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HomeMy WebLinkAbout1991-11-29 Recorded Conservation Restrictions & Correspondence KAREN H.P.NELSON of 4 120 Main Street, 01845 UWn Director (508) 682-6483 NORTH ANDOVER BUILDING CONSERVATION 9 DIVISION OF PLANNING PLANNING & COM�IUNITY DEVELOPMENT November 15, 1991 Mrs. Marie Pitochelli Phillips Common Realty Trust P.O. Box 6700 North Andover, MA 01845 Re: Phillips Common - PRD Special Permit Definitive Subdivision Dear Mrs. Pitochelli: I would first like to thank you for attending last nights Planning Board hearing with regard to the above referenced Special Permit and Definitive Subdivision applications. As you know, the Planning Board officially opened both public hearings and reviewed the plans presented by your development team. After lengthy conversations with your engineer, architect, site manager and representatives of the North Andover Historical Society, the Planning Board has presented the following list of concerns: 1. A No-Cut Line shall be established along the back of all lots which abut Phillips Brook Road, Chickering Road, Osgood Street and the residential dwellings along the southern most boundary of the property. 2 . The Planning Board considers Lot Y to be an integral part of the proposal, as such all development plans should show that parcel as part of the project. 3 . Lot Y should be reconfigured so as to include the existing garage on the property of the Phillips Manse. It is my understanding that this may be accomplished while still retaining the 35% open space requirement of the North Andover Zoning bylaw. 4. The Planning Board is in receipt of your letter dated November 14, 1991 which offers the 5.5 acres of open space to the Town of North Andover. I have asked Town Counsel to review the liability issues involved with acceptance of this parcel as public land. 5. The Planning Board is encouraged by your efforts to cooperate with the North Andover Historical Society. Please present draft copies of any Preservation/Conservation restrictions which are currently being negotiated. 6. Please prepare and present for staff review any necessary easements for roadway/utility conveyance and drainage, sewer or water line easements located on individual lots. All easement on individual lots must be recorded prior to endorsement of the record plans. 7. Please provide documentation to the Board of Health and the Planning Department that the existing Phillips Manse is currently tied into the sewer line located in Osgood Street. 8. Please provide an approximate schedule for construction in Massachusetts Avenue. This should include the sewer and drainage lines and all utilities which will require openings in the roadway for tie-ins. The Planning Board will place restrictions on the number of openings and length of time for construction within Massachusetts Avenue. 9 . More screening should be provided along the rear of the lots which abut Massachusetts Ave. The material used should be evergreen trees of the same type used in other areas on the property. 10. Details of all proposed lighting should be submitted for review. This includes lighting proposed at the entry. 11. The Planning Board considers "lot Y11 to be a 27th lot. With that in mind the Board is reviewing the details of the project and the PRD bylaw to determine whether this is an appropriate calculation of allowed lots. 12 . A site walk has been scheduled for 8 : 00 am Saturday, November 16, 1991. Please have approximate location of the roadway located on site for Planning Board inspection. The Division of Public Works has submitted a letter dated November 14, 1991. The Planning Board would like you to address the following as listed in that letter: 13 . In general the depth of sewer is not acceptable as designed. The sewer should be lowered to avoid conflicts in elevation between the water main and sewer services. 14 . Provide a profile of the cross-country sewer to Mass Ave. 15. Calculations must be provided to determine the adequate sizing of water services to accommodate residential fire sprinklers. 16. Drain manholes at station 3+84 and 11+60 may be eliminated and the drain pipe should be connected to the adjacent catch basins. Other drain manholes within the project should be located off pavement wherever possible. 17 . Permits for connection to Town utilities will not be granted until a complete set of endorsed plans with up-to-date revisions is on file in the office of the Division of Public Works. 18 . A Sewer System Extension Permit from D.W.P.C. of the Mass. Department of Environmental Protection must be obtained prior to the issuance of a sewer extension permit by the North Andover Division of Public Works. The local permit, in accordance with N.A.D.P.W. policy, will require 2 : 1 mitigation of existing infiltration/inflow from the receiving system. The receiving system, known as the West Side Interceptor, has been determined to be over capacity due to infiltration/inflow. The Public hearing with regard to both applications has been continued to the meeting of November 21, 1991. Please be prepared to respond to this list of concerns at that time. Should you have any further questions please feel free to contact my office at 682-6483 . Sincerely, Christian C. Huntress Town Planner cc: Manning Board Karen H.P. Nelson, Director DPCD. J. William Hmurciak, NADPW. November 21, 1991 Town of North Andover Division of Planning and Community Development 120 Main St. North Andover, Ma 01845 Re: Phillips Common Dear Mr. Huntress: The following is a response to your letter dated November 15, 1991 listing concerns that resulted from the Phillips Common Subdivision Public Hearing that was held on November 14, 1991. 1. The revised definitive plan reflects a no - cut line along the back of those lots which abut Phillips Brook Road. Additionally, we have established a no cut line along the rear of lots 5 and 6 adjacent to the Phillips Manse Garden area. 2. The final definitive plan will highlight the property line along Osgood Street to be continued the entire distance of the lot "Y" frontage. 3. Parcel Y has been re-configured to include the garage located on the Phillips Manse Property. This has been accomplished by including Parcel "Y" as part of the entire area under the P.R.D. by law which results in a 42% open space calculation. 4. Mr. Huntress is reviewing our proposal to gift the 5.5 acres of open space to the town. His recommendation will be presented at the November 21, 1991 hearing, based on a review with Town Counsel. 5. Copies of both the Preservation Restriction effecting Parcel "Y" and the Conservation Restriction effecting the Osgood Street corridor of open space to a restriction line 200' back from the center line of Osgood Street are attached for your review. 6. Merrimack Engineering has prepared the meets and bounds description of all easement areas located on either individual lots or open space areas. These easements will be available to the Town Planner for recording purposes prior to the recording of approved subdivision plans. (Attached) 7. Mr. William Hmerziak has informed me that the Manse has been on town sewer and paying sewer bills to the town of North Andover for several years. This response also satisfies the Board of Health. 8. Merrimack Engineering will have a specific off site utility Construction schedule available at the November 21, 1991 public hearing. (Attached) 9. The site plan has been revised to include vegetative screening along Mass Avenue as needed. A bond will be established by the town planner to reflect the cost of plants and installation labor associated with this screening. Mr. Huntress will have this amount at the public hearing. It is requested that the release of these bond funds be at the discretion of the planning board only. 10. Mr. Woodman has revised the entry wall plan to reflect temporary lighting. Additionally, he will provide street lighting details at the November 21, 1991 public hearing. 11. Mr. Huntress is reviewing the 27th lot under the P.R.D. by law with Town Counsel and will have an answer at the public hearing. 12. Completed - Site walk. 13. The sewer plan has been revised on the definitive plan per D.P.W Input and will be submitted at the public hearing by Merrimack Engineering. 14. The profile of the cross country sewer to Mass Ave. has been provided on the definitive plan. 15. Calculations will be provided to D.P. to establish the sizing of water services to accommodate residential fire sprinklers. 16. The drain manholes at station 3 & 84 and 11&60 have been eliminated on the revised definitive plan as requested by D.P.W. 17. Understood. 18. A sewer extension permit from the D.W.P.C. will be applied for upon the approval of the definitive plan and special permit. A program of mitigation will be submitted to the D.W.P.C. reflecting a 2:1 mitigation of ground water infiltration along the existing Mass Ave. sewer line. Hopefully, this is address those concerns raised at the November 14, 1991 public hearing. However, we will be happy to provide and additional information as requested. Sincerely, Phillips Common Development Corp. By: Thomas D. Laudani LEVY & HALPERIN COUNSELLORS AT LAW FIFTY MILK STREET BOSTON, MASSACHUSETTS 02109 OF COUNSEL TELEPHONE (617) 350-0405 ELIOT F PARKHURST FAX (617) 350-8966 January 10, 1992 Mr. Christian C. Huntress Town of North Andover Division of Planning and Community Development 120 Main Street N. Andover, MA 01845 Re: Clarification of Special Permit dated November 29, 1991 to Phillips Common Realty Trust regarding Osgood Street/East Side of Massachusetts Avenue, North Andover, MA (the "Special Permit") Dear Mr. Huntress: This office represents Marie Pitocchelli, trustee of Phillips Common Realty Trust, the holder of the above referenced Special Permit. We are writing to clarify the following provisions of the Special Permit: 1. Paragraph 8 of the Special Permit provides, in part, as follows: 118 . Prior to the Planning Board' s Endorsement of the record plans: D. Copies of the final Preservation and Conservation restrictions for "lot YII and the surrounding open space which is located within the Historic District shall be recorded with the North Essex Registry of Deeds. E. Restrictive covenants shall be recorded to insure that the architectural style of the proposed structures shall be uniform in design. " Notwithstanding the above language of Paragraph 8 , at the request of Phillips Common Realty Trust, the Planning Board has LEVY & HALPERIN Mr. Christian C. Huntress January 10, 1992 Page two agreed to endorse the record plans before the recording of the Preservation Restriction, conservation Restriction and Restrictive covenants. The plans have already been endorsed and will be held by the Planning Board and released to Phillips Common Realty Trust upon execution of the Preservation Restriction, Conservation Restriction and Restrictive covenants. The plans, restrictions and covenants will then be recorded together. We also wish to clarify that only "lot Y11 will have a Preservation Restriction and that there will be no Conservation Restriction on I'lot Y. 11 The Conservation. Restriction affects only the so called "open space. " Finally, we would appreciate it if you would arrange for a copy of this letter to be signed by the Planning Board and placed in the file in order to confirm the modification and clarification of the Special Permit. Thank-you for your cooperation. Very truly yours, Preston W. Halperin AGREED TO: NORTH ANDOVER PLANNING BOARD By PWH/sf J ATTORNEYS AT LAW 32 CHESTNUT STREET ANDOVER,MASSACHUSETTS 01810 TELEPHONE(508)475.1300 FAX(508)474,0478 IRVING W.SARGENT(1903-1971) ARTHUR SWEENEY(1913-1978) MICHAEL W. MORRIS LAURENCE J.ROSSI DANIEL A. HAYES,JR' January 28, 1992 MELISSA MORRIS DANISCH 'Also admitted in N.H. Mr . Chris Huntress Town Planning Dept . Town of North Andover North Andover, MA 01845 Re: Phillips Common Restrictions Dear Chris : I enclose a copy of the referenced restrictions which have been recorded in North Essex Registry of Deeds in Book 3385, Page 161 (Conservation Restriction) and Book 3385 , Page 183 (Preservation Restriction) . I also enclose signature pages for the North Andover Board indicating approval of the restrictions . As you may be aware, we will need the approval of the Board of Selectmen before we can obtain the approvals of the State Department of Environmental Affairs and the Massachusetts Historical Commission. If you require anything further or if I can answer any questions , please let me know. Chris , your help in this matter is greatly appreciated and your valuable advice and assistance certainly made my to k easier . Sipe , fray% V ael W. M ris F= MWM/sjm encs . CONSERVATION RESTRICTION To North Andover Historical Society Marie Pitocchelli, Trustee of Phillips Common Realty Trust, under declaration of trust dated September 23, 1991 and to be recorded in the North Essex District of the Registry of Deeds herewith ("Grantor") 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 L 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 by law. 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, ri n .. 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 consistent with the regulations of the North Andover Old Center Historic District; 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 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. 2- B. Reserved Rights . 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 y 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 F 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. D. Proceeds from Extinguishment . Grantor and Grantee agree $Y 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 -3- .. -:- v .s. yL .a" ?.. � c �t �F� ,•.' � dam {: - c __ 1> 164 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 s 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 z 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 -4- Y shall include the right to enforce this Conservatioi> Restriction by appropriate legal proceedings and to obtain injunctive and other equitable relief against any violations, including without I 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 addition to, and not in limitation of, any other rights and remedies available to Grantee. Grantor covenants and agrees to reimburse Grantee all reasonable costs and expenses (including 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 Beyond 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 a's an eligible donee to receive this Conservation Restriction directly. Grantor and Grantee -5- < A 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. 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. K. Estoppel 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. L. Easement in Gross and Appurtenant in Absence of Governmental Approval . Notwithstanding anything to the contrary contained herein, until such time as this Conservation Restriction is approved by the Selectmen of the Town of North Andover and the Secretary of Environmental Affairs 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 Conservation 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 Conservation-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. -6- a. ARM JL Executed under seal this 22nd day of January 1992. Mare Pitocchelli, Trustee of Phillips Common Realty Trust COMMONWEALTH OF MASSACHUSETTS Suffolk , ss . Jaanuary 22 1992 Then personally appeared the above-named Marie Pitocchelli and acknowledged the foregoing instrument to be her free act and deed and the free act and deed of the Phillips Common Realty Trust Notary Public Pres n W. Halperin My commission expi es :'6/21/96 -7- i. 3 .. - ........:., .._. ons:. :u'a.,_.a:. .. •<.a n ar�. I- 'x...' ,�L-.a•, k 9 _: - ACCEPTANCE OF GRANT The above Conservation Restriction is accepted this day of January 22 19 92 NORTH ANDOVER HISTORICAL SOCIE By L -O- 6 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 a` 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 Lot Y to a point on the westerly sideline of Osgood 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. " Filed with Essex North Registry of Deeds as Plan # \\c\c\ 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 160 . 00 ' along Lot Y to a point at Lot #6 , thence S 020-24 '-20 " W 270. 12 ' along Lot #6 , Lot #5 , .and across land designated "open space" to a point at land of Forzse , thence N 8-7,0-53 -37 " E 160. 50 ' along land of Forzse to a point on the westerly sideline of Osgood Street, thence N 020-24 '-20" E 257 .49 ' along the westerly sideline of Osgood Street to a point at Lot Y . Said area is depicted as Conservation Restriction Area #2 and contains 42 , 208 square feet land area and is 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 • " Filed with Essex North Registy .of Deeds as Plan # \\'::tc, MERRIMACK ENGINEERING SERVICES,INC. 66 PARK STREET ANDOVER,MASSACHUSETTS 01810 .. .., r a rah ,�'•v�t�.3 I FcSSr.trl?ti3OFDf?EL,S' l!f DIST. 1 b" Jai 2� >a z9 Pf� '92 i r ED I 4 ( jil I � l( m >U> Ij iI E. V~ THIS PRESERVATION RESTRICTION a ' made this 21st day of January 19 92 , by and between RICHARD SEGERSTEDT, PAMELA SEGERSTEDT, KENNETH M. DeVOIE and SHARON DeVOIE, all of North Andover, Massachusetts (hereinafter jointly and collectively referred to as the "Grantor") their 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 I 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 Reg- ,ter of Historic Places and is listed in the. Old North Andover National Register Historic District; 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 3 t . .t ,f Y 184 to their 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, their heirs, successors and assigns to the Grantee, its successors ,and assigns and the declaration of covenants by the Grantor on behalf of themselves , their 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 20 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 -2- 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 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 convey .,ed 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; provided, 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 as long as said replacement is done with wooden shutters, and (j ) the i f - -3- S replacement or reconstruction of any element by an .item identical in design and material; provided, 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 and Additional Structures .. The parties hereto acknowledge that the landscaping presently existing on the Premises is unsightly and inadequate. The Grantor hereby declares their 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 -4- 187 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 i Premises to preserve the historic and architectural integrity of the features, materials, appearance, workmanship and environment of the Premises. The Grantor assumes for themselves, their heirs, successors and assigns the total cost of such maintenance, repair and administration of the Premises . Nothing herein shall prohibit the Grantor or their 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 . Signs . 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 themselves and their 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- -^ - _ _- r4• '-J�1E-C d{"i: s�y ,�f;i .,.,..�=3 -i _-1 r�� 1 4 'n� a a -..„J 1..1-.^ "-'�3-.-`,^""' . 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, their 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 -7 190 . other person any right to enter upon the Premioas 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 . 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. 17. 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. 18 . Grantor ' s Obligation. Grantor' s obligation hereunder shall only bind the then record owner of the PREMISES. 19 . 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 _ -8- continue to be carried out, and (ii) the assigi.de, 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 . 20 . 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 )1this 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. -9- r I i. IN WITNESS WHEREOF, I have a ffi*xed**my hand and seal this _?Lsr day of ichard sego stedt Pamela Seger$ dt Kenneth M.Devoie Sharon DeVoie j COMMONWEALTH OF MA-SSACHUSETTS Est , ss . Then personally appeared the above--named Richard Sagerstedt , Pamela Segerstedt, Kenneth M. DeVoie and Sharon DeVoie and acknowledged the foregoing instrument to be their free acts and deeds, before me, ,, ( !' Notary Public My commission expires : (� i -10- ACCEPTANCE OF GRANT By The North Andover Historical Society The above Preservation Restriction is hereby accepted this 21st day of January 1992 , THE NORTH A�DOVER HISTORICAL SOCIETY By It i _ -11- EXHIBIT "A" a certain parcel of land in ,North Andover, Essex County, Massachunotta, located on th'a went side of Osgood street, beginning at the northeast cornet, at u point: on the westerly sidolino of oagood street, at a paint at Lot X-2 on a plan herainaft r dencJribed, j runnings a 01a-271 -361, E 141. 071 along the westerly sideline of Osgood Street to a point, thence S 04°-201 -2811 W 16 . 341 .. along the westerly sideline of j Osgood Street to a point, thence S 420-41 ' -5911 E 9 . 491 along the westerly sideline of Osgood Street to a point, thence: 9 010-241 -1111 W 50. 381 slang the westerly sideline of Osgood Stroat to a point, thence S 220-141-3411 W 53 . 68 ' along the westerly sideline of Osgood Street to a point, thence S 020-24 '-2011 W 143 . 641 along the westerly sideline of Osgood Street to a point at Lot X-1, thence N 870-351-4011 W 160. 001 along Lot X-1 to a point at Lot 46, I thence r N 02°-241 -20" E 133 , 011 along Lot #6 to a point, thence 6 880-36 '-1711 W 20 . 101 along Lot-- #6 to a point, thence N 710-29 ' -3011 W 31. 961 along Lot #6 to a point, thence N 010-271 -3611 W 32 . 931 along Lot 116 to a point, thence i N 830-311-4811 W t52 . 29 ' along Lot #6 to a point at Lot Z, theiricQ N 07O -fib ' -28" B 200 . 991 along Lot Z and Lot #7 toga point at Lot X-2, thence N 86o-48 ' -27" E - 247 .77 along Lot X-2 to a point on the wootsrly aid ling of Osgood Stroot. j Said parc4il contains, 891165 square feat land area and. is more particularly shown as Lot Y on a 11Special Permit and Detinitivo Plan of Phillips Common, North Andover, MAI dated octobar 10, 1991,. sheet #2 of #6, Morrimauk tnginaering Sarvicsea, 66 Park Street, Andover, MA 018101, Piled with the En®ex North Registry of Deeds are Plan No. \,� � a 2028. 3 f ,Af ..._ ESacX FEf 0 S�EFGS i! T Jtxi B A RECOREEG W 01 oL,sm � CD go t,3 CD s E CONSERVATION RESTRICTION To North Andover Historical Society Marie Pitocchelli, Trustee of Phillips Common Realty Trust, under declaration of trust dated September 23, 1991 and to be recorded in the North Essex District of the Registry of Deeds herewith ("Grantor" ) 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 L, 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 by law. 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 buildirig, ,tennis court, r - - _ 162 playground, playground equipment, parking lot, landing strip, mobile home, swimming7pool, 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 consistent with the regulations of the North Andover Old Center Historic District; 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 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. -2- B. Reserved Rights . 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. D. Proceeds from Extinguishment. Grantor and Grantee agree that the donation of this Conservation Restriction gives rise 7 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 s. -3- 164 this grant to the value of the Premises, without deduction for the value of this Restriction, at the time of this grant. Such t 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 -4- shall include the right to enforce this Conservation Restriction by appropriate legal proceedings and to obtain injunctive and other equitable relief against any violations, incltiding 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 addition to, and not in limitation of, any other rights and remedies available to Grantee. Grantor covenants and agrees to reimburse Grantee all reasonable costs and expenses (including 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 Beyond 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 Assignabilit 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 f-o'llowing 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 -5- intend that the restrictions arising hereunder take effect upon the date hereof, and to the extent enforceability by. ,4ny 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. 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. K. Estoppel 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. L. Easement in Gross and Appurtenant in Absence of Governmental Approval . Notwithstanding anything to the contrary contained herein, until such time as this Conservation Restriction is approved by the Selectmen of the Town of North Andover and the Secretary of Environmental Affairs 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 Conservation 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 Conservation— Rbstriction 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. -6- Executed under seal this 22nd day of January 1992.Mar e Pitocchelli® Trustee of Phillips Common Realty Trust COMMONWEALTH OF MASSACHUSETTS Suffolk ® ss . Jaanuary 22 1992 Then personally appeared the above-named Marie Pitocchelli and acknowledged the foregoing instrument to be her free act and deed and the free act and deed of the Phillips Common Realty Trust 0 Notary Public Pres n W. Halperin My commission eapi eso6/21/96 -7- ACCEPTANCE OF GRANT The above Conservation Restriction is accepted this day of January 22 19 92 NORTH ANDOVER HISTORICAL SOCIETYn By c L -8- m EXHIBIT 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 Lot Y to a point on the westerly sideline of Osgood 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® " Filed with Essex North Registry of Deeds as Plan # 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 160. 00 ' along Lot Y to a point at Lot 6 , thence S 020-24 '-20" W 270 . 12 ' along Lot #6 , Lot 5 , -and across land designated "open space" to a point at land of Forzse , thence N 87-0-53 '-37 " E 160 . 50 ' along land of Forzse to a point on the westerly sideline of Osgood Street, thence N 020-2 -20" E 257. 49 ' along the westerly sideline o Osgood Street to a point at Lot Y. Said area is depicted as Conservation Restriction Area #2 and contains 42 ,208 square feet land area and is shown on a "Special Permit and Definitive Plan of Phillips Common , North Andover, A, dated October 10 , 1991 , Sheet #2 of 6 , Merrimack Engineering Services , 66 Park Street, Andover, MA 01810 . " Filed with Essex North Registy of Deeds as Plan # \\9,5 MERRIMACK ENGINEERING SERVICES,INC. 66 PARK STREET ANDOVER,MASSACHUSETTS 01810 tl� e s i , W (D CJ EL c"qcn J G 'd, O r w 0 Q9{+C�Q;I 1�f ® sr h C'Z a��o jo .ma:��i a 'ss.I THIS PRESERVATION RESTRICTION b made this 21st day of January 19 92 , by and between RICHARD SEGERSTEDT, PAMELA SEGERSTEDT, KENNETH M., DeVOIE and SHARON DeVOIE, all of North Andover, Massachusetts (hereinafter jointly and collectively referred to as the "Grantor") their 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 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 Reg4-.jter of Historic Places and is listed in the. Old North Andover National Register Historic District; 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 r �`r4`' n� . ..... THIS PRESERVATION RESTRICTION made this 21st day of January 19 92 , by and between RICHARD SEGERSTEDT, PAMELA SEGERSTEDT, KENNETH M.. DeVOIE and SHARON DeVOIE, all of North Andover, Massachusetts (hereinafter jointly and collectively referred to as the "Grantor") their 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 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 Regf:�ter of Historic Places and is listed in the. Old North Andover National Register Historic District; 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 184 to their 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, their heirs, successors and assigns to the Grantee, its successors and assigns and the declaration of covenants by the Grantor on behalf of themselves, their 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 20 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 tted 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 anythingcontained 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 -2- to their 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, their heirs, successors and assigns to the Grantee, its successors and assigns and the declaration of covenants by the Grantor on behalf of themselves, their 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 20 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 dasualty® .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 -2- erected along the western boundary of said Premises subject- totthe 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 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 hist6rical or architectural qualities of such facade without the express written consent of the Grantee; provided, 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 as long as said replacement is done with wooden shutters, and -(j ) the -3- erected along the western boundary of said Premises subject tov;�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 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 hist6rical or architectural qualities of such facade without the express written consent of the Grantee; provided, 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 as long as said replacement is done with wooden shutters, and .(j ) the -3- ;replacement or reconstruction of any element by an .i.tem identical in design and material; provided, 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 and Additional Structures .. The parties hereto acknowledge that the landscaping presently existing on the Premises is unsightly and inadequate. The Grantor hereby declares their 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 -4- ;replacement or reconstruction of any element by an .it.em identical in design and material® provided, 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 and Additional Structures .. The parties hereto acknowledge that the landscaping presently existing on the Premises is unsightly and inadequate. The Grantor hereby declares their 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 -4- 187 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 r. to be' used as p ovided 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 themselves, their heirs, successors and assigns the total cost of such maintenance, repair and administration of the Premises. Nothing herein shall prohibit the Grantor or their 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. Signs . 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- 187 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 themselves, their heirs, successors and assigns the total cost of such maintenance, repair and administration of the Premises ® Nothing herein shall prohibit the Grantor or their 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 . Signs . 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- 7� record or file any notices orinstruments appropriate to assuring the perpetual. enforceability -;of ..this Preservation Restriction; and the Grantor on behalf of themselves and their 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 ofrecording, 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 Restiiction (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- 42 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 po3a er 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, their 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 go 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 ofthe 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- 4 M& 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 . 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. 17. 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. 18 . Grantor ' s Obligation. Grantor ' s obligation hereunder shall only bind the then record owner of the PREMISES. 19 . 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 Gr*antee, 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 -8- J. xl continue to be carried out, and (ii) the assigi.de, 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 . 20 . 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 ,Pthis 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. -9- III WITNESS WHEREOF, I have affixed my hand and seal thi,a a day of _n-AL,a 19 ichard Sege stedt -Pamela Segers dt Kenneth M.DeVoie Sharon DeVoie t COMMONWEALTH OF lam'=SSACHUSETTS Then personally appeared the above-named Diehard Sagerstedt, Pamela Segerstedt® Kenneth M. DeVoie and Sharon DeVoie and acknowledged the foregoing instrument to be their free acts and deeds® before me, L-IL24/az/�'17 �/ , /11 Notary Public ley commission expires : _10- ACCEPTANCE OF GRANT By The North Andover Historical Society The above Preservation Restriction is hereby accepted this 21st day of January 1992 THE NORTH ANDOVER HISTORICAL SOCIETY By L �- It -11- EXHIBIT 10A" i i r a certain parcel of land in �Noxth Andovor, Eamax County, Masnachusastts, located on th* wnst aids of Osgood SLroot, beginning at the north oast corner, at u point: an than wa ntorly sidalino of vagood Street, at a point at. .Lot X-2 on a plan harainafter described, � runnings S 010-27 ' -36" E 141. 07 ' along the westerly sideline of oagood Street to a point, thonoe i S O40-20 ' -28" W 16. 54 ' along the woatarly sideline of j . Osgood Street to a point, thence S 420-41 ' -39" E 9 . 49 ' along the weatorly sideline of ! Osgood Street to a point, thence S 01o�-241-1111 W 50. 36 ' along the westerly aideline of Osgood Stroaat to a point, thence S 220,141 -34" W 53 . 66 ' Tong than westerly sideline of � Oogood Strad to a point, thence . S 020-24 ' -20" W 143 . 64 ' along the westerly sideline o Osgood Street to a paint at Lot X-1, thence N 970-33 ' -40" 14 160, 001 along Lot 'X-1 to a point at Lot 46, thence N 020-241 -20" E 133 . 01 ' along Lot #6 to a point, thence 6 330-36 ' ®17" ?.0. 0 ' along L,ot` ##6 to a point, thence N 710-29 ' -30" W = 31. g6 ' along Lot #¢6 to a point, thence N 010�271 -36" W 32 . 93 ' along Lot ##6 to a point, thence i N 630-31'-4�" W 52 , 29 ' along Lot 06 to a point at Lot Z, i th.oncQ N 070, 61-23" E 2M 991 along Lot Z and Lot #7 to '-a point at Lot X-2 , thence 86®._481 -27" E 247 . 77 ' along Lot X-2 to a point on the w atorly midelino of 08good Street. 'Said parcel contain . 69, 166 aquarm feat land area and. is more particularly shown an L6t Y on at "Spacial permit and Dotinitiva Plan of Phillips Common, North Andover, MA, dated October 10, 19.91, Sheet P2 of W6, Merrimack tngine®ring Sorv.i0ea, 66 Path street, Andover, MA 01910" filed with the Ennex North Registry of Deeds .ma: Plan No. \\°Acj a ' co ca C g Koo O 4w, 0 (Duj a_ - �°� o ei AM „r aSl� t n� other person any right to enter upon the Premi�>as 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 . 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. 17 . 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. 18 . Grantor ® s Obligation. Grantor ' s obligation hereunder shall only bind the then record owner of the PREMISES. 19 . 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 in 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 -8- f pONTN 1 KAREN h.P. NELSON i� 1�0 Main Street, 01845 Director � l„° (508) 682-6483 NORTH ANDOVER BUILDING CONSERVATION s"`""' DIVISION OF PLANNING PLANNING ITY DEVELOPMENT January 29, 1992 MEMORANDUM TO: CHRISTIAN HUNTRESS, TOWN PLIANNER FROM : KAREN NELSON, DIRECTO ` RE: PHILLIPS COMMON RESTRICTIONS As indicated in the attached letter from Michael Morris, it is necessary to obtain endorsement and acceptance of the Conservation and Preservation Restrictions on the above referenced project by the Board of Selectmen. I would like you to prepare a memorandum to the Town Manager from the both of us requesting these signatures. If a meeting before his board is necessary, lets plan on attending to ensure that the -restrictions go through without any confusion. Tom Laudani should be there as well, or one of their representatives. 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 , 1992, the Selectmen voted to approve the foregoing Preservation Restriction granted by Phillips Common Development Corp. to the North Andover Historical Society and recorded in the North Essex Registry of Deeds on January 23 , 1992, in Book 3385, Page 183 , pursuant to M.G.L. Chapter 184 , Section 32 . -12- CERTIFICATE OF CONSERVATION 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 JI 1992, the Selectmen voted to approve the foregoing Conservation Restriction granted by Phillips Common Development Corp. to the North Andover Historical Society and recorded in the North Essex Registry of Deeds on January 23 , 1992 in Book 3385, Page 161, pursuant to M.G.L. Chapter 184 , Section 32 . Selectmen COMMNONWEALTH OF MASSACHUSETTS ss . 1992 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 : -9- PHILLIPS COMMON FIRST AMENDMENT TO MASTER DECLARATION OF PHILLIPS COMMON IN NORTH ANDOVER, MASSACHUSETTS RESERVATIONS AND RESTRICTIONS This First Amendment to Master Declaration of the Phillips Common made this day of July, 1992 by Marie Pitocchelli, trustee of Phillips Common Realty Trust, u/d/t dated September 23 , 1991, recorded with Essex North Registry of Deeds in Book 3385, Page 130 (the "Declarant" which term shall include Declarant' s successors and/or assigns) , being the record owner of certain land located in North Andover, Essex County, Massachusetts. WHEREAS, Declarant established certain reservations and restrictions pursuant to a Master Declaration of Phillips Common dated January 22 , 1992 and recorded with the Essex North Registry of Deeds in Book 3385, Page 153 (the "Declaration") ; WHEREAS, pursuant to Section 3 . 01 (A) (2) Declarant may amend the Declaration for any purpose so long as Declarant is the record Owner of not less than 8 lots; and WHEREAS, Declarant is the owner of 26 Lots and desires to amend the Declaration; NOW THEREFORE, Declarant hereby amends the Declaration as follows: 1. Section 2 . 02 (A) is hereby amended to insert at the end thereof the following: "Nothing contained in this Master Declaration shall be deemed to prevent the Declarant from (i) maintaining a model home, business office and/or construction field office on any of the Residence Lots; (ii) conducting business activities upon any Residence Lots with such number of employees as Declarant shall desire; (iii) maintaining or storing of commercial vehicles or construction equipment (iii) displaying such advertising signs as the Declarant may desire. 2 . Section 2 . 03 (C) is hereby amended to insert after the first sentence the following: "The deed of a particular lot by Declarant shall be conclusive evidence that as of the date of such deed the approvals required hereunder have been granted as to the lot conveyed. " 3 . The following Section 2 . 04 is hereby inserted after Section 2 . 03 : -1- 10, 1. 475. 3 2 . 04 Association of Homeowners. A. After the Declarant has conveyed all 26 Residence Lots the then record owners of 19 or more of the 26 Residence Lots may form an association of homeowners (the "Association") . The purpose of the Association shall be to assume any and all rights and obligations of the Declarant under the Declaration, including without limitation, the right to approve or disapprove any request which requires the written approval of Declarant. B. The Association shall be in such form as voted by the record owners of 19 or more Residence Lots, provided that the formation of the Association shall be in writing, executed by the required record owners of Residence Lots and notice thereof shall be recorded with the Essex North Registry of Deeds on which notice reference shall be made to the Declaration. C. All rights of approval by Declarant pursuant to the Declaration shall expire as to the Declarant, but not as to the Association if and when created, upon the earlier of: (i) six (6) months following the sale of the last Residence Lot by Declarant; or (ii) the formation of the Association as provided herein. If after six (6) months following the sale of the last Residence Lot by the Declarant no Association is formed, as provided herein, no approvals shall be necessary as to matters requiring the written approval of Declarant unless and until such time the Association is formed. D. Notwithstanding anything contained herein or the Declaration to the contrary, so long as Declarant owns any Resdential Lot(s) , Declarant shall have the sole and exclusive right and authority to approve or disapprove any request which requires written approval and so long as Declarant owns any Residence Lot(s) no amendment affecting these rights shall be_ validunless executed by Declarant. E. Nothing contained herein shall prevent the Declarant from assigning its rights as Declarant to a third party which shall succeed to Declarants rights and obligations hereunder. A conveyance of one or more Residence Lot(s) to the assignee of Declarant' s rights and obligations hereunder shall not be deemed to be a conveyance within the meaning of this Article or the Declaration. 3 . Section 3 . 01 (B) is hereby amended to delete the reference to Massachusetts General Laws Chapter 184, Section 28 and insert in its place Massachusetts General Laws Chapter 184 , - Section 27 . -2- 10, 1. 475 . 3 4 . Section 3 . 03 is hereby amended to delete the last sentence and insert in its place: "Declarant' s mailing address shall be 733 Turnpike Street, Suite 311, North Andover, MA 01845 or such address contained on a notice recorded with the Essex North Registry of Deeds on which notice reference shall be made to the Declaration. PHILLIPS COMMON REALTY TRUST By: Marie Pitocchelli, Trustee COMMONWEALTH OF MASSACHUSETTS ESSEX, SS . July , 1992 Then personally appeared the above-named Marie Pitocchelli and acknowledged the foregoing instrument to be her free act and deed as trustee of Phillips Common Realty Trust, before me, , Notary Public My commission expires: -3- 10, 1. 475. 3 SWEPNEY T ATTORNEYS AT LAW 32 CHESTNUT STREET ANDOVER, MASSACHUSETTS 01810 TELEPHONE(508)475.1300 FAX(508)474.0478 IRVING W.SARGENT(1903-1971) ARTHUR SWEENEY(1913-1978) MICHAEL W.MORRIS LAURENCE J. ROSSI DANIEL A. HAYES,JR- January 28 , 1992 MELISSA MORRIS DANISCH Also admitted in N.H. Mr . Chris Huntress Town Planning Dept . Town of North Andover North Andover , MA 01845 Re: Phillips Common Restrictions Dear Chris : I enclose a copy of the referenced restrictions which have been recorded in North Essex Registry of Deeds in Book 3385 , Page 161 (Conservation Restriction) and Book 3385, Page 183 (Preservation Restriction) . I also enclose signature pages for the North Andover Board indicating approval of the restrictions . As you may be aware, we will need the approval of the Board of Selectmen before we can obtain the approvals of the State Department of Environmental Affairs and the Massachusetts Historical Commission. If you require anything further or if I can answer any questions , please let me know. Chris , your help in this matter is greatly appreciated and your valuable advice and assistance certainly made my to k easier . SinP6 M ae W. M ris f MWM/s j m encs . 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 1 1992, the Selectmen voted to approve the foregoing Preservation Restriction granted by Phillips Common Development Corp. to the North Andover Historical Society and recorded in the North Essex Registry of Deeds on January 23 , 1992, in Book 3385, Page 183 , pursuant to M. G.L. Chapter 184 , Section 32 . -12- CERTIFICATE OF CONSERVATION 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 1 1992 , the Selectmen voted to approve the foregoing Conservation Restriction granted by Phillips Common Development Corp . to the North Andover Historical Society and recorded in the North Essex Registry of Deeds on January 23 , 1992 in Book 3385 , Page 161, pursuant to M.G.L . Chapter 184 , Section 32 . Selectmen COMMNONWEALTH OF MASSACHUSETTS ss . 1992 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 : -9- •s4 g tl ..r i P" THIS PRESERVATION RESTRICTION .� ® ' made this 21st day of January , 19 92 , by and between RICHARD SEGERSTEDT, PAMELA SEGERSTEDT, KENNETH M. DeVOIE and SHARON DeVOIE, all of North Andover, Massachusetts (hereinafter jointly and collectively referred to as the "Grantor" ) their 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 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 is listed in the. Old North Andover National Register Historic District; 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 their 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, their heirs, successors and assigns to the Grantee, its successors and assigns and the declaration of covenants by the Grantor on behalf of themselves , their 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 2D 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 -2- 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 onsistent 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 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 hist6rical or architectural qualities of such facade without the express written consent of the Grantee; provided, 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 as long as said replacement is done with wooden shutters, and (j ) the -3- replacement or reconstruction of any element by an -item identical in design and material; provided, 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 and Additional Structures . The parties hereto acknowledge that the landscaping presently existing on the Premises is unsightly and inadequate. The Grantor hereby declares their 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 t'o 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 -4- 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 themselves, their heirs, successors and assigns the total cost of such maintenance, repair and administration of the Premises . Nothing herein shall prohibit the Grantor or their 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 . Signs . 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 themselves and their 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 Y 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, their 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- 190 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 . 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. 17 . 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. 18 . Grantor ' s Obligation. Grantor ' s obligation hereunder shall only bind the then record owner of the PREMISES. 19 . 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 . 20 . 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 I 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. -9- e c IN WITNESS WHEREOF, I have affixed my hand and seal this day o1 ��. (�{/ft�� 19 ichard Sege sedt Pamela Seger$ dt Kenneth M.DeVoie Sharon DeVoie COMMONWEALTH OF MASSACIiUSETTS { Then personally appeared the above--named Richard Segerstedt , Pamela Segerstedt, Kenneth M. DeVoie and Sharon DeVoie and acknowledged the foregoing instrument to be their free acts and deeds, before me, Notary Public My commission expires : j rl f -10- ... _ .-A sr ACCEPTANCE OF GRANT By The North Andover Historical Society The above Preservation Restriction is hereby accepted this 21st day of January 1992 a THE NORTH ANDOVER HISTORICAL SOCIETY c By It _ -11- ® EXHIBIT "A" a cartain parcel of land in North Andover, Eaamax County, � Massachunotts, locatod on the wont aide of Osgood Street, beginning at the northeast corner, at a point on the wo tarly sidalino of Osgood street, at a point at Lot X-2 on a plan herainaft r described, runnings 8 010-271 -3611 E 141. 071 along the westerly sideline of Osgood Street to a point, thonoe 5 o4o-201 -2811 W 16. 541 along the weEatarly sideline of Osgood Street to a. point, thence S 420�411 -5911 E 9. 491 along the wentorly sideline of Osgood Street to a point, thence S 01 W 50 . 281 along th,a westerly aidaline of Osgood Stroat to a point, thence S 220-141 -3411 W 153 , 681 along the westQrly sideline of Osgood Street to a point, thence i S 020-241 -2011 W 143 . 64 , along the westerly sideline o Osgood Street to a point at Lot X-1, thence N 87 0-351-4011 W 160. 001 along Lot X-1 to a point at Lod. 06, thence r N 020-24 1 -2011 E 133 , 011 along Lot ##6 to a point, thence S 880-361-1711 W 20. 101 along Lot-- #f 6 to a point, thence N 710-291 -3011 W 31. 961 along Lot #}6 to a point, thence N 010-2-71-3611 W 32. 931 along Lot 1R6 to a point, thence N 83°-311-4811 W 52 . 291 along Lot §6 to a point at Lot Z, thence N 07 0-561 -2811 E 200 , 991 along Lot Z and Lot #7 to a point at w Lot X-2 , thence 86a_401 -2781 E 247 , 771 along Lot X-2 to a point on the wo terly sideline of Osgood Str®et, j Said parcel contain . 89 , 165 aqi.Mra feat land aroa and is more particularly shown an Lot Y on at "Special permit and Definitive Plan of Phillips Common, North Andover, MA, dated Octob r 10, 1991,. Sheet 02 of #6 , Merrimack tng1nQaring Sarviaea, 66 Park Street, Andover, MIS 0181011 filed with the EnmGx North Registry of Deeda aaa Plan No. `® . , _ r r , ESSEX i?E_G Q� LEFCS s, FrO {!H GIST Jv ;d, 1 0 0 sy. -�Y 5 ® _ - r.-.a<. E. CD r- co -fir *,i.� t.: -Cl• - . - jJf1 1 a a CONSERVATION RESTRICTION -' To North Andover Historical Society Marie Pitocchelli , Trustee of Phillips Common Realty Trust, under declaration of trust dated September 23 , 1991 and to be recorded in the North Essex District of the Registry of Deeds herewith ("Grantor" ) 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 L 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 by law. 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, 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 consistent with the regulations of the North Andover Old Center Historic District; 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 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 48) 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® 2 V33 B. Reserved Rights . 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 shbuld 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. D. 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) L by the ratio of the value of this Restriction at the time of -3- 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 -4- 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 addition to, and not in limitation of, any other rights and remedies available to Grantee. Grantor covenants and agrees to reimburse Grantee all reasonable costs and expenses (including 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 Beyond 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 f-pllowing 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 " andunder Section 32 of Chapter 184 of the General Laws a's an eligible donee to receive this Conservation Restriction directly. Grantor and Grantee -5- intend that the restrictions arising hereunder take effect upon L 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. 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. K. Estoppel 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. L. Easement in Gross and Appurtenant in Absence of Governmental Approval. Notwithstanding anything to the contrary contained herein, until such time as this Conservation Restriction is approved by the Selectmen of the Town of North Andover and the Secretary of Environmental Affairs 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 Conservation 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 Conservation- R6striction 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. -6- 67 AL ! _ Executed under seal this 22nd day of January , 1992. 1 i Mare Pitocchelli, rustee of { Phillips Common Realty Trust f COMMONWEALTH OF MASSACHUSETTS Suffolk , ss . Jaanuary 22 1992 Then personally appeared the above-named Marie Pitocchelli and acknowledged the foregoing instrument to be her free act and deed and the free act and deed of the Phillips Common Realty Trust 9 Notary Public Preses n W. Halperin My commission expi : 6/21/96 -7- ACCEPTANCE OF GRANT The above Conservation Restriction is accepted this day of January 22 19 92 NORTH ANDOVER HISTORICAL SOCIE By c L i' -8- t 4 C 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 Lot Y to a point on the westerly sideline of Osgood 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. " Filed with Essex North Registry of Deeds as Plan # \Oq� 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 160 . 00 along Lot Y to a point at Lot #6 , thence S 020-24 -20 " W 270 . 12 ' along Lot #6 , Lot #5 , .and across land designated "open space" to a point at land of Forzse , thence N 87,0- 53 '-37 " E 160 . 50 ' along land of Forzse to a point on the westerly sideline of Osgood Street, thence N 020-24 '-20" E 257 .49 ' along the westerly sideline of Osgood Street to a point at Lot Y . Said area is depicted as Conservation Restriction Area #2 and contains 42 ,208 square feet land area and is 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 . " Filed with Essex North Registy of Deeds as Plan # !!c�`1 MERRIMACK ENGINEERING SERVICES.INC. • 66 PARK STREET ANDOVER,MASSACHUSE7S 01810 ). Ln ESSi:t RF.(;. EEDS h;1r?1ii GIOF D ST. 10E_"....... _� 1 I j i �xo � >U,� r r Lo �p PLANNINGKAREN H.P.NELSON Town of 120 Main S',,reet, 0i845 BUILDING ITANNNG `i Y E NT HEMORANDUM TO ; Cne RI..v ayyV.AN HUNTRESS, aOY434 s ...W' b7":®u.IN FROM : KAREN NELSON, DIRECTOR- RE: PHILLIPS COMMON RESTRICTIONS ,�-�z.' � �•�-?r a�•Y xe, �.*�, :.,�:-'E ?> � �# z: ;r����-���-:�-s --s.?.�?-'�' "-'�-��'�-'a--�°.� �;.--m.v:.w � s;�--,�"- =z• As indicated in the attached letter from Michael Morris. it is necessary to obtain. endorsement .,e a..s d acceptance o'i the Conservation reierenced project by the Board of Selectmen i would like You to ,prepare a memorandummemorandumto thea•ck�n Manager ��.m thethe �'both :ol usrequesting' th sue:' signatures. 1i a meeting tirQ'p before his board iw. KAREN H.P. NELSON Town of 120 Main Street, 01845 Director (508) 682-6483 NORTH ANDOVER BUILDING CONSERVATION DIVISION OF PLANNING PLANNING & COMMUNITY DEVELOPMENT January 29, 1992 MEMORANDUM TO: CHRISTIAN HUNTRESS, TOWN PL NNER FROM : KAREN NELSON, DIRECTOF60� R-'E-. PHILLIPS COMMON RESTRICTIONS As indicated in the attached letter from Michael Morris, it is necessary to obtain endorsement and acceptance of the Conservation and Preservation Restrictions on the above referenced project by the Board of Selectmen. I would like you to prepare a memorandum to the Town Manager from the both of us requesting these signatures. If a meeting before his board is necessary, lets plan on attending to ensure that the restrictions go through without any confusion. Tom Laudani should be there as well, or one of their representatives. KAREN H.P. NELSON 10 Town of 120 Main Street, 01845 Director NORTH ANDOVER (508) 682-6483 BUILDINGencHus CONSERVATION DIVISION OF PLANNING PLANNING & COMMUNITY DEVELOPMENT Na r c NEMORANDUM 7Cj JAMES F. GORDON, TOWN NANIACZE ' 11,R71 N D 1 R,E C T H'A R EIN HELSOR, F711-1-1-11 7 F'2; C:0 Attached please find the following documents to be signed by the Board of 2-leieCtMen as they Pertain to the Phillips --'0'nmo1-1 ap�rty. Certificate of Preservation Restriction Approval ipage 12) Certificate of Conservation Restriction Approval {page 9) It was the Town Flanner ' s understanding that sciqnatureE were not needed until April 15th, however, Attorney Norris spoke with Chris today indicating signatures are. needed by this Friday, April 3, i9921. Therefore, if time permits, the Board of Selectmen should vote to sign these two pages at their meeting this. evening. Attorney Milre Morris will attend this meeting to provide you and the Board with any additional information you need. Our intention was to bring this before you for next weeks meeting. Kindly let us know if this can be inserted in the agenda. cc Christian Huntress, Town Planner lO NOR Try gryO .. ,L, KAREN H.P.NELSON o °pTown of 120 Main Street, 01845 Director « NORTH ANDOVER; (508) 682-6483 BUILDING ;9s CONSERVATION ACHus DIVISION OF te Q PLANNING PLANNING & COMMUNITY DEVELOPMENT MEMORANDUM TO: Joel B. Bard, Kopelman & Paige, P.C. FROM: Christian C. Huntress, Tod'Y4 nner DATE® April 3, 1992 ® Phillips Common, Conservation/Preservation Restrictions As per your conversation with James P. Gordon, Town Manager, this afternoon, you will find enclosed a copy of both Preservation and Conservation restrictions for the above referenced PRD Subdivision. The North Andover Historical Society is attempting to secure these restriction in perpetuity, and has petition the Massachusetts Historical Society . for endorsement. As a requirement to that petition, the Board of Selectmen have been asked to approve these restrictions pursuant to M.G.L. Chapter 184, Section 32 . I apologize for this request with such short notice, but the Selectmen will be reviewing this issue for endorsement on Monday April 6, 1992 . I would appreciate any response you may have by that time. Please feel free to contact my office with any questions or concerns. Thank you. cc: James P. Gordon, Town Manager Karen H.P. Nelson, Director DPCD. ECLMVE OFFICE OF ENVIRONMENTAL AFFAIRS ` DIVISION OF CONSERVATION SERVICES QA� 100 Cambridge Street Boston. MA 02202biUNICIPALiTY' 617/727.1552 NUtul ASSIGNMENT.".:::. (A9®ncy;. ly)... CONSERVATION ES IC ON APPILICATION FORM a Pursuant to the provisions of G.L.e. 184,a.32,the Secretary of Environmental Affairs is hereby requested to approve a conservation restnction as described below. A. GENERAL INFORMATION t. GRANTOR: Marie Pitocchelli Trustee (Name) Phillips Common Realty Trust (Address) c/o Levy & Halperin, 50 Milk St. , Boston , MA o2109 617-350-0405 (ie►.No.) 2. GRANTEE. North Andov r Hi G on _al ^oc�i Pt y (Name) 153 Academy Road . N. Andov r MA 01810 (Address) Caro Mi r^haiub , Exerziit•i vP Director (T®I.No.) (Contam Person) 3. TYPE OF RESTRICTION: aConservation only b. Joint reslawbon: type r-nnGarvat i nn (agricultural,historical,conservation) NOTM- E the gramse is a must be provided tad ItIsaq organizaboiri in accordance wrth G-L c. 180&4( )or n)and the LFLS 1(e)(3) The Division aiso rasionovs - ht tio mvww the orgarwbabont If aq must defim the masom tor preserving Me property and cartIty tud the nowicbm is in the public linteireft(Pletew refer to page ). ® r But It should be d. ' a d It . ictingumhed at the oom from an agricultural presiarombon restnobon whch is approved by the Coommiancriar of Food and Agricultum ior the ,t h' 310, Boollain,MA 116 and trom a watershed priesorvatIm nestriiedon which I:approved by thei Commissiorm of the Metropoutan It is posiable for a nestnction to fit Into mom Umn orm categary,requiring mom thm am approval. U a Joint the approval procom been started with er&w Va Coommoskmem of Food and Agneutturo,MDC Knitoincal Yes No , ' a. Charitable contribution: Yes ,,r No Do you intend to claim an iRS income tax deduction?Yes—No--X b. Required as part of municipal or state permitting process- Yes X No 1. Is this restriction required by a M.G.L. C.40As.9 special permit?Yes No— (please attach a copy of the permit(s) as an exhibit) 2. Is this restriction required by M.G.L. C.131,s.40 Wetlands Order of Conditions? Yes No_ (please attach a copy of the Order of Conditions) C. Other: please explain (for example,sale of a C.R.to a public agency): d. is this a perpetual festnction?Yes-y—No_ If less than permanent for how may years: yrs. B. PUBLIC BENEFIT 1. Is the restriction for the preservation of land areas for outdoor recreation by, or the education of,the general public? Yes—No— passive recreation is permitted 2. is the restriction for the protection of a relatively natural habitat of fish,wildlife,or plants,or similar ecosystems? Yes No 3. Is the restriction for the preservation of open space (including fam-Aand and forest land)where suen preservation is a. pursuant to a clearly delineated federal,state,local governmental policy,and will yield a significant public benefit? Yes_y No_ b. for the scenic enjoyment of the general public and will yield a significant public benefit? Yes X No 4. Is the property historically significant? On@ that masts National Register Criteria or is within a registered historic district or contributes to the integrity of an historic building or property? Yes-X—No S. Other public benefit? Yes No if yes,please explain) NCTM- the tem fair deductibitlity undw tft Internal Rievaiiinn Service Code Seclion 170(h)and the ReguLabons promukiated ftwounder,or a pavais leftac ruing by the WrtwnW FWvenue Serma shall be deemed surtficient for establishing such Reigardl,&=of the iintem at thre grantat'a gft the Secristairys dartairminaticin at pubfic interest will be dependent upon how wed the applicant:deffminsawas public beneft The above tests(section B)am sufficient demonstristiorm of the pubL= intevest howevw,gniuTtom should be advised that Vw Secretary resenovs,the right to require modificabons to Un cwmwva=m Mstr=bon whom in hislhw opnim VM roUgled rights a&mwsly impact the public Interest or naturial resource values of the prop"or when the docurtwKit is unpnMxwty drafted. ' 3. GRANTOR'S INTENT: ' C. SITE DATA Location: 1. MunidpalityNorth Andover street Lr,,,,n N&S of 168 Osgood St. 2. Grantor's Registry of Deeds Bk. Page #- 3. Assessors Map* Lot* 4. New Site: X Addition to existing restricted area: _(please specify) Zoning: Commercial Industrial Residential (check all that apply) Title: Does applicant have clear title? Yes No Assent of mongagee(s) is required. If no,pl® explain: Encumbrances: is the property encumbered by any easement(s)? Yes X No Pl® explain: jindarqr-ound I]tj ],j tv easement as shown on survey. Located on northern parcel . _ Geographic information: 1. Total acres covered by restncbon: 9 6 7 a 9 5 q f t 2- Cover acres in A. Upland Forest 2 B.Open (field,pasture,etc.) C.Vegetated Wetland D.Water 3. Topography-.acres in A. Flat N B.Hilly_ C.Rolling D.Mountains 4. Waterfront feet on A.Ocean B. River C.$tream D.Lake Rea"id® at® General Information: 1. Are there any improvements existing on the property or to be permitted after execution of the C.R.? Yes X No—If yes,pl® describe in detail: The construction of a stonedust walkway fDL_qedestrian use. 2- Is the property currently under any of the preferential real t®tax assessment programs? Yes—No X If yes,which one: c.61 c.61A—c.61B If the restricbon Ims in ffxwe than am communirty,Vw She Daft form must be completed for VW portion of the riestnic6on wid-din Sam cornirmwaty. 3 3. If the property is under agricultural use, is the soil considered prime or of statewide agricultural significance?-. Yes- No x (If yes, USDA Sail Conservation Service data must be provided.) 4. Is the property adjacent to any public or quasi-public land or buildings? Yes X No Describe briefly: _pjrgr_tly across Osgood St. from Parson Barnard House , a prperty of the North Andover Historical Society, and open to thel. puhlic during scb2-dill-ed—,IZisit-i= -hc)urs . 5. Does the property lie within an historic district, include an archeological or rare species wils, fall within a Department of Environmental Management designated scenic landscape, river,or within an Executive Office of Environmental Affairs designated Area of Critical Environmental Concern.a Zone It of a public water supply,etc.? Please explain: Located in the North Andover Old Center Historic District® Zr.mximata to the Phil lins Manse , the Parson Barnard HQIISe , the First Burying Ground and the entire Academy Road and Old Center historical areas ® 6. it public access be allowed? Yes X_No If yes,explain any limitations,type,etc.: .,f,Qr_ passive recreation(walking) only . ............. ...... Prepared br. Davis Cherington, Consultant Address: 11 Milldam Lane , Concord MA 01742 508-371-1069 islephone number- 4 ATTACHMENTS: Enclosed a. Conservation Restriction (required) Yes® No — b. USGS Topographic map with area identified thereon (required) Yes® No— C. Photographs (required)Aerial (if available) Yes® No— d. Applicable federal,state or local plans, programs (excerpts therefrom) or zoning ordinances,it appropriate Yes® No— ✓a. Survey,plot map,or sketch plan, (required) Yes— No— f. Spociial reports,studies,if available Yes— No— g. Natural resource inventory, if available Yes® No— h. Wetlands Order of Conditions C.131,s.40,if applicable Yes— No— ✓i. C-40A.s.9 Special Permit, if applicable Yes / No j. I.R.S.letter ruling,if applicable Yes— No k. Charitable status documentation,if applicable Yes— No I. Assent of mortgages(s),if applicable Yes— No m. USDA Soil Data,if applicable Yes— No I/ n. Other(please specify) Yes— No NOTES. The consoorvaboin nabictim must be pri"mrod in a form saiMble for recording and be approved and signed by the grvintcir, gnantm,and municipal otficial(s). The appficaM may wish to subritt a draft at the consiarvabon,antvctim docLOMM Ior a derommirutdon as W whother it is sciospudge for appruvW by the Seenytary. This procedure is recommended In situabons in which the gift Iz complex or the appikaw needs guidance in draftnog an acceptablIs,document. RM;ardlaes-twffw the mpphcant figs a dradt or excuted conseivaboin rosa=don afl requiriod attachments must be submitted for revow. The Drvw=of Consairvabon Senkina,as part of ft nm=rds rebtrition program and in conjuncbon with Vw Massachusetts Staft Archivi*4 wiU rutain thei grarme's be=6ine data in the State Archhma=no cosL Gnmytoiss need only subrnrt clupticame ongiruft of the cl=mwns and photograph roges"m with the applic:dion. The documents will be pennanently pmeerved in the State A=ftlivaa,2M Mcirrissay Boulievard,Boston, MA 02125 and will be available for viewing or roccivety as needed. 5 MUNICIPAL COMFICATION (We)the unaersigned Conservation Commission of North Andover, Mass. (the cenifier/holder) hereby certity that the proposed conservation restriction is in the public interest in that it icescrioe public benefit): This proposed conservation restriction serves a direct benefit to the inhabitants of the Town of North Andover as the property will now be preserved from adverse- future change. The property is also located wit a Historic District of great concern to the Town, the allowed uses of passive recreation and conservation will provide for the scenic enjoyment of the general public and will yield a significant public benefit. Date: �--= Signed: c _ This OutfCOM bY ths CWMWVffWn COMMMM My be submrftd aepwWely from the applicabon and filed submmsion at tM exisoutiaid coneeirvabon fasaxton, of the executed document. must be apWaved and coMflaid by th®appropriate important officiala of bath munKapabbeei. P EEiVINY & SARGINXT ATTORNEYS AT LAW 32 CHESTNUT STREET ANDOVER, MASSACHUSETTS 01810 TELEPHONE(508)475-1300 FAX(508)474.0478 IRVING W.SARGENT(1903-1971) ARTHUR SWEENEY(1913-1978) MICHAEL W.MORRIS LAURENCE J. ROSSI DANIEL A. HAYES,JR' January 28 , 1992 MELISSA MORRIS DANISCH `Also admitted in N.H. Mr . Chris Huntress Town Planning Dept . Town of North Andover North Andover, MA 01845 Re : Phillips Common Restrictions Dear Chris : I enclose a copy of the referenced restrictions which have been recorded in North Essex Registry of Deeds in Book 3385 , Page 161 (Conservation Restriction) and Book 3385 , Page 183 (Preservation Restriction) . I also enclose signature pages for the North Andover Board indicating approval of the restrictions . As you may be aware, we will need the approval of the Board of Selectmen before we can obtain the approvals of the State Department of Environmental Affairs and the Massachusetts Historical Commission. If you require anything further or if I can answer any questions , please let me know. Chris, your help in this matter is greatly appreciated and your valuable advice and assistance certainly made my to k easier . PIC M ae W. M ris MWM/s j m encs . �NOFTH KAREN H.P. NELSON o? °9 1 %1 in Street, 01845 Director Town (b08) 682-6483 NORTH ANDOVER BUILDING *;''•:o ",ty. CONSERVATION SSAcHUSE DIVISION OF HEALTH PLANNING PLANNING & COMMUNITY DEVELOPMENT April 2 , 1993 Melissa Morris Danisch, Esquire Morris, Rossi & Hayes 32 Chestnut Street Andover, MA 01810 Re: Phillips Common Conservation and Preservation Restrictions Dear Melissa, Enclosed are the original Conservation and Preservation Restrictions for Phillips Common signed by the Board of Selectmen of the Town of North Andover. Also enclosed are copies of the warrant articles for town meeting concerning the acceptance by the town of the open space created by the Phillips Common Subdivision. If you have any further questions please do not hesitate to call me at 682-6483 ext. 24 . I apologize for the delay. Happy Spring ! Very Truly Yours, Kathleen EBradley Town Planner CC. Karen Nelson, Director PCD Planning Board File Phillips. 4 CERTIFICATE OF CONSERVATION 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 Marck 7— 1 1993 , the Selectmen voted to approve the foregoing Conservation Restriction granted by Marie Pitocchelli , Trustee of Phillips Common Realty Trust to the North Andover Historical Society and recorded in the North Essex Registry of Deeds on January 23 , 1992, in Book 3385 , Page 161, pursuant to M.G.L. Chapter 184 , Section 32 . COMMONWEALTH OF MASSACHUSETTS Essex, ss . 1993 Then personally appeared the above-names Selectmen and acknowledged the foregoing instrument to be their free act and deed, before me . '::��I�tt ry Publl'c'' My commission expiresA 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 1993 , the Selectmen voted to approve the foregoing Preservation Restriction granted by Richard Segerstedt, Pamela Segerstedt, Kenneth M. Devoie and Sharon Devoie to the North Andover Historical Society and recorded in the North Essex Registry of Deeds on January 23 , 1992, in Book 3385 , Page 183 , pursuant to M.G.L. Chapter 184 , Section 32 . COMMONWEALTH OF MASSACHUSETTS Essex, ss . 1993 Then personally appeared the above-names Selectmen and acknowledged the foregoing instrument to be their free act and deed, before me . ��lvota Pub i f—C-1/ L/ My commission expir/es ARTICLE ACCEPTANCE OF PARCEL OF LAND ENTITLED PHILLIPS COMWN. To see if the Town will vote to accept a parcel of land located on Osgood Street and Massachusetts Avenue shown on a plan entitled "Phillips Common" as referred to as "Open Space" dated October 10, 1991, revised November 18, 1991, by Merrimack Engineering Services, Inc. , 66 Park Street, Andover, MA 01810, containing sheets one through six (1-6) filed with the Essex North Registry of Deeds, as Plan number 11998. Brian Lawlor and Others DRAFT March 25, 1993 74 ARTICLE ® ROAD ACCEPTANCE - PHILLIPS COMMON. To see if the Town will vote to accept the roadway as a public way, namely Phillips Common, as shown on sheet 2 of 6 of a plan entitled "Special Permit and Definitive Plan, Phillips Common, North Andover, Massachusetts, owner and Developer: Phillips Common Realty Trust, P.O. Box 6700, No Andover, Massachusetts, 0184511,1 dated October 10, 1991, revised November 18, 1991, by Merrimack Engineering Services, Inc. , 66 Park Street, Andover, MA 01810, containing sheets one through six (1-6) , filed with the Essex North Registry of Deeds as Plan Number 11998. Located from Station - to Station 16-94-51. Brian Lawlor and others DRAFT March 25, 1993 76 LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. KAREN V. KELLY DONALD G. PAIGE DEBORAH A. ELIASON ELIZABETH A. LANE ATTORNEYS AT LAW JEANNE S. MCKNIGHT JOYCE FRANK JUDITH C. CUTLER JOHN W. GIORGIO 101 ARCH STREET ANNE-MARIE M. HYLAND BARBARA J. SAINT ANDRE RICHARD BOWEN JOELB. BARD BOSTON, MASSACHUSETTS 02110-1137 CHERYL ANN BANKS EVERETT J. MARDER BOSTON OFFICE DAVID J. DONESKI BRIAN W. RILEY JOSEPH L. TEHAN, JR. 1617) 951-000 7 KIMBERLY A. HOLLIDAY WILLIAM HEWIG III FAX (617) 951-2735 MARY L. GIORGIO THERESA M. DOWDY NORTHAMPTON OFFICE KATHLEEN E. CONNOLLY PATRICK J. COSTELLO 14131 585-8632 JOHN G. GANNON WORCESTER OFFICE IS 08) 752-020 3 June 11, 1993 VIA FACSIMILE 1-508-682-2996 Ms. Kathleen Bradley, Town Planner North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Phillips Common Conservation Restriction - Household Garden Dear Ms. Bradley: You have requested an opinion as to several questions with respect to "open space" land owned by the Town, a portion of which (the "Restricted Area") is subject to a conservation restriction (the "Restriction") held by the North Andover Historical Society (the "Historical Society") . I have summarized your questions as follows: 1. Who is in charge of maintaining the historical nature of the Restricted Area? Based on my review of the Restriction, it is my opinion that there is no obligation to maintain the "historical nature" of the Restricted Area. In my opinion, the Restriction is a conservation restriction, not a preservation restriction, as defined by G.L. , c. 184 , §31. It is my further opinion that the Historical Society is the holder of the Restriction and, as such holder, has the right, but not the obligation, to enforce the Restriction to ensure that the Restricted Area is "retained in perpetuity in [its] natural and open condition and to prevent any use of the [Restricted Area] that will significantly impair or interfere with the conservation values of the [Restricted Area] " (second paragraph of the Restriction) . It is my opinion that the word "open" means that no buildings or structures may be erected on the Restricted Area except as permitted by the Restriction. It is my further opinion that the use of the word "natural" means that the Restricted Area may be left in its natural state. PRINTED ON RECYCLED PAPER KoPELIVIAN AND PAIGE, P.C. Ms. Kathleen Bradley, Town Planner June 11, 1993 Page 2 The Town, as the owner of the Restricted Area, is obliged to comply with the Restriction. It is my opinion that the Town could comply with the Restriction by leaving the Restricted Area in a natural state, even if that means that the Restricted Area becomes overgrown. It is my further opinion that the Town as landowner has the right to maintain the Restricted Area. This includes, - but is not limited to, the right to remove dead or dying trees, to mow meadows and to thin coniferous plantations (Section B. (1) of the Restriction) . It is my opinion, however, that the Town does not have any obligation to so maintain the land. If the Town wishes to maintain the land, the Town may assign whatever Town department seems most suited for the task. 2 . Does the Restriction permit a vegetable garden? It is my opinion that, although there is some ambiguity, the Restriction permits a domestic vegetable garden. Any doubt may be resolved by obtaining the permission of the Historical Society for the garden. Section A. (3) of the Restriction prohibits placing soil "or other substance or material whatsoever11 on the Premises, but this prohibition is in the context of prohibiting dumping. It is my opinion that this would not prohibit bringing in and using soil or enriching materials such as peat, compost or manure that a domestic vegetable garden would require. Section A. (4) of the Restriction prohibits " [c]utting, removing or otherwise destroying trees, grasses or other vegetation, except as provided in paragraph B below. " Paragraph B of the Restriction permits "the removal of dead or dying trees, mowing of meadows and thinning of coniferous plantations. " It would seem that these sections read together would prohibit the digging up of existing grasses or other vegetation in order to prepare a vegetable garden, except for another Section of the Restriction which implies that "ground disturbance" for a "domestic garden" is permitted. Section J. of the Restriction requires prior notification and conferral with the Historical Society prior to any excavation or ground disturbance, "with the exception of spading, roto-tilling or cultivating a domestic garden. " KoPELIVIAN AND PAGE, P.C. Ms. Kathleen Bradley, Town Planner June 11, 1993 Page 3 3 . From whom would the owners of the historic home located on Lot Y need to get permission to have a garden on the Restricted Area? The homeowners would need to get the permission of the Board of Selectmen to have a garden on the open space land, whether within the Restricted Area or on another part of the open space land. As stated earlier, if the Board of Selectmen wishes to obtain permission for a garden, in order to resolve the ambiguity in the Restriction, such permission would be obtained from the Historical Society, as the holder of the Restriction. The Historical Society would be permitting the Town, as owner of the Restricted Area, to issue a license to the homeowners to have a garden on the Restricted Area. The Board of Selectmen may wish to require the homeowners to seek such permission from the Historical Society, prior to or as a condition of any license granted by the Board of Selectmen for the garden. The homeowners would need a license from the Town to have a private garden on Town-owned land. It is my opinion that a license, being revokable, is not an interest in land that requires the Town to issue a request for proposals under G.L. , c. 30B (the Uniform Procurement Act) . The license might provide that the homeowners have certain responsibilities to maintain the open space land, including the Restricted Area, and should provide indemnification to the Town for any liability arising from the homeowners' use of the Town's land. 4 . What documents, if any, does the Town need to solidify the acceptance of the open space areas throughout the site? The Town has voted pursuant to Article 52 of the 1993 Annual Town Meeting to accept the open space land a shown on a certain plan. If the open space land has not already been deeded to the Town, and the deed recorded, this would need to be done. The present owner of the open space land would execute and acknowledge a deed to, "the Inhabitants of the Town of North Andover" of the open space land, shown as a separate lot or lots on a recorded plan, and would deliver the deed to the Town for recording. Assuming that the deeding of this land was required as part of a Planning Board covenant, the Planning Board should require the grantor to provide an attorney's certification that the Town will receive good title, with no liens or encumbrances KoPELIVIAN AND PAGE, P.C. Ms. Kathleen Bradley, Town Planner June 11, 1993 Page 4 except for the Restriction. If there are mortgages or other liens, the present owner must also deliver to the Town for recording a partial release of each mortgage or lien as to the open space area. The Town will not have good title to the open space area unless it is released from any mortgage or other lien, because, if there is a foreclosure of the mortgage and an auction sale of the property, the Town would lose the property. A title certification would also reveal the priority of the Restriction with respect to any mortgages. If you have further questions regarding this matter, do not hesitate to contact me. Very truly yours, Jea ne S. McKnight JSM/paz cc: Board of Selectmen Town Manager KAREN H.P.NELSON own 120 Main Street, 01845 T of Director (508) 682-6483 NORTH ANDOVER BUILDING CONSERVATION Bs,CHU9E DIVISION OF HEALTH PLANNING PLANNING & COMMUNITY DEVELOPMENT June 30, 1993 Mr. Ken DeVoie 168 Osgood Street North Andover, MA 01845 Re: Phillips Common Conservation Restriction - Household Garden Dear Mr. DeVoie, Enclosed for your review and use is a copy of the legal opinion rendered by our town counsel regarding the creation of a household garden in the Open Space area deeded to the Town as part of the Phillips Common subdivision approval. Also enclosed is a copy of an agricultural use license that was issued by the town for farming of a* portion of the Mazurenko Farm Conservation Area. Although the farming that is permitted under the enclosed license is on a much larger scale than what you have proposed, it should give you a good starting place for drafting a license for a household garden. As we discussed, you will need permission from the Board of Selectmen to have the garden. It would be helpful if you also had a letter of support from the Historical Society. when you have drafted a proposed license, please send it to me for my review and I will pass it along to our town counsel. If you have any further questions please do not hesitate to call me at 682-6483 ext. 24 . Sincerely, Kaqt �leen �-9R* Town Planner Town of NorthAndover NaRT., OFFICE OF 3?0 't o ,,rewoL COMMUNITY E IJ P ENT AND SERVICES ° 146 Main Street North Andover, Massachusetts 01845 WILLIAM T. SCOTT SS CHUSE Director October 9 , 1996 John Marone.y 103 Phillips Common North Andover, MA 01845 RE: Removal of Red Pines in Open Space Land Dear Mr® Maroney, At the October 2 , 1996 North Andover Conservation Commission public hearing, I discussed.:;:.your inquiry regarding the removal of real pines on Open Space land. I presented pictures of your property to the Commission and discussed your reasoning for removing the pines . The Commission unanimously agreed that they would not allow removal of the pines located on Open Space Land unless you presented written evidence that the pines were diseased and posed a safety hazard to your house and property. You may remove any pines located on your property, 'however any removal of vegetation located on Open Space land requires approval by the Conservation Commission. If you have any questions regarding this matter, please feel free ' to contact me at 688-9530 . Sincerely, ulie :Parrino Conservation Associate cc Michael D. Howard, Conservation Administrator Kathleen Colwell, Town Planner NACC BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688�9535 �., j- 1 : KNOW ALL MEm BY THESE PRESENTS WITNUNtTA thBi- AeKainafter referred to as the Grantor ) , for paid , mnty �n (hereinafter Tef= red to as the Grantee) with quitclairl,, c0yenant& tht Pelpotual M exclusive right and easement to usc- the proper ty de a ribed on the attanbed Schedule A for recreational and horticultural purposea including the construction and maintenance of walkways , fences, trellisam and other structuyes associated with New England colonial qardentp' and also incluji0q , but not limited to , such antivities a,,s 6eading , taking , nowmg, fertilizing, pruning, trAnsplanting and Planting of tlawers , Shrub& and trees and all other activities generally coneistent with the may ntanance of lawns , shrmbs nardens and for access and egress to the garage lovern" PAMP, naid easement nran Also with he fh ee d cl h t uM easement from time to tine to pass and vepass over , across and upon said land of Me Grantor as is reasonable nnd necesgary in. order to repair. restore or reconstruct said garage and Enr nil other uses reasonably consistent with the permitted use of t", garage anC with the permitted recreational M hnrticultural, use in the event of substantial destrucKon of the qarag,,,,, fire at other casualty, it may be replaced with a similar structure in substantially the $= location provided that th'L.- North Andover KAMM Society or its successors 3rd Aysigr ,,, aPprove the Plans and location n i writing , in any even" -1 ]. repairs . restorations or reconstructions and any and a" Wr �asts a=ciated with the foregoing uses are to be at Giant ea } s ! e expense. it in the intention of the Grantor to grant to the Grnntee , its sUCCessurs an! assiqns , all the Aqbts and easesonts SfOresaid SM nny and all additional and/or incidental rights in order to enjoy kne permitted uses. including but not UmUnd to the righc to defend said area against trespass , The Grantee Hall have the right, but not the obilgatinn , t,!:i erect and maintain a fence along the western boundary af LM easement provided that tha North Andover Mistorical SoMety or 06 successors and assigns approve the plans and lanatiQr for IRM fenoo in wrAing . Mh the excepco "a Q the aforementioned qe And fpyc''- and structures assarmted with New England CoInVol Gardens , the. Grantee shall not eteat any other structures as that term j-',, defined in Section 1 , 68 of the Noxth Andcver Zoning Ry -Tow, i R G .,tGrAnto, . Y.'}.:,. . , . ,. ., - n I:1 _''.' „ . e ,l'--.�Y.'s with Esser w � �. . r ..4.i t r `�� of Deeds in �yi S .. and d .t . '.: nti,-Y.1'i a A y :^m M o duly authorized this e 1991 , :, By_ NW E 7 ...ti '.1 OF t'r 'S+, ry , H I J Tran ,, s .'£"a .0 . y appeared the above-named c 1;`.. ... , -C „1'; ". my ..,.mO . _. , no -.,, .