HomeMy WebLinkAbout1983-10-24 Legal Documents DEF SUB (2) FORM H
PERFORMANCE SECURED BY BANK PASSB�,QK
October 19 85-
North Andover , Massachusetts
AGREEMENT made this date between the town of North Andover
and ,7oseph & Nancy Flynn , trustees t hereinafter referred to as " the
applicant" of tiest Boxford , to secure construction
of ways and installation of municipal services in the Subdivision of
Land shown on a plan entitled : Kara Drive, North Andover, Mass
by - _Flynn Assoc. ,P.C. & Andover-_Mmu1t��"IF �� dated : 6/8/83 revised f 30/83
owned by : Muskabby Realty Trust address P. 0. B0x__
land located Kara' Drive
North Andover and showing -2�, - proposed lots .
KNOW ALL MEN by these presents that the appl cant hereby binds and
obligates himself , his , or its executors , administrators , devisees , heirs ,
successors and assigns to the town of North Andover a
Massachusetts municipal corporation , acting thr, ugh its Plannint Board ,
in the sum of $94&0.00 dollars , and has st cured this obligation by
deposit with the Treasurer of said town of North Andover
a deposit of money for the above sum represents, by Bank Passbook No .
wi th an order drawn on ti 'F.i
=0RMERLY Bank of Boston . Essex N.A. 4• �yab e to t'he order o
the Planning Board of the town of North Andover said
sups to be used to insure the performance by the applicant of all cov-
enants , conditions , agreements , terms and provisions contained in the
following ;
1 . Application for Approval Definitive Plan ( Form C ) , dated : 8/18/83
2 . The Subdivision Control Law and the Planninn Board ' s Rules and Regu -
lations governing this subdivision and dated 1981
.3 . Cnnditions included in the Certificate of Approval issued by the
f' lanninq Board and dated : 11Z21/83
4 . The Definitive Plan as qualified by the Certificate of Approval , and
5 . Other document( s ) specifying construction o � installation to be
completed , namely :
( Speci -fy other documents , if any , and- list ots secured if on ]y a
part of the subdivision is secured by a ban, passbook ) .
This agreement shall remain in full force and e -, fect until the applicant
has ful l .y and satisfactorily performed all obl i i ations , or has elected
t.o provide another method of securing perforr .,nee as provided by M .G . L .
Chapter 41 , Section 81 -U .
( Page 1 of 3 )
*of Muskabby Realty Trust
1
Upon completion by the applicant of all obligations as specified herein ,
on or before or such later date as may be specified by
vote of the Planning Board with the written concurrence of the applicant
and the bank , the bank passbook shall be returned to the applicant by
the town and this agreement shall become void. In .the event the applicant
sho-uld fail to complete the construction of ways and installation of
municipal services as specified in this agreement and within the time
herein specified , the funds on deposit in the account represented by
th'e aforsaid bank passbook and order drawn thereon may be applied in
whole , or in part , by the Planning Board for the benefit of the town of
North Andover. to the extent of the reasonable cost to the
town of completing SUER construction or installation as specified in this
agreement.. Any unused funds and the bank passbook will be returned to
the applicant upon completion of the work by said town .
The town of North Andover acting iy and through its Planning
Board hereby agrees to accept the aforsaid bank passbook and order drawn
thereon as security for the performance of this project .
The F• F MW�Xk of , N.A.
hereby agrees not to release any funds from the account represented by.
—
the aforsaid bank passbook or otherwise amens' of make a change to the
aforsaid bank passbook or to the order drawn the ^eon without written
agreement by the Planning Board .
Any amendments to this agreement and/or to the aforsaid security shall
be agreed upon in writing by all parties to this agreement .
Ild WITNESS WHEREOF we have hereunto set our hands and seals this
of 19
Si natures 5A a Majority of
tht Members of the Planning
Board of the town of
Sicnature of Appli_ .ant
+
4,/z
osepph AL.' E ynn m ustee
igr,ature of Authorized Rep-
resentative of the
bank .
First National Bank of Boston FORMERLY
Bank of Boston , Essex N.A.
( Page 2 of 3)
BY:
Al
COMMONWEALTH OF MASSACHUSETTS
, s s A—Adl'e') 19
Then personally appeared one of the above named
members of the Planning Board of ,Massachusetts ,
the applicant , a n-d- t-h e author z e,.d -re-pre-s-e n t-a t-i-v e-- of the
�-an-k , and acknowledged the foregoincl rsstrument to
UF-5)e free act and deed of said parties before me .
Notary Public
My Commission Expirds :
pAy Commission Expires October 2,1992
( Page 3 of 3 )
E
e
�@ FO RM I
COVENANT
August 18, 19 83
North Andover ,Massachusetts
KNOW ALL MEN by these presents that the undersigned has submitted an
application dated August 18; 1983 ', to the North Andover Planning
Board for approval of a Definitive Plan of a subdivision of land entitled :
Kara Drive p 1 an by ; Arxmaer Ccx-tltants Tic.
and Flynn Assoc. P.C. _ dated : June 8, 1983 a n d
ow n e d by : Dewi Realty Trust _ address : 130 Lisa Lane
North Andover, Mass. 01845 1 and located :off Lisa Lane
in North Andover.,- Mass. and showing 26 proposed
lots . The undersigned has requested the Planning Board to approve such
plan without requiring a performance bond .
IN CONSIDERATION of said Planning Board of North Andover::
in the county of Essex approving said p an without requiring a
performance bond , the undersigned hereby covenants and agrees with the
inhabitants of the town as follows :
1 . That the undersigned is the owner* in fee simple absolute of all the
land included in the subdivision and that there are no mortgages of
record or otherwise on any of the land , except for those described
below , and that the present holders of said mortgages have assented
to this contract prior to its execution by the undersigned .
* If there is more than one owner, all must sign . "Applicant " may
be an owner or his agent or representative , or his assigns , but
the owner of record must sign the covenant .
2 . That the undersigned will not sell or convey any lot in the subdi -
vision or erect or place any permanent building on any lot until
the construction of ways and installation of municipal services
necessary to adequately serve such lot has been completed in accor-
dance with the covenants , conditions , agreements , terms and provisions
as specified in the following : '
a . The Application for Approroval of Definitive Plan ( Form C ) .
b . The Subdivision Control Law and the Planning Board ' s Rules and
Regulations governing this subdivision .
C . The Certificate of Approval and the conditions of approval spe -
cified therein , issued by the Planning Board , dated 12. 1 11
d . The Definitive Plan as approved and as qualified by the Certi -
ficate of Approval .
e . Other document (s ) specifying construction to be completed ,
n a m e 1 y , Definitive Study prepared by Flynn Assoc. P.C. _.
( Page I of 3)
r
However , a mortgagee who acquires title to the mortgaged premises
by foreclosure or otherwise and any succeeding owner of the mortgaged
premises or part thereof may sell or convey any lot , subject only to
that portion of this covenant which provides that no lot be sold
or conveyed or shall be built upon until ways and services have
been provided to serve such lot .
3 . That this covenant shall be binding upon the executors , adminis -
trators , devisees , heirs , successors and assigns of the undersigned
and shall constitute a covenant running with the land inclueed in
the subdivision and shall operate as restrictions upon the land .
4. That particular lots within the subdivision shall be released from
the foregoing conditions upon the recording of a certificate of
performance executed by a majority of the Planning Board and enum-
erating the specific lots to be released .
5 . That nothing herein shall be deemed to prohibit a conveyance by a
single deed subject to this covenant , of either the entire parcel
of land shown on the subdivision plan or of all lots not previously
released by the Planning Board .
6 . That the undersigned agrees to record this covenant with the
North Essex County Registry of Deeds , forthwith , or to pay
t e necessary recording fees to the said Planning Board in the event.
the Planning Board shall record this agreement forthwith . Reference
to this covenant shall be entered upon the Definitive Subdivision
Plan as approved .
7 . A. deed or any part of the subdivision in violation of the covenant
shall be voidable by the -grantee prior to' the release of the cov-
enant ; but not later than three ( 3) years from the date of such
deed , as provided in Section 81 --U , Chapter 41 , M . G . L .
S. That this covenant shall be executed before endorsement of approval
of the definitive plan by the Planning Board and shall take effect
upon the endorsement of approval .
9 . Upon final completion of the construction of ways and installation
of municipal se.rvi ces as specified herein , on or before two years
from this date na
orthe Planning Board shall release this covent by a n
appropriate instrument , duly acknowledged . Failure to complete con -
struction and installation within the time specified herein or such
later date as may be specified by vote of the Planning Board with a
written concurrence of the applicant , shall result in automatic
rescission of the approval of the plan . Upon performance of this
covenant with respect to any lot , the Planning Board may release
such lot from this covenant by an appropriate instrument duly recorded
10 . Nothing herein shall prohibit the applicant from varying the method
of securing the construction of ways and installation of municipal
services from time to time or from securing by one , or in part by
one and in part by another of the methods described in P . G . L . , Chapter
41 , Section IRI-L) , as long as such security is sufficient in the
opinion of the Planning Board to secure performance of the con -
struction and installation .
*November 21, 1985
( Pape 2 of 3 )
For title to the property , see deed from DooU las E. and Ruth A. Wilson
0 dated Sept. 30, 1980T, recorded in North Essex Registry of
Deeds , Book 1479 , Wage 240 or regi stered in
Land Registry as Document No . and noted on certificate of title
No . in Registration Book , Page
The present holder of a mortgage upon the property is
of
The mortgage is dated and recorded in
Registry of Deeds , Book , Rage , or registered
in land Registry as Document No . ;
and noted on certificate of title No . , in Registration Book ,
Page The mortgagee agrees to hold the mortgage subject tthe
covenants set forth above alid agrees that the covenants shall have the
same status , force and effect as though executed and recorded before
the taking of the mortgage and further agrees that the mortgage shall
be subordinate to the above covenant .
Ruth A. Wilson , spouse of the undersigned applicant
hereby agrees that such interest as I , we may have in the premises shall
be subject to the provisions of this covenant and insofar as is necess-
ary releases all rights of tenancy by the dower or homestead and other
interests therein .
IN WITNESS W EREOF we have hereunto set our hands and seals this (")�``
of ' �; 19 _.
f
Trustee Dewi Realty Trust
Trustee, Muslsabby Realty `.Trust
Acceptance by a Majority of
the Planning Board of
110
ve�,�C
( Page of 3) ,Al CortEmission E� iros.1louarnFaAY 25, 1947
".,, ,
FORM J
RELEASE FORM
The undersigned , beinq a majority of, the Planning Board of the Town
of North Andover , Massachusetts, hereby certify that :
a . the requirements for the construction of ways and municipal services
c a l l e d f o rfax �s�x �^�€ �^ axlxkx� �ES� + �x
19 xAWoa& by the Covenant dated
19 85 and recorded in District
Deeds , Book Page XnX Xx3T cxkxx
�ixtx � xxi� dlk x
���a1x��zt�2xlx�a�x;E�x�t��� ��A�cf�xT���� •xxxxxxx xxc�xx
�K�Kxiitx Page , has been cxxjx �partially
completed , to the satisfaction--of the Planning Board to adequately
serve the enumerated lots shown on Plan entitled " Kara Drive
North Andover, MA, Scale 1."-401 Section ( s ) Sheets
Plan dated June 8 19 83 recorded by thegssex
North District Registry of Deeds , Plan Nit 9399 , M30QOCxx
xR� Xx and said, lots are hereby released from the re�._ -
stii cta'ons as '.to : sale and building specified thereon .
Lots desi gnatec� `ori"s it'd 0an�� ) ��b`l1,dws : ( Lot numbers ) and street (s ) ) >
Lots 1 - 25 Kara Drive
b: (To {be :atte's''t'edta 'by a Registered Land Surveyor)
I heS eby certify that lot number( s ) 1 -- 25
on Kara Drive Street ( s.) ,
do conform to layout as shown on Definitive Plan entitled " Kara Drive ..
North Andover, Mass Section Sheets
Scale 1" 40 ' dated June 8 , 1983 recorded as Plan No. 9399
at Essex North District Registry
of Deeds .
Registered Land Surveyor
( Page 1 of 2 )
C. The Town of North Andover ,, a municipal corporation situated in the
County of Essex , Commonwealth o,f Massachusetts , acting by its duly
- �.-- organized P16nning Board , holder of a � �xxr�Bao }o�ax��
dcxxx 19 AJO ioir, a Covendnt dated
$4 from -
of t e extjK,*Town ofNorth Andover
Essex County , Massachusetts recorded with
t e District deeds , Book ,
Page �tcxx� xx >:zacr x�t>lax�C��aa¢lx :ex� asfxxc �tx
- Xxxxxxxxxxx&a§ixRakRAXRRxj2kxkAfAg:OARxR)fx]TAXtARX xx�Sxxxxxxxxxxx rxx
xxwjxTi& xa�tr xlkmccakxxxxxxxxxxRg;@ exxxxxxxxxx a c know 1.e d ge-s satisfaction.-,- ,.,
of the terms thereof and-hereby releases its right , title and in -
terest in the lots designated on said plan as follows : Lots 1 -25
and substitutes in - place of said_ covenant the amen_dedPerforman.ce
Bond secured by deposit of motley.
EXECUTER as a sealed instrument this day of 19
Majority of the
Planning Board
of the Town of
Forth Andover
q 1
COMMONWEALTH OF MASS,ACHUSETTS
s s . l�`� �/ S
Then personally appeared 4 T •. one of the
above named members of the Planning Board of the Town of North Andover ,
Massachusetts and acknowledged the foregoing instrument to be the free
act and deed of said Planning Board , before me ,
Notary Public
My Commission Expires : `
My Commission Expires October 2, 1992
3;
( Page 2 of 2 ) ''
HAROLD MORLLY, JR, /�
�Eforne y at ,-aw
11 LAWRENCE STREET
LAWRENCE, MASS, 01840 i
TELEPHONE 683-9423 '
AREA CODE 617
March 16 , 1984
Karen Pomeroy, Town Planner
Town of North Andover
Town Hall
North Andover, Massachusetts 01845 y�
Re: Easement
Dear Ms. Pomeroy:
Enclosed find copy of proposed Giard Easement for your
approval.
Very truly yours ,
Harold Morley, Jr.
HM:C
enc.
cc: John A. James, Esquire
I
i
COMM61iVEALTH OF MASSA";JUSETTS
ESSEX, ss. SUPERIOR COURT
CIVIL ACTION
No. 83--2981
William P. Woodcock et al , plaintiff(s)
U.
Town of North Andover, et al , Defendant(s)
NOTICE OF VOLUNTARY DISMISSAL
Pursuant to the provisions of Mass. R. Civ.. P. 41. (a) (I) (i), the plaintiff discontinues the
above-entitled action and dismisses the complaint withal prejudice.
Attorney for Pkintig
127 Turnpike Street
Dated: February 28 , 19'84 Address: North Andover, PEA 01845
Tel. No. 685-3368
1 . -
13
P
u�
A G R E E M E
NT
FM 2
This Agreement is made between Joseph L. Flynn, as Tru .� b Trust
(hereinafter sometimes referred to as Muskabby) and Wil iam
L. Gale, Lester E. Young, and John L. Fox (hereinafter sometimes referred to col-
lectively as the Property Owners) , all of North Andover, Essex County, Massachusetts.
The consideration of this Agreement is as follows. That Muskabby will according to
the paragraphs contained in this Agreement, use its best efforts to accomplish the
construction of a swale affecting the development described below, and to perform
all other conditions contained in this Agreement. And that, the Property Owners
Will upon the execution of this Agreement immediately execute and file all necessary
documents, as specified herein, required to dismiss and terminate a- certain Civil
Action Numbered 832981 filed in- Essex Superior Court, further described below, and
to waive further appeals in connection with that Civil Action, all as hereinafter
set forth.
The further terms of this Agreement are:
That Muskabby will propose, file, and advocate any and all documents, petitions , and
engineering designs, which will be necessary for the granting of permission from
municipal and state governments , agencies, and boards to construct a swale affecting
the area identified on Sheet Numbered 7 of the Definitive Plan - Construction of
Kara Drive, prepared by Flynn Associates and dated, as revised, December 5, 1983,
and attached hereto. It is agreed that all expenses involved in the preparation,
filing and advocating in connection with seeking said approval will be the sole
responsibility of Muskabby. Further that all construction costs of said swale will
be the responsibility of said Muskabby. And, further, said Muskabby will construct
said swale.
Said swale to be constructed in the specific location determined jointly by the Pro-
perty Owners and Muskabby during their site walk of February 5, 1984. Final specific
boundaries are to be marked prior to construction. The Property Owners hereby agree
to provide such easements to Muskabby for construction, and to the Town of North
Andover for maintenance of the swale, as may be necessary. Said easement will be
iialited to the specific boundaries of the Swale and will encompass the swale running
from, and including, the culvert on Rea Street to and including the approved ease-
ment to the detention pond on the property at 50 Jay Road. The resulting easements
would give the Town of North Andover a continuous easement from 50 Jay Road to the
culvert on Rea Street, and would provide two points of access to the easement, one
on 50 Jay Road, one on Rea Street.
That Muskabby will use its best efforts to gain all necessary approvals for construc-
tion of the above swale in the location as described above.
That Muskabby will so construct said swale to accept existing water flowing from the
general direction of Mark Road,. Gil Rea's land, and said detention pond, within
Muskabby' s"prudent engineering judgment.
That Muskabby will construct said swale (including reconsideration of the size of the
culvert under Rea Street) of sufficient size and capability to accommodate
storm intensities as may be approved by the North Andover Planning Board an(ImConser- '
vation Commission.
i -2-
That Muskabby and the Property Owners are to mark the trees for removal and that
wood from said trees which are cut is to be the property of those who own the land
from which said trees grew and shall be given to said persons. All unmarked trees
are not to be removed.
That Muskabby agrees that blasting is to be avoided. If blasting is necessary, said
Property Owners will be notified at least 24 hours in advance as to the location and
time of such blasting and will be protected and indemnified from damage.
That Muskabby and the Town of North Andover's Conservation Commission will jointly
determine the disposition of mispl aced soiI as a result of the construction of said
swale, accommodating the desires of the Property Owners insofar as possible.
That the Property Owners will upon the execution of this Agreement, immediately file
a Stipulation of Dismissal with, Prejudice, and all other necessary Court Documents
required to dismiss an action filed in Essex Superior Court in the Commonwealth of
Massachusetts by William P. Woodcock, et al as Plaintiffs against the Town of North
Andover Planning Board and its members as Defendants, in Civil Action No. 832981.
That the Property Owners agree not to appeal or contest or in any manner hinderk��
WIF the decision of the North Andover
land development known as the Kara Drive Subdivisionng Board approving the proposed November j1
21, 1983 and filed with the North Andover Town Clerk on November 23, 1983.
The Property Owners and Muskabby hereby acknowledge that the Agreements made herein ���
are all subject to the approval of municipal and state governments, agencies, boards
��
rules , and regulations and therefore, are subject to alteration by said governmental "
bodies . Any alterations, changes , deviations from the Agreements contained herein,
shall not affect this dismissal of the action in Essex Superior Court, or any re-
leases , unless Muskabby fails to use its best efforts to perform the Agreements set
forth herein.
In witness whereof, the parties have executed this Agreement on the date written
below.
Dated:
Witness Jose h" . Flynt;', Trustee of
/Muskabby Realty Trust
Witn s Willaim P. Woodcock
�� hJcIJ
10 Hess William L. Gale
j -3- j
Witness n Fox
Wvt ess Lester E. Youn
Iir/, r