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HomeMy WebLinkAbout19960723 Draft Conservation RestrictionCONSERVATION RESTRICTION 1. GRANTING CLAUSE: Benjamin C. Osgood, Trustee of Island Piece Realty Trust under Declaration of Trust dated January 24, 1996 and duly recorded with Essex North District Registry of Deeds at Book 2177, Page 101, as owner of Lot I shown on a plan of land entitled "Plan of Land in North Andover, Massachusetts subdivided for General Store Trust, Scale 1" = 40'. Dated April 12, 1985. Revised: April 24, 1985.", which said Plan is duly recorded with Essex North District Registry of Deeds as Plan No. 9988 (the "Plan'), of North Andover, Massachusetts (hereinafter "Grantor'), acting pursuant to Sections 31, 32 and 33 of Chapter 184 of the General Laws, grant to the Inhabitants of the Town of North Andover, acting by and through its Conservation Commission, located at 120 Main Street, North Andover, Massachusetts, and its successors and permitted assigns ("Grantee"), exclusively for conservation purposes as set forth in Section 8C of Chapter 40 of the General Laws, the following described Conservation Restriction on certain land located in the Town of North Andover, Massachusetts, said land being described in Exhibit A attached hereto (the "Conservation Restriction Easement Area"), reserving to Grantor the fee simple in the Conservation Restriction Easement Area and all other rights therein not expressly granted to Grantee. It. PURPOSES: This Conservation Restriction is granted for the purpose of preserving the Conservation Restriction Easement Area in its predominantly natural and/or open condition, with the public benefit of such preservation included the following: (a) preservation of the natural environment; and (b) protection of the public health, safety and welfare. III. PROHIBITED ACTS AND USES, EXCEPTIONS THERETO, AND PERMITTED USES: A. Prohibited Acts and Uses. Subject to the exceptions set forth in paragraphs B and C below, the following acts and uses are prohibited in the Conservation Restriction Easement Area: I. Constructing or placing any building, landing strip, mobile home, tennis court, swimming pool, asphalt or concrete pavement, sign, billboard or other advertising display, antenna, utility pole, tower, conduit, or line or other temporary or permanent structure or facility on or above the Conservation Restriction Easement Area; 2. Mining, excavating, dredging or removing from the Conservation Restriction Easement Area, soil, loam, peat, gravel, sand, rock or other mineral resource or natural deposit; 3. The installation of underground storage tanks, or the dumping in the Conservation Restriction Easement Area of refuse, trash, vehicle bodies or parts, rubbish, debris, junk, waste or other substance or material; 4. Cutting, removing or otherwise destroying trees, grasses or other vegetation; 5. Activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation; and 6. Undertaking any other use or activity in the Conservation Restriction Easement Area which would impair materially any significant conservation interests unless necessary for the protection of the conservation interests that are the subject of this Conservation Restriction. E. Exceptions to Otherwise Prohibited Acts and Uses. The following acts and uses otherwise prohibited in subparagraph A arc permitted but only if such acts or uses do not materially impair significant conservation interests: 1. Excavation and removal from the Conservation Restriction Easement Area of soil, gravel or other mineral resource or natural deposit as may be incidental to the maintenance of good drainage, soil conservation practices or to other permissible use of the Conservation Restriction Easement Area; 2. Selective cutting of trees for fire protection, unpaved trail and road maintenance, tick control, or otherwise to preserve the present condition of the Conservation Restriction Easement Area, including vistas; and 3. Hiking, horseback riding, cross country skiing and other outdoor recreational activities. C. Permitted Acts and Uses. All acts and uses not prohibited by subparagraph A arc permissible. Further, notwithstanding anything contained herein to the contrary, Grantor expressly retains and reserves for itself, and its successors and assigns, and the Conservation Restriction Easement Area is conveyed subject to, the following reserved easements and rights, including, without limitation, the right for installation, maintenance, repair or replacement, which may result from the exercise by Grantor of any rights reserved, all of which are allowed: L To the extent presently existing, the right to maintain drainage, retaining walls, utility poles, conduits, lines and appurtenances thereto; 2. The right to drain surface and subsurface water onto the Conservation Restriction Easement Area (including quantity and rate) from the abutting property; 3. Underground utilities; and 4. The right to convey the Conservation Restriction Easement Area or any portion thereof separately, or any lawful subdivision of the Conservation Restriction Easement Area. IV. LEGAL REMEDIES OF THE GRANTEE: A. Legal and Injunctive Relief. The rights hereby granted 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 Conservation Restriction Easement Area to its condition prior tothe time of injury complained of (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. B. Reimbursement of Costs of Enforcement. Grantor, and their successors and assigns, covenants and agrees to reimburse Grantee for all reasonable costs and expenses (including without limitation counsel fees) incurred in enforcing this Conservation Restriction or in remedying or abating any violation thereof. C. Grantee's Disclaimer of Liability. By its acceptance of this Conservation Restriction, Grantee does not undertake any liability or obligation relating to the condition of the Conservation Restriction Easement Area. D. Severability Clause. if any provision of this Conservation Restriction shall to any extent be held invalid, the remainder shall not be affected. E. Non -Waiver. Any election by the Grantee as to the manner and timing of its right to enforce this Conservation Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a waiver of such rights. F. Acts Beyond Cantor'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 Conservation Restriction Easement Area resulting from causes beyond the Grantors' control, including without limitation, fire, flood, storm, earth movement, and acts caused by trespass on the Conservation Restriction Easement Area, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Conservation Restriction Easement Area resulting from such causes. G. Termination of Rights and Obligations. Notwithstanding anything to the contrary herein, the rights and obligations, under this Conservation Restriction, of any party holding any interest in the Conservation Restriction Easement Area shall terminate upon transfer of that party's interest, except that liability for acts or omissions occurring prior to transfer shall survive transfer. V. ACCESS: The Conservation Restriction hereby conveyed does not grant to Grantee, to the general public, or to any person any right to enter upon the Conservation Restriction Easement Area except there is granted to the Grantee acting by and through its Conservation Commission the right to enter the Conservation Restriction Easement Area (i) at reasonable times, (ii) in a reasonable manner, and Eii) with reasonable notice to Grantor and the successors and assigns of Grantor holding any interest in the Conservation Restriction Easement Area, for the sole purpose of inspecting the Conservation Restriction Easement Area to determine compliance herewith and to enforce the provisions hereof. VT. ASSIGNABILITY: A. Running of the Burden. The burdens of this Conservation Restriction shall run with the Conservation Restriction Easement Area, and shall be enforceable against Grantor mid the successors and assigns of Grantor holding any interest in the Conservation Restriction Easement Area. B. Running of the Benefit. The benefits of this Conservation Restriction shall be in gross and shall not be assignable by Grantee, except in the following instances and from time to time: 1. As a condition of any assignment, the Grantee requires that the purpose of this Conservation Restriction continue to be carried out; and 2. The assignee, at the time of assignment, qualifies under Section 32 of Chapter 184 of the General Laws as an eligible donee to receive this Conservation Restriction directly. VIL SUBSEQUENT TRANSFERS Grantor agrees to incorporate by reference the terms of this Conservation Restriction in the initial deed(s) from it by which it divests itself of any interest in all or a portion of the Conservation Restriction Easement Area. VIII. EFFECTIVE DATE AND TERM: This Conservation Restriction shall be effective when Grantor and Grantee have executed it and it has been recorded with Essex North Deeds; Grantor shall record this instrument in a timely fashion. The restrictions contained herein shall remain in full force and effect until thirty (30) years from this date, and may thereafter be extended and continued for further periods of twenty (20) years each in the manner provided in Massachusetts General Laws, Chapter 184, Section 29, as it may be amended from time to time. Executed under seal as of thee923 day Of July, 1996. ISLAND PIECE REALTY TRUST By B no C. Os d, as Trustee a not individually COMMONWEALTH OF MASSACHUSETTS Essex, as. July 21 1996 Then personally appeared before me the above -named Benjamin C. Osgood, trustee as aforesaid, and acknowledged the foregoing instrument to be his free act and deed �j. ota ub isry ,dcL�ereick y ommisaw xphes:2-16-2001 ACCEPTANCE OF GRANT The above Conservation Restriction is accepted pursuant to Section 8C of Chapter 40 of the General Laws for conservation purposes this day of July, 1996. TOWN OF NORTH ANDOVER By its Conservation Commission Chairman COMMONWEALTH OF MASSACHUSETTS Essex, as. July _, 1996 Then personally appeared before me the above -named . and acknowledged the foregoing to be his free act and deed. Notary Public My Commission Expires: EXHIBIT A That certain lot located on the westerly side of chestnut Street, North Andover, Essex County, Massachusetts, and being designated as Lot No. 1 on a plan of land entitled "Plan of Land in North Andover, Massachusetts subdivided for General Store Trust, Scale i" = 40'. Dated April 12, 1985. Revised: April 24, 1985.", which said Plan is duly recorded with Essex North District Registry of Deeds as Plan No. 9988. Said Lot 1 contains 25,121 square feet according to said Plan No. 9988, and reference may be had to said Plan No. 9988 for a more particular description of said Lot.