HomeMy WebLinkAbout1991-11-29 Conservation Restriction Info � � r
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CONSERVATION RESTRICTION
To
North Andover Historical Society
Phillips Common Development Corp. , a Massachusetts corporation
with a principal place of business at 50 Milk Street, Boston,
Massachusetts 02109 , grants, with quitclaim covenants , to North
Andover Historical Society, a Massachusetts charitable
corporation established in 1913, its heirs, devisees, successors
and assigns ( "Grantee") in perpetuity and exclusively for
conservation purposes, the following described Conservation
Restrictions on a parcel of land located in the Town of North
Andover, Massachusetts , said parcel being described in Exhibit A
attached ( "Premises" ) . Hereafter the term "Grantee" shall mean
the said North Andover Historical Society and its heirs,
devisees, successors and assigns .
Purpose. Until the recording of the approvals described in
Paragraph M below, the burden of this Conservation Restriction
shall run with the Premises and shall both be in gross and for
the benefit of and appurtenant to any land adjacent to the
Premises now or hereafter owned by Grantee. Upon the recording
of such approvals, this Conservation' Restriction shall be as
defined in and authorized, by Sections 31-33 of Chapter` 184 of
the General Laws and otherwise bylaw. In any event, its
purpose is to assure that the' Premises will be retained in
perpetuity in their natural and open condition and to prevent
any use of the Premises that will significantly impair 'or
interfere with the conservation values of the Premises . The
conservation of the Premises will yield a significant public
benefit because of its location in the North Andover Old Center
Historic District , The premises are proximate to some of the
Town' s most prized antiquities including the Phillips Manse, the
Parson Barnard House, the First Burying Ground and the entire
Academy Road and Old Center historical areas . Conservation of
this open space will enhance its surroundings and is consistent
with the distinctive environment of the area.
The terms of this conservation Restriction are as follows :
A. Prohibited Uses . Except as to reserved rights set forth
in paragraph B below, Grantor will neither perform nor permit
the following acts or uses on the Premises :
(1) Constructing or placing of any building, tennis court,
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playground, playground equipment, parking lot, landing
strip, mobile home, swimming pool, asphalt or concrete
pavement, sign, billboard or other advertising display,
antenna, utility pole, tower, line or other temporary
or permanent structure or facility on or above the
Premises , except for fences appropriate to the
conservation purposes of this Conservation, Restriction;
and in any event the construction of said fences shall
require the Grantee' s approval, said approval not to be
unreasonably withheld or delayed.
(2) Mining, excavating, dredging, or removing from the
°I Premises of soil, loam, peat, gravel, sand, rock or
other mineral resource or natural deposit, except as
necessary for proper drainage or soil conservation and
then only in a manner which does not impair the purpose
of this Conservation Restriction;
(3) Placing, filling, storing or dumping on the Premises of
soil , refuse, trash, vehicle bodies or parts, rubbish,
debris, junk, waste or other substance or material
whatsoever or the installation of underground storage
tanks;
(4) Cutting, removing or otherwise destroying trees,
grasses or other vegetation, except as provided in
paragraph B below;
(5) Activities detrimental to drainage, flood control,
water conservation, water quality, erosion control or
soil conservation;
(6) The use of motorcycles, motorized trail bikes,
snowmobiles and all other motor vehicles, except as
reasonably necessary in exercising any of the reserved
rights in paragraph B, or as required by the police,
firemen or other governmental agents in carrying out
their lawful duties;
(7) Any other use of the Premises or activity thereon which
is inconsistent with the purpose of this Conservation
Restriction or which would materially impair other
significant conservation interests unless necessary for
the protection of the conservation interests that are
the subject of this Restriction, and
(8) Conveyance of a part or portion of the Premises alone,
or division or subdivision of the Premises (as compared
to conveyance of the Premises in its entirety which
shall be permitted) without the prior written consent
of Grantee.
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B. Reserved Righter. All acts and uses not prohibited in
paragraph A are permissible. Notwithstanding the provisions of
paragraph A, the following acts and uses are also permitted but
only if such uses and activities do not materially impair the
purpose of this Conservation Restriction or other significant
conservation interests :
(1) Appropriate maintenance including but not limited to
the removal of dead or dying trees, mowing of meadows
and thinning of coniferous plantations ;
(2) Upon notice to the Grantee, installation and
maintenance of underground utilities ; and
(3) Pedestrian use, including the construction of a
stonedust walkway.
The exercise of any right reserved by Grantor under this
paragraph B shall be in compliance with the then-current Zoning
By-Law of the Town of North Andover, the Wetlands Protection Act
(General Laws Chapter 131, Section 40) , the North Andover Old
Center Historic District By-Law and all other applicable
federal, state and local law. The inclusion of any reserved
right in this paragraph B requiring a permit from a public
agency does not imply that Grantee takes any position on whether
such permit should be issued.
C. Notice and Approval . Whenever notice to or approval by
Grantee is required under the provisions of paragraphs A or B,
Grantor shall notify Grantee in writing not less than sixty (60)
days prior to the date Grantor- intends to undertake the activity
in question. The notice shall describe the nature, scope,
design, location, timetable and ' any other material aspect of the
proposed activity in sufficient detail to permit Grantee to make
an informed judgment as to its consistency with the purposes of
this Conservation Restriction. Where Grantee' s approval is
required, Grantee shall grant or withhold its approval in
writing within sixty (60) days of receipt of Grantor ' s written
request therefor. Notwithstanding the foregoing, the Grantor is
hereby authorized to make emergency repairs to the
aforementioned underground utilities and to give notice of same
to the Grantee as soon as practicable .
C. Proceeds from Extinguishment . Grantor and Grantee agree
that the donation of this Conservation Restriction gives rise
for purposes of this paragraph to a property right, immediately
vested in Grantee, with a fair market value determined by
multiplying the current fair market value of the Premises
unencumbered by this Restriction (minus any increase in value
attributable to improvements made after the date of this grant)
by the ratio of the value of this Restriction at the time of
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this grant to the value of the Premises, without deduction for
the value of this Restriction, at the time of this grant. Such
proportionate value of Grantee' s property right shall remain
constant . If circumstances arise in the future such as render
the purpose of this Conservation Restriction impossible to
accomplish, this Restriction can only be terminated or
extinguished, whether in whole or in part, by judicial
proceedings in a court of competent jurisdiction. if any change
in conditions ever gives rise to extinguishment or other release
of the Conservation Restriction under applicable law, then
Grantee, on a subsequent sale, exchange or involuntary
Conversion of the Premises , shall be entitled to a portion of
the proceeds equal to such proportionate value, subject,
however, to any applicable law which expressly provides for a
different disposition of proceeds . Whenever all or any part of
the Premises or any interest therein is taken by public
authority under power of eminent domain, or if all or any part
of this Conservation Restriction is otherwise extinguished by
act of public authority, then Grantor and Grantee shall
cooperate in recovering the full value of all direct and
consequential damages resulting from such action. All related
expenses incurred by Grantor and Grantee shall first be paid out
of any recovered proceeds , and the remaining proceeds shall be
distributed between Grantor and Grantee in shares equal to such
proportionate value. Grantee shall use its share of the
proceeds in a manner consistent with the conservation purpose
set forth herein.
E. Access . The Conservation Restriction hereby conveyed
does not grant to Grantee, to the public generally, or to any
other person any right to enter upon the Premises except as
follows ;
(1) There is hereby granted to Grantee and its
representatives the right to enter the Premises at
reasonable times and in a reasonable manner for the
purpose of inspecting the same to determine compliance
herewith and after 30 days prior written notice, to
take any and all actions with respect to the Premises
at the then fee owner ' s cost as may be necessary or
appropriate, with or without order of court, to remedy,
abate or otherwise enforce any violation hereof .
(2) There is hereby granted to Grantee the right but not
the obligation to erect and from time to time replace,
at appropriate locations near the boundaries of the
Premises mutually agreed upon, suitable signs
identifying Grantee as the holder of this Conservation
Restriction.
F. Legal Remedies of Grantee . The rights hereby granted
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shall include the right to enforce this Conservation Restriction
by appropriate legal proceedings and to obtain injunctive and
other equitable relief against any violations, including without
limitation relief requiring restoration of the Premises to its
condition at the time of this grant (it being agreed that
Grantee may have no adequate remedy at law) , and shall be in j
addition to, and not in limitation of , any other rights and
remedies available to Grantee. Grantor covenants and agrees to
sonable costs an d expenses
es (inc
luding
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reimburse Grantee all rea without limitation reasonable counsel fees) incurred in
enforcing this Conservation Restriction or in taking reasonable
measures to remedy or abate any violation thereof . By its
acceptance, Grantee does not undertake any liability or
obligation relating to the condition of the Premises .
Enforcement of the terms of this Restriction shall be at the
discretion of Grantee, and any forbearance by Grantee to
exercise its rights under this Restriction shall not be deemed
or construed to be a waiver . If any provision of this
Conservation Restriction shall to any extent be held invalid,
the remainder shall not be affected.
G. Acts Be and Grantor ' s Control . , Nothing contained in
this Conservation Restriction shall be construed to entitle
Grantee to bring any action against Grantor for any injury to or
change in the Premises resulting from causes beyond the
Grantor ' s control , including , but not limited to, fire, flood,
storm, earth movement, and acts caused by trespass on the
Premises not contributed to by acts or omissions of Grantor, or
from any prudent action taken by Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to
the Premises resulting from such causes .
H. Duration and Assignability. The burdens of this
Conservation Restriction shall run with the Premises and shall
be enforceable against Grantor in perpetuity. Grantee is
authorized to record or file any notices or instruments
appropriate to assuring the perpetual enforceability of this
Conservation Restriction; and Grantor appoints Grantee as
Grantor ' s attorney-in-fact to execute, acknowledge and deliver
any such instruments on Grantor ' s behalf . Without limiting the
foregoing, Grantor agrees to execute any such instrument upon
request . The benefits of this Conservation Restriction shall be
in gross and shall not be assignable by Grantee, except in the
following instances from time to time; (i) as a condition of
any assignment, Grantee requires that the purpose of this
Conservation Restriction continue to be carried out, and (ii)
the assignee, at the time of assignment, qualifies under Section
170(h) of the Internal Revenue Code of 1954 , as amended, and
applicable regulations thereunder, and under Section 32 of
Chapter 184 of the General Laws as an eligible donee to receive
this Conservation Restriction directly. Grantor and Grantee
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intend that the restrictions arising hereunder take effect upon
the date hereof , and to the extent enforceability by any person
ever depends upon the approval of governmental officials, such
approval when given shall relate back to the date hereof
regardless of the date of actual approval or the date of filing
or recording of any instrument evidencing such approval .
i . Subsequent Transfers . Grantor agrees to incorporate the
terms of this Conservation Restriction in any deed or other
legal instrument by which Grantor conveys any interest in all or
a portion of the Premises , including, without limitation, a
leasehold interest . Grantor further agrees to give written
notice to Grantee of the transfer of any interest at least
twenty (20) days prior to the date of such transfer . Failure of
Grantor to do so shall not impair the validity of this
Conservation Restriction or limit its enforceability in any way.
J. Executor Interest • Notwithstanding anything contained
herein to the contrary;
1. if the Grantee, or its successors or assigns fails
to enforce the restrictions conveyed hereby within thirty
(30) days after receipt of written notice sent by the
Trustees of Reservation and requesting such enforcement,
said notice to be delivered by hand or by certified mail,
return receipt requested, then the Trustees of Reservation,
a Massachusetts charitable corporation established under
Chapter 352 of the Acts of 1891, have the right, but not the
obligation, to petition a court of proper jurisdiction to
assume and exercise the authority and responsibilities of
the Grantee herein.
2 . Upon the approval of such a petition by said court
of proper jurisdiction, the Trustees of Reservation shall
notify the Grantee of said approval and shall record the
appropriate court documents in the North Essex Registry of
Deeds and shall then assume and exercise the authority and
responsibilities of the Grantee herein.
K. Notification Prior to Ground Disturbance. Prior to
carrying out any excavation or ground disturbance, with the
exception of spading, roto-tilling or cultivating a domestic
garden, Grantor shall confer with the Grantee regarding measures
to protect archaeological remains that may exist on the
Premises; roved, however, that such conferral shall in no way
be used to prohibit any excavation or ground disturbance.
L. Esto el Certificates . Upon request by Grantor, Grantee
shall within twenty (20) days execute and deliver to Grantor any
document, including an estoppel certificate, which certifies
Grantor ' s compliance with any obligation of Grantor contained in
this Conservation Restriction, and which otherwise evidences the
status of this Conservation Restriction as may be requested by
Grantor .
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t in
of
M. Easement in Gross and p' tandingnanythingetoethe contrary
Governmental A p-11 al . Notwiths
as
contained herein, until )y the �me SelectmensofQ the rTown oof North
Restriction is approved
of Environmental Affairs pursuant to
Andover and the Secretary
8� , Sections 31- 3 and evidence of
Mass . Gen. Laws Chapter 1
their approvals is recorded at the North Essex District Registry
hal
of Deeds, the benefits of this Conservanaoa Rurtenantotosanyl be
both in gross, and for the benefit of a pp
land adjacent to the Premises owned now
orhereafter this by
vation
Grantee. In the absence of said approvals,
Restriction shall remain in force for two hundred years , at
which time it will expire. If , at any time within twenty
years
of execution of this Conservation Restriction, said approvals
are obtained and duly recorded, the provisions of this paragraph
shall become automatically null and void.
No documentary stamps are required as this Conservation.
Restriction is a gift .
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Executed under seal this day of 19
Phillips Common Development
Corp.
By
its
COMMONWEALTH OF MASSACHUSETTS
19
Then personally appeared the above--named
and acknowledged the foregoing instrument to be his/her/their
free act and deed, before me,
Notary Public
My commission expires :
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ACCEPTANCE OF GRANT
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The above Conservation Restriction is accepted this
day of 19
NORTH ANDOVER HISTORICAL
SOCIETY
By
COMMONWEALTH OF MASSACHUSETTS
, ss . 19
Then personally appeared the above-named
and acknowledged the foregoing instrument to be the free act and
deed of the Trustees of Reservations, before' me,
Notary Public
My commission expires :
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CERTIFICATE OF ACCEPTANCE OF EXECUTORY INTEREST
IN THE GRANT OF A CONSERVATION RESTRICTION
by The Trustees of Reservation
The undersigned hereby certifies that the executory interest
in the conservation restriction granted by Phillips Common
Development Corp . to the North Andover Historical Society and
recorded in the North Essex Registry of Deeds on
199 , in Book Page , was accepted by the Trustees as
of 199
The Trustees of Reservation
By
Its
COMMONWEALTH OF MASSACHUSETTS
1991
Then personally appeared the above named
and acknowledged the foregoing to be the free act and deed of
the Trustees of Reservation, before me,
Notary Public
My commission expires :
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CERTIFICATE OF CONSERVATION RESTRICTIONSELECTMEN
p'ppROVAL
NORTH ANDOVER BOARD O
of the of
We the undersigned, being a majority hereby certifyethat at
the Town of North Andover, Massachusetts, ' 19 the Selectmen
a meeting duly held on
voted to approve the foregoing Coserotthe NorthiAndaveranted
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by Phillips Common Development Corp-
Historical Society and recorded in the North Essex Registrypur Of
nt
199 in Book , Page '
Deeds on '
to M.G.L. Chapter 189 , Section 32 .
Selectmen
COMMONWEALTH OF MASSACHUSETTS
19
,ss .
Then personally appeared the above-named Selectmen and
acknowledged the foregoing instrument to be their free act and
deed, before me,
Notary Public
My commission expires :
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CERTIFICATE OF CONSERVATION RESTRICTION
APPROVAL BY SECRETARY
OFFMENVIRONMENTAL AFFAIRS
COMMONWEALTH
ned Secretary of the Executive Office of
The undersigned,
Environmental Affairs of the Commonwealth of Massachusetts ,
hereby certifies that the foregoing Conservation Restriction
ps Common Development Corp. to the North
granted by Philli
Andover Historical Society and recorded in the North Essex
Registry of Deeds on , 199 in Book ► page ,
has been approved in the public interest pursuant to M.G.L.
Chapter 184 , Section 32 .
Dated: Secretary of Environmental
Affairs
COMMONWEALTH OF MASSACHUSETTS
19
, ss .
Then personally appeared the above-named
and acknowledged the foregoing instrument to be his/her/their
free act and deed, before me,
Notary Public
My commission expires :
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EXHIBIT A
CONSERVATION RESTRICTION AREA
Number 1
Beginning at the northeast corner , at a point on the westerly
sideline of Osgood Street, and the southerly sideline of Phillips
Brooks Road , running :
S 850- 57 ' -09 " W 200 . 00 ' along Phillips Brooks Road to a
point at land designated "open
space , " thence
S 010-22 ' - 27 " E 157 . 02 ' across land designated "open
space to a point at land
designated Lot Y , thence
N 860-48 ' -27 " E 200 . 12 , along otsY to ae poi nt on the
westerly
Street , thence
N 010-27 ' -36 " W 160 .00 ' along the westerly sideline of
Osgood Street to a point at
Phillips Brooks Road , said point
being the point of beginning .
Said area is depicted as "Conservation Restriction Area #1 "
containing 31 ,687 square feet land area and shown on a "Special
Permit and Definitive Plan of Phillips Common , North Andover , MA,
dated October 10 , 1991 , Sheet #2 of #6 , Merrimack Engineering
Services , 66 Park Street , Andover , MA 01810. "
Number 2
Beginning at the northeast corner , at a point on the westerly
sideline of Osgood Street, at land designated as Lot Y , running :
N 870-35 ' -40" W 157 . 43 ' along
Lot Y to a point at Lot #6 ,
thence
S 070-20 ' -36 " E 33 . 73 ' along Lot
#6 to a point at Lot
thence
S 310-20 '-34 " W 17 . 12 ' along Lot #5 to a point on the
easterly boundary of Lot #5 ,
thence
S 020-24 ' - 20" W 221 .88 ' across land designated "open
space " to a point at land of
Forzse , thence
N 870- 63 ' -37 " E 160 . 50 ' along land of Forzse to a point
on the westerly sideline of
Osgood Street , thence
1,A 0Ar3V QTDrPT 6 ANDOVER.MASSACHUSETS 01810
2' esne of
_
N 020-24 ' -,20 " E 257 . 49 ` Osgood Street along the wttala s P oidntiat Lot
Y .
Said area is depicted as Conservation Restriction Area #2 and
contains 41 ,966 square feet land area and is
shown onAa "Special
P
llsp s Co
Permit and Definitive of hi
Plan
over , MA,
dated October 10 , 1991 , Sheet #2 of #6 , Merrimack Engineering
Services , 66 Park Street , Andover , MA 01810 . "
AA PARK STREET ANDOVER,MASSACHUSETTS 01810
THIS PRESERVATION RESTRICTION
made this day of , 19 , by and
between Phillips Common Development Corp . , a Massachusetts
corporation with a principal place of business at 50 Milk Street,
Boston, Massachusetts 02109 ( "Grantor" ) its successors and
assigns , and the North Andover Historical Society, a Massachusetts
charitable corporation established in 1913 , its successors and
assigns („Grantee") .
WITNESSETH THAT:
WHEREAS, the Grantor is the owner in fee simple of a certain
parcel of land with improvements thereon as shown and described in
Exhibit A attached hereto and made part hereof , located at 168
Osgood Street, North Andover, Massachusetts, and which includes a
house known as the Phillips Manse, which house and parcel of land
are hereafter referred to as the "Premises" , and 1
WHEREAS, the Grantee is a charitable corporation organized
under the laws of the Commonwealth of Massachusetts and is
authorized to accept this Preservation Restriction under M.G.L. c.
184 , section 32, (the "Act" ) ; and
WHEREAS, the Phillips Manse is listed in the National Register
of Historic Places ; and
WHEREAS, the Premises are significant for their historical,
architectural, archaeological, scenic and environmental
associations; and
WHEREAS, it is the intention of the Grantor that this
Preservation Restriction will ensure the preservation and
maintenance of the Premises and said historical, architectural,
archaeological, scenic and environmental qualities; and
WHEREAS, the Grantee wishes to encourage the preservation of
such qualities and associations for the community and for its
citizens; and
WHEREAS, the building located on the Premises is historically
significant and worthy of preservation and the open space
surrounding it complements the historic structure on the Premises,
thereby endowing the Premises with scenic, natural, and aesthetic
value and significance, the preservation of which is important to
the public and will serve the public interest in a manner
consistent with the purposes of the Act; and
WHEREAS, the Grantor wishes to impose certain restrictions,
obligations and duties upon the Premises and on the successors
to its right, title and interest therein, with respect to
maintenance, protection, and preservation of the Premises in
order to protect the historical, architectural, and
archaeological qualities thereof; and
WHEREAS, the grant of this Preservation Restriction from the
Grantor, its heirs, successors and assigns to the Grantee, its
successors and assigns and the declaration of covenants by the
Grantor on behalf of itself, its heirs, successors and assigns
in favor of the Grantee, its successors and assigns , will
assist, advance and protect the interests recited above.
NOW, THEREFORE, in accordance with the Act and in
consideration of One Dollar ($1. 00) and other good and valuable
consideration paid, the receipt and sufficiency of which is
hereby acknowledged, the Grantor gives and conveys to the
Grantee in perpetuity a Preservation Restriction in the
Premises , subject to the following terms:
1 . Purpose. Until the recording of the approvals described in
Paragraph 21 below, the burden of this Preservation
Restriction shall run with the Premises and shall both be in
gross and for the benefit of and appurtenant to any land
adjacent to the Premises now or hereafter owned by Grantee.
Upon the recording of such approvals, this Preservation
Restriction shall be as defined in and authorized by
Sections 31-33 of Chapter 184 of the General Laws and
otherwise by law. In any event, its purpose is to assure
that the Premises will be retained in perpetuity for all of
the purposes herein expressed.
2 . Permitted Uses . The Premises - shall be used or developed, or
permitted to be used or developed by others, only for open
space, horticultural and single family residential '
purposes . Notwithstanding the foregoing, a family suite may
be included within the residence, but not attached thereto .
The establishment of said internal family suite must, in any
event , conform to the provisions of Section 2 . 22 . 1 of the
North Andover zoning By-Law. It is hereby agreed that an
attached family suite is not allowed hereunder.
Notwithstanding anything contained herein to the contrary,
the garage located on said Premises may be repaired,
restored or reconstructed, provided however, that such
repair, restoration or reconstruction shall be subject to
the provisions herein set forth in paragraph 4 . In the
event of substantial destruction of the garage by fire or
other casualty, it may be replaced with a similar structure
in substantially the same location provided that the Grantee
approve the plans and location in writing, which approval
shall not be unreasonably delayed or withheld, and which
written approval shall be recorded with the North Essex
Registry of Deeds . The expense of said repair, restoration
or reconstruction, in any event, is the sole responsibility
of the owner of the Premises . Similarly, a fence may be
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erected along the western boundary of said Premises subject
to the same terms and conditions contained in this paragraph
2 . Again, the cost of the erection of said fence shall be
at the expense of the owner of the Premises .
3 . Prohibited Uses . No use shall be made of the Premises, and
no activity thereon shall be permitted which, in the
reasonable opinion of the Grantee, is or may become
inconsistent with the intent of this grant, that being the
preservation of the Premises ' structure and landscape and
the use of the Premises for residential purposes . Without
intending to expand the permitted uses set forth above, the
following uses of the Premises are, without limitation,
expressly prohibited: clubhouses , industrial and
manufacturing uses or structures, mobile homes, landfills,
junkyards, utilities and related structures on or above the
ground, with the exception of a cable TV connection and
those utilities existing at the time of recording hereof,
commercial parking lots, auto graveyards, storage or
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disposal of hazardous wastes, garbage, above ground swimming
pools , trash or other unsightly or offensive materials , and
all billboards or other commercial advertising displays and
any other uses inconsistent with the stated purposes of this
restriction whether or not said uses are permitted by any
law.
4 . Subdivision. The land described in Exhibit A attached
hereto shall not be subdivided, nor shall it ever be devised
or conveyed except as a unit .
5 . Alterations and Additions . No alterations shall be made to
the facade of the house currently existing on the Premises
which would materially affect the appearance or the
historical or architectural qualities of such facade without
the express written consent of the Grantee; yr.g.vided,
however, that the maintenance, repair and preservation of
such facade may be made without Grantee ' s written
permission. The term "facade" shall include, but not be
limited to, doors, door frames and decoration, window sash
and frames, and siding . The term "facade" shall not include
the foundation. Such facade shall not be considered to be
"altered" by the following types of work: (a) painting or
staining of the exterior, (b) necessary structural repairs ,
(c) insulation applied to the inside of the house, (d)
installation of window and door screens and storm windows
and doors, (e) interior renovation and alteration to
accommodate uses permitted hereunder or by law, (f) the
pointing of the chimneys, (g) the replacement of wooden
gutters with metal gutters, (h) the replacement of wooden
clapboards with wooden clapboards , (i) removal and
replacement of the original shutters, and (j ) the
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replacement or reconstruction of any element by an item
identical in design and material ; ro�vid,e,d, further, if it
shall be impossible to replace or reconstruct any element in
an identical manner, then the replacement or reconstruction
in a substantially identical manner and material shall be
deemed adequate and such replacement, reconstruction, or
refurbishment shall be permitted without the Grantee' s prior
written consent when such action will not alter the
appearance of such facade.
6 . Landscaping Landgcaping and Additional. Structures . The parties hereto
acknowledge that the landscaping presently existing on the
Premises is unsightly and inadequate. The Grantor hereby
declares its intention to improve said landscaping in order
to make it more consistent with the historical and
architectural qualities of the Premises and the landscaping
generally found in the Old Center area of North Andover .
Nothing herein shall be construed so as to prevent the
construction, on the remainder of the Premises, of
structures or outbuildings normally associated with a single
family residence, including, without limitation, a tennis
court or a swimming pool, provided that a buffer area of
natural vegetation at least fifty feet in width shall be
maintained between the east boundary of the Premises and any
such structure or outbuilding and also provided that said
construction secure the prior approval of the Grantee, said
approval not to be unreasonably delayed or withheld. In any
event, any voluntary removal or replacement or alteration of
the fence or stone wall along Osgood Street shall require
the prior approval of the Grantee, said approval not to be
unreasonably delayed or withheld; it being understood that
removal or placement or alteration of the existing fence is
desired.
7. Notification Prior to Ground Disturbance. Prior to carrying
out any excavation or ground disturbance, with the exception
of spading, roto-tilling or cultivating a domestic garden,
Grantor shall confer with the Grantee regarding measures to
protect archaeological remains that may exist on the
Premises; provided, however, that such conferral shall in
no way be used to prohibit any excavation or ground
disturbance.
8 . Removal; Eminent Domain: Casualty. No portion of any of the
buildings now on the Premises shall be moved from their
present locations unless required by an eminent domain
taking, or unless the Grantee has provided prior written
consent . Notwithstanding the foregoing, if the Premises or
any substantial portion thereof shall be taken by eminent
domain, or if any of the improvements shall be destroyed by
fire or other casualty, or be so substantially damaged that
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rebuilding or restoration using the same materials or same
design would, in the Grantee ' s opinion, be impractical,
after the application of awarded damages or collected
insurance premiums , then the owner from time to time in such
cases may either decline to rebuild or restore the Premises
or, if he elects to rebuild or restore, may use other
materials and designs . If the house is to be rebuilt or
restored, or if different designs or building materials are
to be used as provided herein, the written consent thereto
of the Grantee must be recorded with the North Essex
Registry of Deeds . In no event, however, shall any
different design be used unless' it is first approved in
writing by the Grantee, which approval shall not
unreasonably be delayed or withheld, and which written
approval shall also be recorded with the North Essex
Registry of Deeds .
9 . Maintenance and Administration. Grantor shall keep and
maintain the exterior of the Premises in good, clean and
safe condition and shall maintain, repair and administer the
Premises to preserve the historic and architectural
integrity of the features, materials, appearance,
workmanship and environment of the Premises . The Grantor
assumes for itself, its heirs, successors and assigns the
total cost of such maintenance, repair and administration of
the Premises . Nothing herein shall prohibit the Grantor or
its heirs, successors or assigns from seeking financial
assistance from any source available to it . The Grantee
does not assume any obligation for maintaining, repairing or
administering the Premises .
10 . Ski nna. There shall be no signs painted or affixed to the
structures or landscape of the Premises, except (a) such
plaques or other markers approved in advance in writing by
the Grantee as are appropriate for communicating the
historic or architectural significance of the Premises; (b)
such signs or markers as are necessary to direct the passage
of persons or parking of vehicles on the Premises; and (c) a
sign or signs stating solely the address of the Premises and
the name of the owner or occupant. The Grantee may erect,
and from time to time replace, at mutually agreed upon
locations on the Premises, a suitable and mutually agreed
upon sign not to exceed 200 square inches identifying the
Premises as private property and the Grantee as holders of
this Preservation Restriction.
11 . Duration; Assignment ; Effective Date . The burdens of this
Preservation Restriction shall run with the Premises in
perpetuity, and shall be enforceable against the Grantor and
the successors and assigns of the Grantor holding any
interest in the Premises . The Grantee is authorized to
-5-
record or file any notices or instruments appropriate to
assuring the perpetual enforceability of this Preservation
Restriction; and the Grantor on behalf of itself and its
successors and assigns appoints the Grantee and their
attorney-in-fact to execute, acknowledge and deliver any
such instruments on their behalf . The benefits of this
Preservation Restriction shall be in gross and shall not be
assignable by the Grantee, except in the following
instances, from time to time: (i) as a condition of any
assignment, the Grantee requires that the purpose of this
Preservation Restriction continue to be carried out , and
(ii) the assignee, at the time of assignment, is a qualified,
organization within the meaning of Section 170 (h) (3) of the
Internal Revenue Code which is organized and operated
primarily or substantially for one of the preservation
purposes specified in Section 170 (h) (4) (A) of the Internal
Revenue Code, as amended and under Mass . Gen. Laws c. 184 , s
32, as an eligible donee to receive this Preservation
Restriction directly. The Grantor and the Grantee intend
that the restrictions arising hereunder take effect upon the
date of recording, and to the extent enforceability by any
person ever depends upon the approval of governmental
officials, such approval , when given, shall relate back to
the date hereof regardless of the date of actual approval or
the date of filing or recording of any instrument evidencing
such approval .
12 . Property Right . The Grantor and the Grantee agree that the
donation of this Preservation Restriction gives rise for
purposes of this paragraph to . a property right, immediately
vested in the Grantee, which the parties stipulate to have a
fair market value determined by multiplying the fair market
value of the Premises unencumbered by this Preservation
Restriction (minus any increase in value after the - date of
this grant attributable to improvements) by the ratio of the
value of this Preservation Restriction at the time of this
grant to the value of the Premises , without deduction for
the value of this Preservation Restriction, at the time of
this grant . The values at the time of this grant shall be
those values used to calculate the deduction for federal
income tax purposes allowable by reason of this grant,
pursuant to Section 170(h) of the Internal Revenue Code of
1954 , as amended. For the purposes of this paragraph, the
ratio of the value of this Preservation Restriction to the
value of the Premises unencumbered by this Preservation
Restriction shall remain constant. If any change in
conditions. ever gives rise to extinguishment or other
release of the Preservation Restriction under applicable
law, then the Grantee, on a subsequent sale, exchange or
involuntary conversion of the Premises, shall be entitled to
a portion of the proceeds equal to such proportionate value,
-6-
subject, however, to any applicable law which expressly
provides for a different disposition of proceeds . Whenever
all or any part of the Premises or any interest therein is
taken by public authority under power of eminent domain, or
if all or any part of this Preservation Restriction is
otherwise extinguished by act of public authority, then the
Grantor and the Grantee shall cooperate in recovering the
full value of all direct and consequential damages resulting
from such action. All related expenses incurred by the
Grantor and the Grantee shall first be paid out of any
recovered proceeds, and the remaining proceeds shall be
distributed between the Grantor and the Grantee in shares
equal to such proportionate value. The Grantee shall use
its share of the proceeds in a manner consistent with the
conservation purpose set forth herein.
13 . Approval ; Waiver . Any written consent, approval, or waiver
given by the Grantee pursuant to this Preservation
Restriction shall be in recordable form, and executed and
acknowledged by the responsible officer for the purpose.
Consent as to one alteration or improvement shall not be
construed to waive the requirement for consent as to
subsequent alterations or improvements . The failure of the
Grantee to act upon a request for consent within sixty days
after receipt of such request shall be construed as waiver
of the Grantee ' s rights of prior consent solely for that
particular improvement or alteration. The recording by
Grantor of a statement to such effect at the Registry of
Deeds will be binding upon Grantee. The Grantee shall not
unreasonably withhold approval .
14 . Breach by Grantor . In the event of the non-performance or
violation of any duties of the Grantor, its successors,
heirs or assigns, under this Preservation Restriction, the
Grantee may sue for money damages . In addition, the Grantee
may institute suit to enjoin such violation and to require
the restoration of the Premises to the condition required by
this Preservation Restriction. In addition, after 90 days
written notice and failure to remedy, representatives of the
Grantee may do whatever is necessary, including entering
upon the Premises in order to correct any such
non--performance or violation and the Grantee may then
recover the cost of said correction from the then owner or
owners of the Premises . Should the Grantee resort to any of
the remedies set forth in this paragraph, it may recover
from the legally responsible parties all costs and expenses
incurred in connection with such remedies including, but not
limited to, court costs and reasonable attorney' s fees .
15 . Access . The Preservation Restriction hereby conveyed does
not grant to the Grantee, to the public generally, or to any
-7-
other person any right to enter upon the Premises except as
follows : there is granted to the Grantee and its
representatives the right to enter the Premises (i) at
reasonable times and in a reasonable manner upon reasonable
notice for the purpose of inspecting the same to determine
compliance herewith and (ii) after 30 days ' prior written
notice, to take any and all actions .with respect to the
Premises at the then fee owner ' s cost as may be necessary or
appropriate, with or without order of court, to remedy,
abate or otherwise enforce any violation hereof . Grantor
covenants to maintain reasonable visual access of the house
from Osgood Street; provided, however, that appropriate
planting and other landscaping is permitted as long as
passersby would have a reasonably unobstructed view of the
east facade of the house on the Premises .
16 . Executory Interest . Notwithstanding anything contained
herein to the contrary;
E
A. If the Grantee, or its successors or assigns fails
to enforce the restrictions conveyed hereby within thirty
(30) days after receipt of written notice sent by the
Trustees of Reservation and requesting such enforcement,
said notice to be delivered by hand or by certified mail,
return receipt requested, then The Trustees of Reservation,
a Massachusetts charitable corporation established under
Chapter 352 of the Acts of 1891, have the right, but not the
obligation, to petition a court of proper jurisdiction to
assume and exercise the authority and responsibilities of
the Grantee herein.
B . Upon the approval of such a petition by said court
of proper jurisdiction, the Trustees of Reservation shall
notify the Grantee of said approval and shall record the
appropriate court documents in the North Essex Registry of
Deeds and shall then assume and exercise the authority and
responsibilities of the Grantee herein.
17 . Validity and Severability. This Preservation Restriction is
made pursuant to M.G.L. c. 184 , section 32, but the
invalidity of such Act or any part thereof shall not affect
the validity and enforceability of this Preservation
Restriction according to its terms, it being the intent of
the parties to agree and to bind themselves, their
successors and their assigns in perpetuity to each term of
this Preservation Restriction. The invalidity or
unenforceability of any provision of the Preservation
Restriction hereby granted shall not affect the validity or
enforceability of any other provision of this Preservation
Restriction or any ancillary or supplementary agreement
relating to this Preservation Restriction,
�8_
18 . Recording . The Grantor shall record this Preservation
Restriction with the appropriate Registry of Deeds . A copy
of the recorded Preservation Restriction shall then be filed
with the Massachusetts Historical Commission.
19 . Grantor ' s Obligation . Grantor ' s obligation hereunder shall
only bind the then record owner of the PREMISES.
20 . Duration and Assignability. The burdens of this
Preservation Restriction shall run with the Premises and
shall be enforceable against Grantor in perpetuity. Grantee
is authorized to record or file any notices or instruments
appropriate to assuring the perpetual enforceability of this
Preservation Restriction; and Grantor appoints Grantee as
Grantor ' s attorney-in--fact to execute, acknowledge and
deliver any such instruments on Grantor ' s behalf . Without
limiting the foregoing, Grantor agrees to execute any such
instrument upon request . The benefits of this Preservation
Restriction shall be in gross and shall not be assignable by
Grantee, except in the following instances from time to
time ; (i) as a condition of any assignment, Grantee
requires that the purpose of this Preservation Restriction
continue to be carried out, and (ii) the assignee, at the
time of assignment, qualifies under Section 170 (h) of the
Internal Revenue Code of 1986, as amended, and applicable
regulations thereunder, and under Section 32 of Chapter 184
of the General Laws, as amended, as an eligible donee to
receive this Preservation Restriction directly, Grantor and
Grantee intend that the restrictions arising hereunder take
effect upon the date hereof, and to the extent
enforceability by any person ever depends upon the approval
of governmental officials, such approval when given shall
relate back to the date hereof regardless of the date of
actual approval or the date of filing or recording of any
instrument evidencing such approval .
21 . Easement in Gross and Appurtenant in Absence of Governmental
Approval . Notwithstanding anything to the contrary
contained herein, until such time as this Preservation
Restriction is approved by the Selectmen of the Town of
North Andover and the Massachusetts Historical Commission
pursuant to Mass . Gen. Laws Chapter 184 , Sections 31-33 and
evidence of their approvals is recorded at the North Essex
District Registry of Deeds, the benefits of this
Preservation Restriction shall be both in gross , and for the
benefit of and appurtenant to any land adjacent to the
Premises owned now or hereafter by Grantee. In the absence
of said approvals, this Preservation Restriction shall
remain in force for two hundred years, at which time it will
expire. If, at any time within twenty years of execution of
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o III
3 '
this Preservation Restriction, said approvals are obtained
and duly recorded, the provisions of this paragraph shall
become automatically null and void.
No documentary stamps are required as this Preservation
Restriction is a gift .
-10-
IN WITNESS WHEREOF, I have affixed my hand and seal
this day of , 19
COMMONWEALTH OF MASSACHUSETTS
, sS . 19
Then personally appeared the
above-named and acknowledged the
foregoing instrument to be his/her free act and deed, before me,
Notary Public
My commission expires:
--i1-'
i
CERTIFICATE OF ACCEPTANCE OF EXECUTORY INTEREST
IN THE GRANT OF PRESERVATION RESTRICTION
by The Trustees of Reservations
The undersigned hereby certifies that the executory interest
in the preservation restriction granted by Phillips Common
Development Corp. to the North Andover Historical Society and
recorded in the North Essex Registry of Deeds on
1991 in Book Page , was accepted by the Trustees as
of , 1991 .
The Trustees of Reservations
By
Its
COMMONWEALTH OF MASSACHUSETTS
ss . , 1991
Then personally appeared the above named
and acknowledged the foregoing to be the free act and deed of
The Trustees of Reservations , before me,
Notary Public
My commission expires :
-12-
I
ACCEPTANCE OF GRANT
By The North Andover Historical Society
The above Preservation Restriction is hereby accepted
this day of , 19
THE NORTH ANDOVER HISTORICAL
SOCIETY
By
Its
COMMONWEALTH OF MASSACHUSETTS
, ss . 19
Then personally appeared the
above-named and acknowledged the foregoing
to be the free act and deed of The North Andover' Rural and
Historical Society, before me,
Notary Public
My commission expires :
-13-
E
CERTIFICATE OF PRESERVATION RESTRICTION APPROVAL
NORTH ANDOVER BOARD OF SELECTMEN
We, the undersigned, being a majority of the Selectmen of
the Town of North Andover, Massachusetts, hereby certify that at
a meeting duly held on 19 , the
Selectmen voted to approve the foregoing Preservation
Restriction granted by Phillips Common Development Corp. to the
NorthAndover Historical Society and recorded in the North Essex
Registry of Deeds on 199 in Book ,
Page pursuant to M.G.L . Chapter 184 , Section 32 .
-14-
APPROVAL BY MASSACHUSETTS HISTORICAL COMMISSION
The undersigned of the
Massachusetts Historical Commission of the Commonwealth of
Massachusetts hereby certifies that the foregoing Preservation
Restriction granted by Phillips Common Development Corp. to the
North Andover Historical Commission and recorded in the North
Essex Registry of Deeds on , 199 in Book ,
Page , has been approved in the public interest pursuant to
Massachusetts General Laws, Chapter 184 , Section 32 .
Date:
COMMONWEALTH OF MASSACHUSETTS
, ss . 19
Then personally appeared the above--named
and acknowledged the foregoing to be his/her free act and deed,
before me,
Notary Public
My commission expires :
-15-
t a .
EXHIBIT A
LOT Y
NOV EMB ER 20 , 1991
Beginning at the northeast corner , at a point on the westerly
sideline of Osgood Street , at a point at Lot X-2 , running :
S 010-27 '-36 " E 141 . 87 ' along the westerly sideline of
Osgood Street to a point , thence
S O40-20 '- 28 " W 16 . 54 ' along the westerly sideline of
Osgood Street to a point, thence
S 420-4l ' -59 " E 9 .49 ' along the westerly sideline of
Osgood Street to a point, thence
S 010-24 '-11 " W 50. 38 ' along the westerly sideline of
Osgood Street to a point , thence
S 220-14 '-34 " W 53 . 68 ' along the westerly sideline of
Osgood Street to a point, thence
S 020-24 ' -20 " W 143 . 64 ' along the westerly sideline of
Osgood Street to a point at Lot
X-1 , thence
N 870-35 '-40 " W 157 . 43 ' along Lot X-1 to a point at Lot
#6 , thence
N 070- 20 ' -36 " W 133 .61 ' along Lot #6 to a point, thence
N 710- 29 ' -30" W 31 . 96 ' along Lot #6 to a point, thence
N 010-27 ' -36 " W 32 . 93 ' along Lot #6 to a point, thence
N 830-3l ' -48 " W 52 .30 ' along Lot #6 to a point at Lot Z ,
thence
N 070-56 '-28" E 208 . 99 ' along Lot Z and Lot #7 to a point
at Lot X-2 , thence
N 860-48 '-27 " E 247 . 77 ' along Lot X-2 to a point on the
westerly sideline of Osgood
Street.
Said parcel contains 90 ,329 square feet land area and is shown as
Lot Y on a "Special Permit and Definitive Plan of Phillips
Common , North Andover , MA, dated October 10, 1991 , Sheet #2 of
#6 , Merrimack Engineering Services , 66 Park Street , Andover , MA
01810 • "
MERRIMACK ENGINEERING SERVICES,INC. 66 PARK STREET ANDOVER,MASSACHUSETfS W810