted to the Monitoring Agent and the Municipality shall be in addition to and not
in limitation of any other rights and remedies available to the Grantor or the Monitoring Agent or
21
to the Municipality for enforcement of the restrictions,rights,covenanls and agreements set forth
in this Deed Rider.The Monitoring Agent shall he entitled to a fee of three-fourths of one
percent of the Maximum resale Price of the Property to the Municipality or an eligible purchaser
or an ineligible purchaser in accordance with the provisions of this Deed hider and the
Regulatory Agreement for the services performed according to the Monitoring Services
Agreement(and referenced in the Regulatory Agreement). This fee shall be paid by cite Graluec
as a closing cast at the time of closing,and payment of tite fee of the Monitoring Agent shall be a
condition to delivery and recording of its certificate,failing which lite Monitoring Agent shall
have a claim against [lie Grantee and persons claiming under the grantee for whicit the
Monitoring Agency may seek an attachment against the Properly.
(b) This Deed hider and all of the covenants,agreements and restrictions
contained herein shall be deemed to be an affordable housing restriction as that term is defined in
G.L.c. 184,§31 and as that term is used in G.L.c.184,§26,31,32 and 33 and which shall be in
perpetuity as defined in the Comprehensive Permit Decision,dated May 24,2002,as amended
and as the same may he amended from time to time 0lie"Comprehensive Permit Decision"),
unless one of the lbilowing events occur:(i)the recording of ati Filgible Purchaser Certificate,
which includes a new(iced rider Math in a form and substance satisfactory to the Municipality,
(ii)upon the conveyance of the Property its the Municipality.and the recording of a Municipal
Purchaser Certificate in a form and substance satisfactory or as otherwise permitted by this deed
rider or as otherwise permitted by law;or,(iii)upon the acxluisition of the Property by reason of
rureclosure or similar remedial aQtion under the provisions of such mortgage or upon conveyance
of the Property in lief[of foreclosure in accordance with Paragraph 4 above(collectively, the
"Terra"). This Deed hider is made for the benefit of the Municipality,and the Municipality shalt
be deemed to be the holder of the affordable housing restriction created by this Deed Rider. The
Municipality has detenrrined that the acquiring of such affordable housing restriction is in the
public interest. Further,the Resale Restrictions contained in this Heed Rider which shall
encumber each of the Affordable Units at the Project l shall also constitute an affordable housing
restriction its that term is defined in G.L.c, 184,§31 an([as that term is used in 0.1—c. 184,§§
26,31,32,and 33 which shall be in perpetuity.subject to conditions described in this Deed
Rider. Such Resale Restrictions shall he for the benefit of the Municipality and the Municipality
shall be deemed to be the holden(if the affordable housing restriction created by the Resale
Restrictions its each crf the Deed Riders. The Municipality has determined that the acquiring of
such affordable housing restriction is in the public interest. To the extent that the Municipality is
the holster of the Resale.Restrictions its be contained in each of the Deed Riders,the Director of
DHCD by the execution of the Certificate of Approval attached to and made a part of the
Regulatory Agreement hereby approves such Resale Restrictions in each of the Deed Riders for
the Affordable Units of the Project as required by the provisions of(M..c. 184,§32.
(c) The Granlec intends,declares and covenants oat behalf of itself and its
successors and assigns(i)that this Deed Ritter and the covenants,agreements,rights and
restrictions contained in this Deed Ritter shall be and are covenants running with the land,
encumbering the Property for the terns of[his Deed Rider,and are binding upon the Grantee's
Successors in title,(H)are not merely personal covenants of the Graniee,and(iii)shall bind the
Grantee,its successors and assigns and enure to the benefil of the Municipality,the Monitoring
Agent,and their successors and assigns for the Term ot'the Deed hider. Grantee agrees that any
and all requirements of the laws of the Commonwealth of Massachusetts to be satisfied in order
22
for Ilse provisions of this Deed Rider to constilutc restrictions and covenants running with the
land shall be deemed to be satisfied in full and that any requirements of privily of estate are also i
deemed to be satisfied ill full.
(d) Without limitation on any other rights or rcrnedies of the Grantor,the
Monitoring Agent,the Municipality,their agents,successors,designees and assigns,any sale or
other transfer or conveyance of the Properly in violation of the provisions of this Reed Rider,
shall,to the maximum extent permitted by law,be voidable by the Municipality or the
Monitoring Agent,or their agents,successors,designees and assigns by suit in quily to enforce
such rights, restrictions,covenanls,and agrceniews.
(e) Notwithstanding any other provision in this Deed Rider, after the end of
the Term(the"Termination Date'),the then owner of the Property then subject to this Deed
Rider may sell the Properly at a price equal It)the fair market value of the Property as of the date
of sale and not subject to this Deal Rider,provided,however that the owner,at the time of such
sale must pay to the Municipality thu difference.between the fair market value as so determined
and the Maximum Resale Price which the owner could realize in a sale loan Eligible purchaser
were this Deed Rider to have remained in effect,and upon such payment the Property will be
deeded free and clear of this Deed Rider. In the event of any failure of any owner to make a
payment under this faced hider the Municipality shttll have tllc right to seek payment from the
Purchaser of the Property,and his/her successors and assigns,which right shall be prior to the
encumbrance of any mortgage upon the Properly, The owner of[tic Property after the
Termination Date shall have the right to make a payment by refinancing or from other sources in
the same amount to Ibe Municipality as the Municipality would receive were this Deed Rider to
have remained in effect in the event of a sale at lair market value on the[late of payment after the
Termination Rate,wid in the event 01'such payment the owner shall hold the Property tree and
clear(if I his Deed Rider. The provisions of this paragraph shall survive the expiratiam of the
term of this Deed hider.
6. Notice. Any notices,demands or requests that may be given under this Deed
Rider shall he sufficiently served if given in writing;and delivered by hand or mailed by certified
or registered mail,postage prepaid,return receipt requesled,to the parlics at the addresses set
forth below,or such other addresses as may be Specified by any party by such notice.
Municipality: North Andover zoning Board of Appeals
400 Osgood Street
North Andover,Massachusetts 01845
Attention: Chairperson
Grantor: Meetinghouse Cornntons,LLC
121 Carter Field Road
North Andover, Massachusetts 01845
Attn: Thomas D.%alutruiko, Manager
23
Grantee;
Matti#€grin Agent: Citizens Housing and Planning Association,Inc.
18 Trutnont Street
Boston,Massachusetts 02108
Any such notice,demand or request shall he deemed to have:been given on the day it is hand
delivered or mailed.
7. further Assurances. The Grantee agrees from time to time,as may be reasonably
required by the Monitoring Agent or the 11Municiltal ily,to furnish lire Monitoring Agent and the
Municipality with a written statenlertt,signed and,if requesled,acknowledged,setting forlh the
condition and occupancy of the Property, i 001`n3ation concerning the resale of the Property an{I
all other information petlaining to the Property or the Grantee's eligibility For and conformance
Witt)the Regulatory Agreement for this Project.
8, Waiver, Nothing contained in this Dccd Rider shall limit the rights of the
Monitoring Agent ant]/or the Muniuipalily to release or waive,from time to time,in whole or in
party,any of the rights, restrictions,covenant.,or agreements canlained in this Deed Rider with
respect to the Proputly. Any such release or waiver roust hu made in willing and must be
executed by the Monitoring Agent and/or thu Municipality or designee,
9. Severabilily, If any provisions of this Deed Rider or the application thereof to
any person or eircutustancc shall come,to any extent,to be invalid or uncal'oTceable,the
rumainder of this Deed Rider or the application of such provision to the persons or circumstances
Other than those-,is to which it is held invalid or unenforceable,shall nal be affected thereby,and
e;Ich provision of this Deed Rider shall be valid and enforced to the fullest extent permitted by
law.
10. Ices onsibility ol'tile Monitoring Agent. The Monitoring Agent shall not be hot(]
liable for any action taken or omitted under this Deed rioter so long as it shall have acted in good
faith and wilhoul gross negligence.
IL Indetnnit .The(,minter and the Gritntee agree to indemnify and hold harmless the
Monitoring Age nt against all damage~,costs and liabilities,including reasonable attorney's fees,
asserted against the,Monitoring Agent by reason of its relationship with the Project under this
Deed ]cider and not involving elaitrts lhat the Monitoring Agenl acted in bad faith and with gross
negligence.
Executed as a sealed instrument this day of 200
24
GRANTOR: G RANTLE:
MEE`1INGHOUSF.COMMONS,LLC;
By: By:
Thomas D. Zahoruiko
Its;Manager j
COMMONWEALTH OF MASSAC:NUSETTS
ss
On Ibis_day of 2"10 before nie, (he utt_dcrsigned notary public, 1 Deleted: 4uz,I ra ?
personally appeared Thomas 1). Zahoruiku, proved to me thraullt satisfactory evidence of
identification,which was LI driver's license,Ll personally known to rite,or 1J personally known to
3rd party wiutcss personally known to toe, to be ttre person whose name is signed ors Iltts
preceding or attached document, and acknowledged to me that he sighed it voluntarily for its
stated purpose as Manager, for Meetin house Commons, LLC,a limited liability company.
Notary Public
COMMONWEALTH OF MASSACHUSETTS
ss
On this day of "001 before me, the undersigned notary public, i t)eteted:zsau u
personally appeared prove€! (t) me through satisfactory evidence of _....._._
identification,which was LI driver's license,H personally known to me,or fl personally known to
party witness personally known to rite, to he the person whose naitte is signed on the
preceding or attached document, and acknowledged to me than lie signed it voluntarily for its
stated purpose as Manager, for LLC,a limited liability company,
Notary public
25
CONSFNT TO REGULATORY AGREEM14NT
Re: meetinAllouse Collinion..,
(Proiccl nam6)
North Andover
(City/Town)
Meetinghouse Commons, LLC
(Project Sponsor)
The Undersigned, SloliviliII1113zillk- Co qwr!
.-_qi��qBalik, being the holder of inqrlg,age Deleted: n i we cm smagi Delete stern
the above described Project recorded with the Essex North Registry ol'Deeds in Book 9,�Q4 [.-Deleted:g,�gl
Page 24,() .hereby consents to the execution and recording;of this Agrecineill and tot the terms
and coridiii 0 iis hereof.
Sloncl mill Uzi I i h - A Co)-olicra6vc.Batik Delete& saicM I Eve k L411%
(nalne of lender)
By:
J
its 5C.11ior Vice President
COMMONWEAU114 OF MASSACHUSHl'I'S
i s-vx—
DeiJeted.
On(his day of
2005, More rite, the undersigned nolary public.
personally appeared J proved to me through satisfactoryevidence or identification, i,11,
litifiendo Deleted,
which was D driver's license, C personally known to me, or - personally known to 314 party
xvilnem personally known to mc, 11) he the pumm wl(,Se name
is Sign" on
the
preceding or
attached document, and acknowledged to me that she signed it volunlarily for its Stated purpose
'is Senior Vico President,for Storiehmutbnk -A D.
Notary Public
(It the Projccf hm more than one mortgagee,Ad ml(ljti0m1l v()nt:w forma. Excimitin of the consent form by a
morigagcu is only mcmm) if tiw n"IrIVAt 110S hCM W(Adukf prior 10 Ow Regulataty Agremnall.)
26
i
I
CONSENT TO REGU LATt]R Y AG RELMENT
Re, Meetinghouse cml.mows i
(Projec(name)
North Andover
(City/Town) 1,
Meetinghouse Commons, LLC
(Project Sponsor)
`l'he Undersigned,Smolak Farms Realty,TIC. being the holder of n morigagc on the
above described Project recorded with the Essex North Registry of Deeds in hook 8941, Page
223, hereby consents to the execution and recording of ibis Agreement and to the terms and
conditions hereof.
Smolak Farms Realty,LLC:
(name of lender)
By:
H. Michael Smolak, Jr.
its Manager
C,'OMMONWEAL'I'FT OF MASSAC'HIJSE17S
ESSEX,ss
On this _ day of Junk, 2005, before rile, the undersigned notary public, personally
appeared H. Michael Smolak, Jr,, proved to me through satisfactory evidence of identification,
which was driver's license, fl personally known to me, or Fl personally known to 3" party
witness personally known to nie, lit too the person whose name is signed on the preceding or
attached document,and acknowledged to me that he signed it voluntarily for its Staled purpose as
Manager,for Smolak Harms Realty, LLC:.
Notary Public
i
(It the Project has mare than one mortgagee,add addilional consertt forms- Execution of the crrn,;eot form by a
rnurtgagae is only necemmry if the mortgage has been tuwrded prior to the Regulatory Agtccmcm.)
27
a
HP Fax K1220xi Log for
NORTH ANDOVFR
9786889542 1
Jan 20 2005 8:46am
Last Transaction
Datei
Time T= Identification ratio Pues Result
Jan 20 8:44am Fax Sent 89783275219 t:11 3 OK
1
1 '
. J
i
E
Town of North Andover 0' ory
Office of the Zoning Board of Appeals Fr 4. q oQ
Community Development and Services Division # -
400 Osgood Street �,' n.;�•"`g
North Andover, Massachusetts 01845 �Sshc►+us3���
D. ttobert Nicettl
13rrilclii)g Commissioner Fax
t;978)688-9541
Fax (978)688-9542
I
FAX TRANSMISSION
TO-
FAX NUMBER: "I7 �<� 17
_.,
FROM: Town of North Andover
Zoning Board of Appeals
400 Osgood Street
North Andover, Massachusetts 01845
FAX: 978-688-9542
PHONE: 978-688-9541
NUMBER OF PAGES:
[SATE:
SUBJECT: c, t
REMARKS:
I
FROM; AGES NcL I)NG�..�
THIS PAGE: PL
`
FAX A; 7 7 `Y7� � l� FAX#: PHONE V ` P
Bo,ird nl'Appeals 978-08 f)541 Building 078-688-9545 Consm"Itloll 978.688-9530 Health 978-699-9540 Illii minln 978-638-95 35
Meetinghouse Commons,North Andover Page 1 of 1
Glennon, Michel
From: John Smolak Usmolak@smolakvaughan.com]
Sent: Friday, January 21, 2005 2:01 PM
To: 'Michel Glennon'
Cc: 'Thomas J. Urbelis', tzeke@comcast.net
Subject: Meetinghouse Commons, North Andover
Mich:
Attached is a copy of the final form of revised Regulatory Agreement and Deed Rider approved by the Board on
the 13t'. Also attached is a compare version of the same showing the so-called 'cleanup" items made as a result
of discussions at the meeting. The only changes to the documents include the request by Mr. Manzi to change
the word"used"to"expended" in the regulatory agreement and deed rider to clarify that excess funds can be
expended by the ZBA. Other than minor corrections/changes, the other change included separate
acknowledgements for each ZBA member and we'll arrange to get those signatures and I will provide you with the
original of the same to hold until we get the lender's signature on the document. I have also added the property
description in Exhibit A.
After I have the Applicant sign the regulatory agreement, I will proceed to gather signatures from the ZBA
members. After that, we can send the same to Salem Five for execution and then record the same. Have a
good weekend. ///John
John T. Stnolak Esq.
Smolak& Vaughan LLP
Jefferson Office Park
820 Turnpike Street, Suite 203
North Andover, Massachusetts 01845
Tel. 978,327,5220 (Main)
Tel. 978.327.5215 (Direct)
Fax 978.327.5219
E-Mail:jsmolak@SmolakVaughan.com
Web Address: wwuj.SmolakVaughan.com
This communication is intended only for the use of the individual or entity named as the addressee. It
may contain information which is privileged and/or confidential under applicable law. If you are not the
intended recipient or such recipient's employee or agent, you are hereby notified that any dissemination,
copy or disclosure of this communication is strictly prohibited. If you have received this communication
in error, please immediately notify us at(978)327-5220 or via return Internet email to
jsrnolak@stnolakvaughan.com and expunge this communication without making any copies, Thank you
for your cooperation.
1/25/05
k: OAI`2D OF AL'F'LAL.11
SMOLAK & VAUGHAN LLP
Attorneys at Law
E Jefferson Office Park
82o Turnpike Street, Suite 203
North Andover,Massachusetts 01845
Telephone 978-327-5220
Facsimile 978-327-5219
John T.Srnolak,Esq. '
Direct 978-327-5215
Email:jsrnolak@SmalakYaughan.com
December 23,2004
a
X HAND g-XML
Ellen McIntyre,Chair E
Zoning Board of Appeals
Town of North Andover
400 Osgood Street
North Andover,Massachusetts 01845
RE: MEETINGHOUSE COMMONS—COWRERE-NSIVI:P19RMIT DECIsm
No,2001-033,dated May 24,2002
Project: Meetinghouse Commons
Property. South Bradford Street, North Andover
Applicant&Owner: Meetingbj-jn Commons LLC
Dear Board Members:
Please be advised that I am withdrawing the Applicant's request for modification
filed with the Board as part of my letter,dated December 2,2004,without prejudice.
Sincerely,
f '
John Smolak
JTS/
M. Town Clerk
Thomas J. Urbelis, Esq.
t.
DEC 2 3 ?_004
BOARD OF APPEALS