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HomeMy WebLinkAbout2012-02-07 Planning Board Supplemental Materials (12) DECLARATION OF RESTRICTION THIS DECLARATION OF RESTRICTION (hereinafter the "Declaration") is made this day of February, 2012,by Brightview North Andover, LLC, a Maryland Limited liability company qualified to do business in Massachusetts as a registered foreign limited liability company,having a principal place of business of 218 North Charles Street, Suite 220, Baltimore, Maryland 21201 (hereinafter the "Declarant"). WITNESSETH WHEREAS, Declarant is the owner of that certain parcel of land, known and numbered as 1275 'l urnpike Street, North Andover, Ylassachusetts, consisting of 33.346 acres of Land, as shown on a plan entitled "Plan of Land in North Andover, " dated July 20, 2010, Scale -1 = 30', prepared by Marchionda Associates, LP, and endorsed by the Town of North Andover Planning Board on November 29, 2011 (the "ANR Plan"), recorded with the [;ssex North District Registry of Deeds as Plan No. being the same premises contained in a deed dated January 2,1998, recorded with said Registry in Book 4912, Page 127 (collectively, the "Property"); and WHEREAS, a Continuing Care Retirement Center and Site Plan Review Special I""rmit, dated April 6, 2010 (the "Special Permit:Decision"), as affected by a Notice of Decision (Insubstantial Change), dated July 5, 2011 (the "Insubstantial Change Decision"). were both issued by the North Andover Planning Board (collectively, the "Decision") with regard to the Property, which Special Permit Decision and Insubstantial Change Decision are recorded with said Deeds in Book- Page and in Book____ , Page _ respectively; WHEREAS, the Special Condition 7.d of the Special Permit Decision requires the Declarant to impose a restriction on the Property for the benefit of the 1'own of Nortl, Andover which provides that the Property shall not be transferred to a nonprofit entity except in the event that such entity agrees in writing by an instrument recorded with said Deeds to pay real estate taxes on the Property for so long as such entity owns the Property and notwithstanding such entity's not for profit status; NOW, 'rHERFFORF,, Declarant hereby vohunt<<rily declares and imposes in perpetuity upon the Property the following covenants, conditi�ris and restrictions for th., benefit of Declarant, its successors and assigns, and the Town of North Andover, by and 'hrough its Planning Board (hereinafter the "'Gown''), and said R.-operty shall be held, transferred, sold, conveyed, occupied and used subject to the covenants, conditions, and restrictions hereinafter set forth. 1. Prohibited Acts and Uses. Subject to the Reserved Rights set forth in Section 2 below, the Declarant hereby covenants and agrees that it shall not apply for or claim an exemption from local real property taxes as a nonprofit entity pursuant to M.G.I... c. 59, Section 5, Clause Third, and the Property shall not be transferred to a nonprofit entity except in the event that such entity agrees in writing by an instrument recorded v,,ith said Deeds that it shall -iot apple for or claim an exemption from local real property taxes as a nonprofit entity pursuant to M.G.L. c. 59, Section 5, Clause Third, and agrees to pay real estate taxes on the Property for so long as such entity owns the Property and notwithstanding such entity's not for profit status. 2. Reserved Rights. Notwithstanding any provisions herein to the contrarv, Declarant reserves to itself and its successors and assigns the right to undertake all other activities y,vhich are not inconsistent with the prohibited acts and uses described in Paragraph l above, including but not limited to, the right to divide, subdivide, resubdivide, sell and c onvev all or pul-tion of the Property that is burdened by the Declaration. 3. Term-- Binding Effect In Perpetui 'Phis Declaration of Restriction and its provisions herein.set forth shall run with the Property in perpetuity from the date of recordation in the Essex North District Registry of Deeds and shall be binding upon Declarant, Declarant's successors and assigns, and any other party having an ownership interest in said Property or claiming to have an interest with respect to said Property as tenants, invitees, licenses or otherwise, and all of the respective heirs, successors, grantees, mortgages, assigns, agents, contractors, subcontractors and employees of the foregoing. This Declaration of Restriction is hereby intended and declared to be in perpetuity and no re-recordation of this Declaration of Restriction under G.L. r_. 184, ss. 23--30 or any Ther law shall ever be necessary in order to maintain the full legal effect and authority hereof z nd Declarant and its successors and assigns, including but not limited to all subsequent owners of the Property,hereby waive all their legal right to and shall forego any action in lavv or equity of anv kind whatsoever attempting to contest the validity of any provision of this Decla -ation of Restriction and shall not, in any enforcement action, raise the invalidity of,_iny provision of this Declaration of Restriction. Notwithstanding the forgoing, the rights and obligations euritained herein shall be enforceable against the current owner of said Property, and therefore, it being understood and agreed that, from and after any conveyance or transfer of all or a portion of the Property covered by this Declaration, only, the transferee of said Property shall be liable for the performance or observance of, and shall have the benefit of, said covenants and agrecments herein.. 4. Modification or Termination of Restrictions. 'this Agreement shall not he m,>dified, amended, changed, or terminated or waived without th. consent of the Declarant (or Declarant's successor) as well as the consent of the 'l ow:i of North Andover Planning Board. The Declarant as well as the Town, may enforce and, if necessary, extend this Declaration in accordance with applicable law. Declarant agrees for itself, and its heirs, successors and assigns to execute and record such notices of restriction as are required to extend this Declaration in perpetuity in accordance with applicable law. The Town is hereby declared to be a benefited party to and a holder of this Declaration and hereby appoints the 'Down as its attorney-irl-fact to execute, acknowledge, deliver and record any such notice or instrument on its and/or their behalf. Without limiting the forgoing, the Declarant and its successors and assigns agree to execute any such notices and instruments in a form reasonably acceptably to Declarant upon request of the Town or the Division. 5. Enforceability. The Town shall have the authority and right to enforce this Declaration of Restriction. The Town shall have the right to bring proceedings at law or equity_ against any party or parties violating or attempting to violate the terms of this Declaration to enjo'.n them from so doing and to cause any such violation to be remedied, after providing written notice to such party or parties . Notwithstanding the forgoing, if all or a portion of the Property is conveved to a successor owner where a violation has occurred or will occur resulting in an enforcement action being taken, then the 'Down may only seek such enforcement against the owner of said lot(s) on which the violation has occurred, and therefore, it being undcrstood and agreed that, from and after any conveyance or transfer of any portion of the Property covered' by this Declaration, the transferee of said portion of the Property shall be liable for the performance or observance of, and shall have the benefit of, said covenants and agreements herein.. 6. Severability. If any court or other tribunal of competent jurisdiction determines that any provision of this Declaration of Restriction is invalid or unenforceable, such prop ision shall be deerned to have been modified automatically to conform to the requirements for alidity and enforceability as determined by such court or tribunal. hn the event the proy,isiorn ins alidated is of such a nature that it cannot be so modified, the provision shall be deemed deleted from this instrument as though it had never been included herein. In either case, the remainlrW provisions of this instrument shall remain in full force and effect. 7. Non-Waiver. Any election by the Town as to the manner and timing of its rip ht to enforce this Declaration of Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a waiver of such rights. 8. Incorporation Into Deeds. Declarant and Declarants successors and assigns, including all subsequent owners of the Property or portions thereof, shall incorporate this Declaration of Restriction, ill full or by reference, into all deeds. Any such deed purporting to convev any portion of the Property without including this Declaration of Restriction ill full or by .reference shall be deemed and taken to include said Declaration cf Restriction in full even though said Declaration of Restriction is not expressly described or referenced therein. 9. Recordation/Registration. Declarant shall record and/or register this DecLiretion of Restriction with the appropriate Registry of Deeds and/or Land Registration Office prior to the issuance of a building permit. 10. Amendment and Release. No amendment or release of this Declaration of Restriction shall be effective unless it has been approved in writing by the Town (hereinafter the "'I'own Approval") and said amendment or release and the requisite Town Approval has been recorded with the appropriate Registry of Deeds and/or land Registration Office. IN WTTNESS WHEREOF, the Declarant has caused these presents to be signed, acknowledged and delivered this day of hebruary, 2012. BRIGHTN'IEW NORTH ANDOVER, LLC By: Marilynn K. Luker, President, duly .authorized. STATE OF MARYLAND, CITY/COUNTY OF BAL"IIMORE, TO WIT: I HEREBY CERTIFY that on this day of - _ _ 2012, before me, the subscriber, a Notary Public of the State of Maryland, in and for the City/County aforesaid, personally appeared Marilynn K. Duker, President of Brightview North Andover, 11C, a Maryland limited liability company, and as such President she acknoXVled ed the foregoing instrument to be the act and deed of said limited liability compaliv. WITNESS my hand and Notarial Seal. Notary Public My Commission Expires:- 4 APPROVED AS TO FORM: At a regularly scheduled meeting held on 1'uesday. F&I'Liary 7. 2012. the Town of North Andover Planning Board voted to approve the form of this Declaration of Restriction, and authorized the Chairman of the Planning Board to confirm the Board"s acceptance by signing in the space provided below. NORTII ANDOVER PLANNING BOARD B John L. Simons, its Chairman Dated: February 7, 2012 ATTORNEIi'S CERTI FICA'] F to U ItIC PrOPOSMI, coni b"Wig care ruhrmwnt hwRuN to be kKapd oj- real propery, consisting of 3335 acres, tulown and flun-tbered '127-5 Turnpij ,; '-,trcet North Ando-ver, Massachusetts (we Aroperty"), we herehv certif, t(-j t'j-, NT,orth Andover that: Bright-view, North A. n.d.over., Lill is a Mar y1and hmate_ ii qUalified, to do business in \1lass achusetts aA iegistered foreign linwo hakbq mnpany, ha , a [&Mpal 1.4w 4 buiness of 218 North Cl ,id n; 3treot, je, 220, Balti-more, Nhiryland 2'121j]: 2. Brightview IlNorth Andover, LIC i'y the record owlev of the Property by "'irtuc, cit a deed recordet.1 with the 'Esse,\ North DAw4j Reghstry (4E)ec�cels jT-, Page 3. birightview Nordh Andover, LI, is 'a"Uh aUdIMAEA 51 "ALS, Declaration of Resat ictaon, dated Februar�. ............ 2012, w,"Ah Said L)k"k,""a's Lr" (the "Declarabm"): 4. the Declaration encurnimrs the fimperw nid 1�; r1of �,ubjoct to encumbrance:; of record except as mA kmlh fi-I ',-x -�i A I a T i'J., the Declan-ation has been granted Ln 'I"'Cordmice "vith t�,ie terrns55 Conoitiori 7,d of the Notice w Decision - C',mltinuinCajv (CC RCI SpNial Arc & anti Site Plan Roview Special F"er",nit, diltcd Pe "CCRC: QXwAl MACY imued by Ole North !\-ndovur 111:1,jtu"Ll ,, bi.,ard recorded with satid Deeds in Book Page, Sigiipd this day of February' 2012, SNICI,A 1, VA U'Q-,I LA.N I.:L P ...........................--....... EXFHB1 F 1W h) Ole f0opevy and We Duclaravuln. I's i.,Xcepdikmls and" quifllif'�Catiolm VY, tacts. riglAs, interes, or clainis WAS ary not shown W- Ole Puba. an"r&, but which could be asccriabla i:w jjr,, it.spec�:io�n �)t pe,-,",,:.lis u, 2. D corlffic!s €3t >E ul'-d'u I ik7asj 01, any other facts vvldch a cariv, survey would disclose, i1nd shov,n by Ole public record's, nimucTal chwjm "%+ MC niq VH dUG dA nwy come due and pa�'ablo xftc'r ule A& IM this ArWAcat,,%, 1 PU IT CUM PMA) T0 INC 1 U W ANT IPPI 1c:AW 11 MIX 17130; 1 1101-1- Y i— CHICAGO TITLE INSURANCE COMPANYSChEdl ll w Pert! .165f7tfv IQ.IIv'ST.,ETH FL,HC)MN,,MA 02110 PH0M:(61'1)21&0?S0 A-1:(617,�21MT,"7 Policy No: i 1.* SCUEDULF,B-PART i F_. CF,P'T'10NS;FROMCOVKRAGP' Except as fwrovided in Schedu e 16-Fart FI,this ae'icy&)es rant i suit against kris or dattl e(gid the,,Co p@ny will not pay costs,attorneys'fetes or expe•n eq)that Arise,la,y reason of L 1. Real estate taxes aro paid through 2012. Subsequent real estate taxes,betterments and othtjr rrrunlclpa! charges are®lien not yeit due and payable„plus unpaid water and sewer charges, if any. 0 2. I'Aattess disclosed on a survey entlrled° "as fol Iows: 3, The exact acreage or square footage being other than as sited In the tescriptlon sheat annexed pian,ks? therein referred to. Ir 4. Tide to and rights of Bathers In the adjacent streets and ways, Q 5. Taking for the constrtictlon of railway tracks by the Town North,Andover reoorded In Bock lit,Page 200. x 6. Easurnent to New England Telephone and Telegraph Company mcorded In Book 201, Page 611 Y T. Taking for the layout of Route 114 by the Cornmo:1wealth of€assachusetts Department&PUtalic'Ac)rk (,D.p n, ! recorded in Book 689,Page 261,as affected by Cerilficate of Entry recorded In Book 689,Page 045 arcs by Conveyance of Rights recorded In Book 707, Page 210, r 8, Basement to the DPW,forthe relocsition of a brook retarded in Book 693, Page 430. U 9. Grant of easement for drainage purposes to the DPW, recorded In Book 691,Page 433. V 10. CertlFcate regarding matter of BoGtcan Hill Development,LLC vs. Ben)arnin Farnuin, et als(Land C oL.rt Casa tic. 266427)recorded In Book6057,Page 71. 11. Conservation Restriction from Boston Hill Development, LLC to the Town of North.Andover re..c orued in Book 10282,Page 272. x NOTE, While such matters are excluded from coverage and noted for Informational purposes only, the folio ving rnkter(s)were recorded/'filed: a. Order of Conditions(VEP File no.242-500) recorded In Book 3060, Page 57;as affected by Al rnendrrll?nt recorded in Book 3060, Fla ge6T b.Order of Conditions(DEP File no.242-870) recorded In Book 4812, Page 305, as affected by Ccirt is ate of Compliance dated Decernebr 3,1997 recorded In Brook 4910,Page 168, c.Notice of Decision by the North Andover Board of Appeais recarded In Boo M, Page 20 t. d.Notice of Decision by the North Andover Board of Appeals recorded In Book 1323, Page 13, e.Notice of Decision by the North Andover Board of Appeals recorded In Book 3060, Paige 6G, f. Notice of Decision by the North Andover Board of Appeals recorded In Book 3066,Page 73. *** COM'INUBD*** Pace 3 - eAri SHS WO 02/02/12 15147:19 ALTA Loan Policy(6/1.7/06.)e Mod€fled for 0:)mifio lai Uw tooy, CHICAGO TITLE INSURAIlICE COMPANY x sFRANxUN sr sr r t r. ,t osz Ota,u� 02110 �x ;:to trtsca :{ t rFr Schedule w,F�r�rt l {continued) i _ _ m. Policy No �f, 1 g� a g, Order of Conditions Issued by the North Andovar COnSeAldlOn Commi lon dated C3 ober 24: 2002 r(icorde In Book 7246, Page 73;as affected by Ext:enslur Permit Issuez!by the North Andaver Conservratiori -orramisslon dated December 15,2005 recorded In Book 9956,Pane 69,as affected by that fV1odefication to under of Condtilons Issued by the North Andover Consecration Commieslon dated May 24, 2006 recorded r Book Page 36. h, Order of Conditions Issued by the North Andover Conservation Commission(Pile No.242-1317t, rac,)nleo 1n Book 10640,Page 107;as modified by Modification of 0trier c)f CondWons recorded l?r Haul;11344i, Pa&233, L Notice of Decislan of 9�he Board of Appee�ts of V10 I own of North Andover recorded In Book 513'7, P ge 145. J.Notice of Decision of th3 Office of the Planning Department of the Town€1f North Andover raccr,,jji cl if)Book 11346,Page 228. The following tax parcel numbers provided for the property set forth In the legal duscrtption arc provided for Informational purposee only and are not insured hereunder: Map 107.A Black 0284 L-3 RDadway ; Flap 107.A Block 0283 L-4 Roadway B;and Map 107.A Block 0149 L-1 Roadway B. ac,a .......... issuer CHICAGO TITLE INSURANCE COMPANY FPLA.?MJN 9r,TM FL.,BUZTON,MA 02n;10 PH()N-'F�'(617)21G,(T750 FA�K�, z B - Part N ........................ EaY!®�yy Poficy No- 0 8 CHEDITLE B-PAR r 19 EXCEPTIONS FROM COVERAGE In addit oa to the Watters set forth in Part I of this Sch-.dulr,the Title is subject to the f0llu-,v matters and tfic Company insLie-s against loss or damage,sustained in thr,cvenl;that tLeyarc,not sul�cjr&iate,to thtc I'-- �)ftb . ln.sw(J Mcrtgagc: S C',