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SAMPLE TIF DOCS FOR NORTHSHORE AMBULANCE NO�fhSl1ore �,(j�i1�.� c� %//� - -- _ _ _ \ �\ •� CITY OF SALEM, MASSACHUSETTS PLANNING DEPARTMENT �coxwt CRAIG L. WHEELER g6 ONE SALEM GREEN City Planner - �r 01970 'ro (978)745-9595 Ext. 311 Fax(978)740-0404 MEMORANDUM TO: David Tuxbury,NorthShore Ambulance, Inc. FROM: Mary Cassidy, Economic Development Planner RE: TIF Process DATE: September 18, 1998 cc: Mary E. Madore,Northshore Ambulance Joseph O'Neil,Northshore Ambulance Stanley J. Usovicz, Jr., Mayor Craig Wheeler, City Planner Attached for your review are copies and examples of TIF application materials that will comprise the document to be submitted to the City and State for approval. This material will be assembled by the Planning Department with the assistance of NorthShore Ambulance. I have also enclosed a package from the Economic Development Incentive Program that further explains the program and provides examples of other TIF structures throughout the state. Working jointly, we can prepare the Certified Project Application and TIF Plan based on the TIF term and exemption percentages that are negotiated between the Mayor and NorthShore Ambulance. To qualify for tax benefits, an applicant must gain both local and state approval. The process is as follows: 1. Prepare application for certified project status and include all necessary supporting materials. 2. Prepare TIF plan and include all necessary supporting materials. 3. Prepare TIF Agreement, City Council Resolution to approve the Certified Project and City Council Resolution to offer a TIF Agreement. 4. Submit all of the above materials to the City Council with a cover letter from Mayor Usovicz. 5. Obtain City Council Approval. 6. Send entire Certified Project application to the Economic Assistance Coordinating Council for State approval. I am available to assist in all aspects of the coordination of this application process. Please contact me with any questions you may have. NORTHSHORE AMBULANCE, INC. DAVID TUXBURY Itt CHIEF EXECUTIVE OFFICER -` OFFICE P.O.BOX 902 FAX (508)744-1349 SALEM,MA 01970 (508)744-5294 NORTHSHORE . AMBULANCE, INC. MARY E. MADORE R.N.C., MPA/H. j VICE PRESIDENT,CORPORATE DEVELOPMENT 1 OFFICE P.O.BOX 902 FAX (978)744-1349 SALEM,MA 01970 (978)744-5294 I J & J REALTY TRUST Trust agreement made July 16, 1998 between Joseph J. O'Neil, Jr. and Joan O Neil of 42 Hillside Avenue, Salem, MA (trustors) and Josdph J. O'Neil, Jr. and Joan S. O'Neil of 42 Hillside Avenue, Salem, MA (trustees). In consideration of the mutual covenants and promises set forth herein, trustors and trustees agree: SECTION 1: DECLARATION OF TRUST ! // �qq N� It is hereby declared that the undersigned and.any successors in trust will hold any and all property that may be transferred to the . undersigned as Trustees hereunder for the sole beneft of the persons hereinafter called the beneficiaries who are set forth in a Schedule of Beneficial Interest signed by the trustors in the proportions therein set forth. This Trust shall be called the J. & J. Realty Trust. SECTION 2: PURPOSE OF TRUST The primary purpose and intent of trustors in creating this trust is to secure the said property for maintenance by the trustees and application of such property to benefit, in such manner as shall be deemed by trustees, those who shall from time to time be beneficiaries hereunder as directed by trustors in any manner. The provisions of this instrument shall be liberally construed in favor of the continuing accomplishment of such purpose. SECTION 3: DISPOSITION OF PRINCIPAL AND INCOME Trustees shall hold, manage, invest and reinvest the trust estate, and shall collect the income thereof and may dispose of the net income and principal in the following manner: (a) Trustees may, in trustees' sole discretion, taking into consideration any other income and financial resources available to the trustors or such other beneficiary pay or distribute to the trustors or any beneficiary any share of the net income of the trust, the balance to be held and accumulated by trustees for future distribution to said beneficiaries. The amount to be paid on distribution and the time when such accumulated income is to be distributed to said beneficiaries shall be determined solely by trustees in the exercise of trustees' absolute discretion. (b) Whenever, in the judgment of trustees, there may be a danger that any portion or portions of the trust corpus distributable to any beneficiary under this trust may be dissipated or improvidently utilized through intemperate or spendthrift habits, lack of business capacity, subjection of the beneficiary to the injurious influences of others, or for any other reason or reasons, trustees shall withhold from each such beneficiary the whole or any portion of the trust corpus otherwise distributable to such beneficiary. Trustees may make any such payments, to the natural guardian or the legally appointed guardian or other fiduciary of the person or estate of such beneficiary, to any person or organization furnishing care, support maintenance or education for such beneficiary, or by making expenditures directly for the care, support, maintenance, education, or recreation of such beneficiary. Trustees' decision as to direct payments or application of funds shall be conclusive and binding on all parties in interest. The Trustee are specifically empowered to withhold distributions of principal and income to prevent diversion of trust assets to a spouse of a beneficiary in the event of a divorce so as to preserve trust assets for the education an d support of any y other beneficiary determined by Trustees in the exercise of absolute discretion. The benefits of this trust shall not be considered a liklihood of inheritance and shall not be considered an asset of the beneficiary or an element of General Laws, Chapter 208 section 34. SECTION 4: ADDITIONS TO TRUST With consent of trustees, any person may, from time to time, by conveyance, assignment, transfer, will, or otherwise, add property of any kind to the trust estate or any part thereof. Such property shall thereupon be subject to all the terms and provisions of this agreement. SECTION 5: POWERS OF TRUSTEES Both Trustees must act jointly hereunder, neither party having the authority to transfer any interest in any trust property without the consent of the other trustee, except in the event of the death or incapacity of the other trustee in which case the surviving and full capacity trustee may then act singly. Trustees may freely act under all or any of the powers by this trust agreement given in all matters concerning the trust herein created, after forming a judgment based upon all the circumstances of any particular situation as to the best course to pursue in the interest of the trust and the beneficiaries hereunder, without the necessity of obtaining the consent or permission of any person interested therein, or the consent or approval of any court. Trustees may so act notwithstanding that trustees may also be acting individually, or as trustees of other trusts, or as agent for other persons or corporations interested in the same matters, or may be interested in connection with the same matters as stockholder, director, or otherwise. However, trustees shall exercise such powers at all times in a fiduciary capacity primarily in the interest of the beneficiaries hereunder. 2 In trustees' absolute discretion and for the best interest of the trust estate, trustees may deed, mortgage, pledge or otherwise encumber or hypothecate any or all of the trust property, and cause or permit liens on it. The powers herein granted to trustees may be e:-ercised in whole or in part, from time to time, shall be deemed to be supplementary to and not exclusive of the general powers of trustees pursuant to law, and shall include all powers necessary to carry the same into effect. SECTION 6: ALLOCATION OF PRINCIPAL AND INCOME Unless otherwise specifically provided herein, in the exercise of sole and absolute discretion, the trustees may determine what is principal or income and what shall be charged or credited to either principal or income. Trustees'judgment thereon shall bind all beneficial interests hereunder. SECTION 7: TRUSTEES' INVASION OF CORPUS If trustees deem any net income payable hereunder insufficient to provide for the reasonable care, support, maintenance, and education of of beneficiary who is at the time receiving or entitled to receive income hereunder, taking into consideration any other income and financial resources available to such beneficiary, trustees may, as often as trustees deem necessary, pay to or apply for the use and benefit of such beneficiary such additional part, up to and including the whole thereof, of the principal of the trust estate or, if the trust estate has been apportioned into shares, of the principal of the respective share of such beneficiary, that trustees in the exercise of sole and absolute discretion believes will be in the best interest of, and will tend to promote the welfare of such beneficiary. SECTION 8: INTERESTS OF BENEFICIARIES AS PERSONALTY The interests of the beneficiaries shall consist solely of the right to receive the proceeds from rentals and from mortgages, sales or other disposition of the property as determined by trustees. The right to the proceeds of the property shall be deemed to be personal property. No beneficiary now has or shall have any rights, title or interest in or to any proportion of any real estate as such, either legal or equitable, but only an interest in the earnings and proceeds thereof. In case of the death of any beneficiary during the existence of this trust, such beneficiary's right and interest hereunder shall terminate, unless otherwise provided herein. 3 SECTION 9: SPENDTHRIFT PROVISION No title or interest in the money or other property constituting the principal of the trust estate, or in any income accruing therefrom or therein, shall vest in any beneficiary during the continuance of the trust created hereby. No such beneficiary shall have the power or authority to anticipate in any way any of the rents, issues, profits, income, monies, or payments hereby provided or authorized to be paid to such beneficiary, _ or any part thereof, not to alienate, convey, transfer or dispose of the same or any interest therein or any party thereof in advance of payment by only trustees. None of the same shall be involuntarily alienated by any beneficiary or be subject to attachment, execution, or be levied upon, to be taken upon any process for any debts that any beneficiary of the trust shall have contracted or shall contract, or in satisfaction of any demands or obligations that any beneficiary shall incur. All payments authorized and provided to be made by trustees shall be made and shall be valid and effectual only when paid to the beneficiary to whom the same shall belong, or otherwise, as herein provided. SECTION 10: APPORTIONMENT OF ASSETS ON DIVISION OR DISTRIBUTION On any division of the trust estate into shares for trusts and on any distribution, trustees may apportion and allocate the assets of the trust estate in cash or in kind, or partly in cash and partly in kind, or in undivided interest, or in such manner as trustees in the exercise of discretion deems advisable. Trustees may sell such property as trustees deems necessary to make any such division or distribution. After any division of the trust estate, the trustees may make joint investments with funds from some or all of the several shares or trusts. SECTION 11: EXPENSES AND TRUSTEES' COMPENSATION Trustees may pay from income or principal of the trust estate or partly from each, any expenses incurred in the administration of this trust and in the protection of this trust against legal attack, including counsel fees and a reasonable compensation for trustees' own services as trustees. Such expenses and compensation shall constitute a first lien on the trust estate. SECTION 12: DEATH TAXES On the death of trustors or any beneficiary, any estate, inheritance, succession, or other death taxes, duties, charges or assessments, together with interest and penalties, that shall become due 4 by reason of the trust estate or any interest therein being includible in trustors' or such beneficiary's estate for such tax purposes may be paid by trustees from the trust estate, unless other adequate provision shall have been made therefor. SECTION 13: REVOCATION AND AMENDMENT At any time during trustors' lives, trustors may, by written notice to trustees, revoke this trust in whole or in part, or alter or divest the interest of or change the beneficiaries of this trust or otherwise modify this trust. Such notice shall be acknowledged before a notary public, shall set forth the effective date of the revocation or amendment, the terms thereof, and shall state the manner in which the trust assets shall be transferred on revocation, and the name and address of the transferee. Such notice shall be mailed to trustees at trustees' last known address by certified mail not less than two days prior to the effective date of the revocation or amendment. SECTION 14: DURATION OF TRUST This trust shall continue during the lives of the both trustors, and then terminate, and the successor trustee, after paying all expenses incurred, unpaid trustee fees, and any taxes lawfully payable by trustees, and not inconsistent with any estate plan of the trustors, shall pay or transfer the remaining trust principal, together with any accumulated income, in trustees'. possession outright to the beneficiaries in accordance with the proportions set forth in the Schedule of Beneficial Interest. SECTION 15: LIABILITY No loss or damage accruing to the trust estate as a result of the exercise of any discretion herein vested in trustees shall be charged or imputed to trustees, except for such loss or damage as may result from bad faith or gross negligence in the exercise of trustees'discretion. No liability shall accrue to trustees for any payment or distribution required hereunder made in good faith and without actual notice or knowledge of any change in condition or status of any person receiving such payment or distribution. Trustees shall not be liable for any depreciation in value or other losses occasioned by any investments made, provided trustees acts in good faith in making such investments. Trustees shall not be personally liable on or responsible for any contract made in regard to this trust. Other parties to the contract must look solely to the trust estate for any remedy for breach of contract or otherwise, and trustees may so stipulate in any such contract. The trust 5 estate shall not be available for remedy on any indebtedness unless a court of equitable jurisdiction has determined that the indebtedness was incurred by trustees in the direct and exclusive accomplishment of the purposes of this trust which in no event shall be a personal indebtedness of the trustees, trustors or any beneficiary. SECTION 16: RESIGNATION OF TRUSTEES Trustees or any successor may resign at any time on giving written _ notice to trustors two days before such resignation shall take effect. After trustors' deaths, such notice is to be given to all adult beneficiaries and to the guardians or fiduciaries of the estate of any minor or incompetent beneficiaries who may then be receiving or are entitled to received income hereunder. SECTION 17: SUCCESSOR TRUSTEES On the resignation, removal, incompetency, or death of both trustees hereunder, Michael J. O'Neil of 13 Tammie Lane, Peabody, MA shall become the successor trustee on written acceptance of the duties of trustee hereunder. In such event, trustees named hereunder shall transfer and deliver to the successor trustee the then entire trust estate and shall thereupon be discharged as trustees of this trust and shall have no further powers, discretions, rights, obligations or duties with reference to the trust estate. All such powers, discretions, rights, obligations, and duties of trustees named hereunder shall inure to, and be binding on, such successor trustee. SECTION 18: TRUSTEES' ACCEPTANCE; GOVERNING LAW; SEVERABILITY This trust has been accepted by trustees and will be administered in the Commonwealth of Massachusetts. The validity, construction and all rights under this trust shall be governed by the laws of that state. Should any provision of this trust instrument be or become invalid or unenforceable, the remaining provisions shall be and continue to be fully effective. SECTION 19: SEVERABILITY Should any provision of this trustu instrument be or become invalid or uneforceable, the remaining provisions shall be and continue to be fully effective. 6 IN WITNESS WHEREOF, trustors and trustees have executed this agreement_only 16, 1998. r Wite, s Jo h J. il, Jr., T or Witness Joan S. O'Neil, T for Witness os p J. eil, Jr. Truste Gamic Witness Joan S. O Neil, Ikustee COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. July 16, 1998 Then personally appeared the above named Joseph J. O Neil, Jr. and Joan S. O'Neil acknowledged the fore-ggo instrument to be a free act and deed, before me, X �� ames N. Decoulos, Notary Public My commission expires on August 2, 2002 i • / Return to: j Decoulos 3 Decoulos Dn 248 Andover Street Peabody,MA 01960 n h QUITCLAIM DEED x I, Rita L: Kerr, ._.of ,;-Salem, Massachusetts, for consideration of o One Hundred Thirty Thousand and XX/100 ($130, 000.00) Dollars paid grant to Joseph J. O'Neil/ fid Joan S. O'Neil, Trustees of J & J °; Realty Trust under a Declaration of Trust dated July 16, 1998 and recorded herewith, of 89 margin Street, Salem, Massachusetts, with QUITCLAIM COVENANTS, n a Lot 4 as shown on a plan entitled "Subdivision Plan of Land 7 located in Salem, Mass. " prepared by Eastern Land Survey o Associates, Inc. , Scale: 1"=401 , dated September 24, 1997 4 prepared for Hugh Kerr", recorded with Essex South District Registry of Deeds in Plan Book 323 , Plan 17. N 4 Said Lot 4 consists of 47', 613± square feet as shown on said plan. o a a Subject to an easement for common driveway as described in the an T instrument recorded herewith. J 4 y Being a portion of the premises conveyed to the Grantor herein by 4 deed of Jonathan D. Penni dated January 29th, 1998 and recorded in the Essex South District Registry of Deeds Book 14558, Page 386. Witness my hand and seal this 16th day of July, 1998. Rita L. Kerr COMMONWEALTH OF MASSACHUSETTS Essex, ss. July 16, 1998 Then personally appeared the above-named Rita L. Kerr and acknowledged the foregoing instrument to be her free act and deed, before me. ' Jdse h C. Correnti tary Public YCommission Expires: 12/25/2003 3/kers/deed to ne ambulance 2.23.98/rev. 6.23.98/rev.6.30.98/rev.7.6.98/rev.7.14.98 AGREEMENT Common Driveway Easement lV V Agreement dated July 16, 1998, by and between Rita L. Kerr and Joseph J. O'Neil, Jr. and Joan S. O'Neil, Trustees of the J & J Realty Trust, pursuant to a declaration of Trust dated July 2, 1998 and- recorded herewith. -_1 qq- (_, �I The parties are abutting landowners of Lots 3 and 4 as depicted on - a subdivision plan recorded at Essex County South District Registry of Deeds at Plan Book 323, Plan 17. The parties desire to create a common driveway easement between their adjoining lots, for the mutual benefit of each of them. The parties hereby establish an easement for a common driveway over their respective portion of the 27 foot wide right-of-way, as depicted on the plan attached hereto'as Exhibit A, for the entire length of the lot for commercial use for the'passage of vehicles to ingress and egress to the garages located on the respective lots. The driveway shall be maintained in good repair by the parties with Rita L. Kerr responsible for thirty percent (30%) and Joseph J. O Neil, Jr. and Joan S. O Neil, Trustees for seventy percent (70%) of such costs. Upon conveyance of title by Rita L. Kerr to lot 3, maintenance of the driveway shall be shared equally by the then current owners of the lots. Maintenance shall include patching, repaving, and sweeping, as necessary. It is agreed that all costs for snow removal shall be shared equally by the parties. The driveway shall be kept clear of all debris, containers, rubbish, and clear of obstructions of any kind. There shall be no parking or repair of vehicles in the driveway. The maintenance shall not be undertaken except with prior express written consent of each of the parties describing the financial liability for the cost of the repairs or maintenance. The driveway shall not be used as a throughway, but only as a means of ingress and egress to the respective lots. The driveway shall not be used as access for any adjoining lots but shall only be used for access to Lots 3 and 4. Each of the parties agree to indemnify and to hold the other harmless from, and against any and all liability for personal injury, or property damage when such injury or damage shall result from, arise out of, or be attributable to any maintenance or repair undertaken, pursuant to this agreement. This grant of easement shall run with the land and shall be binding on and shall inure to the benefit of the parties to this agreement, their respective heirs, successors, or assigns. Signed, agreed and dated this 16th day of July , 1998. Ritd L. Kerr j1. J se h J. O' e}, Trustee Jr. an S. ONeil, Trustee COMMONWEALTH OF MASSACHUSETTS ESSEX, SS July 16, 1998 Then personally appeared the above named Rita L. Kerr, Joseph J. O'Neil/and Joan S. ONeil acknowledged the foregoing instrument to be a free act and deed, before me, / It , Public y commission x�ires on d< <� 2 6^I�C=__:��� � \\ MASSAO'A4(1]S BAY IRAM.¢QPTARQY AU I' rN�ry , x:IS,YT AUAIn' LOCvs MAP Lur I I7.612 Sf. I CDT —ljec R R \A&Wm r 2pmc nrslmcr I+' A55ES S MAP 21 PAn - 210 ,.. IOVP}C U WCT:M SW ANO F-C ftAN 6Y EASl.!TW LANG AMIIEY ASSUpA F; lNC �5 WAL PRWO FA PARXINC JT ACLS 1 n AAM 41r mm y lu UW. • I I I �YG r��`, WE DFYT.LCRMENT r ' HA1!T FUN N L_�` LxA rea n ( SALEM, MASS, PA4r'MYp 9Y EASTER.9 LANG SURVEY A.SSG:IATF,S, INC. /' CliPo5T0'i"ER R. AICLLO, PL5 JEFFERSON AVENUE { 104 LO9ffll ST. PEA000Y, MA. 010E0 +4d' (9)01 1`1,.5121 SCALE: 1' - 20' .:A9VARY 20, 1909 i "�- Psrsnrs::ae mrs rtAxanA.ao wv lrr eoexeeYAO 1I 1 K(p6 NOR THSHORE AMBULANCE, INC. Aw rrs 6rsurs.rArmn sm�r As ae lros wre ._ ____ xo rmnx,nprrsxlewea As rovAm.n nnE [���� ��� p,,� ..._...� a As ro mr ustw¢a urearro;a lnancatteo mmoxal WHIPPLE & KING, P.C. ATTORNEYS AT LAW JOHN A.WIJIPPLE SUSAN G.LILLIS(of counsel) JOHN G.KING 49 FEDERAL STREET CELESTE A.NIARCHOS SALEM,MASSACHUSETTS 01970-3469 CHARLENI:FOY GIBNEY (978)745-3363 IPSWICH OFFICE: RICHARD M.KALLMAN 25 MARKET STREET IPSWICH,MA 01938 M.DONNA MANDRIOTA FAX(978)745-6209 (978)356-2933 TAN W.MOORES FACSIMILE(978)356-9663 ELIZABETH W.DAILEY STEPHEN G.FINN(of counsel) July 20, 1998 Joseph J. O'Neil and Joan S. O'Neil, Trustees of J & J Realty Trust 89 Margin Street Salem, MA 01970 RE: Lot 4, 63 Jefferson Avenue, Salem, Massachusetts ("Property") Dear Mr. and Mrs. O'Neil: At the time of recording of a Deed to the Property to you from Rita L Kerr ("Seller") dated July 16, 1998, recorded on July 20, 1998 in Book 14961 , Page 316, we examined the records at the Essex South District Registry of Deeds and find that according to said records, the Seller held good, clear and marketable record title to the Property, free from all encumbrances which would materially affect the title, up through h the recording of said Deed, excepting only those matters set forth below: 1 . Any condition, discrepancy, error in description, encroachment, overlap or other fact which an examination or survey of the actual premises might reveal. 2. Current real estate taxes and assessments, not now due and payable, other municipal taxes, assessments and liens referred to in Massachusetts General Laws, Chapter 164, Section 58B-58F which are not a matter of record and any errors or omissions in Certificates of Municipal Liens. 3. Applicable building and zoning laws and building and health codes or by-laws of the city or town in which the property is located. 4. Rights or claims of parties in possession; and easements, licenses and Joseph J. O'Neil and Joan S. O'Neil, Trustees July 20, 1998 Page 2 profits a prendre, not a matter of record and other matters not properly indexed and recorded. 5. Any liability for mechanics or materialmen's liens, not a matter of record at the time of the recording of the Deed. 6. Those encumbrances referred to in Massachusetts General Laws, Chapter 1 5 Section 4 p 86 whether or not title to the property is registered, if record notice of such encumbrances is not properly indexed and recorded. 7. Any state of facts which would be disclosed by an accurate survey and personal inspection of the premises. 8. Those matters set forth on Schedule A attached hereto and incorporated herein by reference. This Certificate of Title shall be limited in its use to the addressee hereof and does not extend to any subsequent conveyance, mortgage or other transaction. WHIPPLE & KING, P.C. By: John' hippie SCHEDULE A LOT 4, 63 JEFFERSON AVENUE, SALEM, MASSACHUSETTS JULY 20, 1998 1 . Reservations and restrictions set forth in Deed of Boston and Maine Railroad to Alice M. Mahoney dated April 21 , 1960, recorded with Essex South District Registry of Deeds in Book 4674, Page 593. 2. Restriction set forth in Deed of Boston and Maine Railroad to HIA Pearl Corporation dated April 1 , 1961 , recorded with said Registry in Book 4847, Page 396. 3. Decision on the Petition of Kerr Leather Company requesting a Variance issued by the Board of Appeals of the City of Salem, set forth in instrument recorded in Book 14558, page 445. 4. Terms and provisions of J & J Realty Trust u/d/t dated July 16, 1998, recorded with said Registry in Book 14961 , Page 309. 5. Common Driveway Easement Agreement dated July 16, 1998, between Rita L. Kerr and Joseph J. O'Neil, Jr. and Joan S. O'Neil, Trustees of J & J Realty Trust, recorded with said Registry in Book 14961 , Page 317. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY (10-17-92) g 22 0044 106 00001036 CHICAGO TITLE INSURANCE COMPANY 3 :F 4 1. i 1i t i SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, CHICAGO TITLE INSURANCE COMPANY,a Missouri corporation,herein called the Company,insures,as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or i incurred by the insured by reason of.- 1. f:1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but T' only to the extent provided in the Conditions and Stipulations. In Witness Whereof,CHICAGO TITLE INSURANCE COMPANY has caused this policy to be signed and sealed as f of Date of Policy shown in Schedule A,the policy to become valid when countersigned by an authorized signatory. Y" F l 1' ti 4 H` Issued by: CHICAGO TITLE INSURANCE COMPANY WHIPPLE &KING, P.C. By: 49 FEDERAL STREET SALEM, 01970 (978) 744-5353 32 �• - President eR'''`"u t3 y4 By: . F � j.( �.lV�WI ✓w Secretary ..:.'i 'Y"..'Y v .9 '!#:.x i '�':i ALTA Owner's Policy(10-17-92) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage,costs,attorneys'fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land;(iii)a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part;or(Iv)environmental protection,or the effect of any violation of these laws,ordinances or governmental regulations,except to the extent that a notice of the enforcement thereof or a notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by(a)above,except to the extent that a notice of the exercise thereof or a notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of -- Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects,liens,encumbrances,adverse claims or other matters: (a) created,suffered,assumed or agreed to by the insured claimant; (b) not known to the Company,not recorded in the public records at Date of Policy,but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy;or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. 4. Any claim,which arises out of the transaction vesting in the Insured the estate or interest insured by this policy,by reason of the operation of federal bankruptcy,state insolvency,or similar creditors'rights laws,that is based on: (i) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer;or (ii) the transaction creating the estate or Interest Insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer;or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. C H I C A G O T I T L E I N S U R A N C E C O . SCHEDULE A Policy Number: 22-0044-106-00001036 Agent File No. : 10496-23 Date of Policy: July 20, 1996 Time: 12 :30 p.m. -------------------------------------------------------------------- ----------- Amount of Insurance: $130, 000.00 1. Name of Insured: JOSEPH J. O'NEIL, JR. and JOAN S. O'NEIL, TRUSTEES OF J & J REALTY TRUST by deed dated July 16, 1998 and recorded with the Essex South District Registry of Deeds in Book 14961 and Page 316. 2. The estate or interest in the land which is covered by this Policy is: Fee Simple 3. Title to the estate or interest in the land is vested in the insured. 4. The land herein described is encumbered by the following mortgage or trust deed, and assignments: - NONE S. The land referred to in this policy is located at Lot 4, 63 Jefferson Avenue in the City of Salem County of Essex, Commonwealth of Massachusetts and is described as follows: SEE SCHEDULE A DESCRIPTION ATTACHED This Policy valid only if Schedule B is attached. SCHEDULE A Loan/Owners Reorder Form No. 3200 (Rev. 7/93) SCHEDULE A The land situated on Jefferson Avenue, Salem, Essex County, Massachusetts, being shown as Lot 4 on a Plan entitled "Subdivision Plan of Land Located in Salem, Mass. " prepared by Eastern Land Survey Associates, Inc. for Hugh Kerr, dated September 24, 1997, recorded with Essex South District Registry of Deeds, Plan Book 323, Plan 17. C H I C A G O T I T L E I N S U R A N C E C O . SCHEDULE B Policy Number: 22-0044-106-00001036 (Owners) Policy Number: (Loan) EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage by reason of the following: 1. Rights of present tenants, lessees or parties in possession. 2. Any liability for mechanics' or materialmen's liens. 3 . Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which an accurate survey and inspection of the premises would disclose. 4 . The mortgage, if any, referred to in Item 4 of Schedule A. (NOTE: This exception does NOT apply to Loan Policies. ) 5 . Liens for taxes and assessments which become due and payable subsequent to the date of policy. Taxes are paid through June 30, 1998 . 6 . IF THE INSURED PREMISES IS A CONDOMINIUM UNIT: a. Covenants, conditions, restrictions, reservations, easements, liens for assessments, options, powers of attorney, and limitations on title, created by the laws of the state of the insured premises or set forth in the Master Deed or Declaration of Condominium, in the related By-Laws, in the Declaration of Trust, or Site Plans and Floor Plans as duly recorded in the appropriate land records office and as the same may have been lawfully amended, and in any instrument creating the estate or interest insured by this policy. b. Loss or damage arising as a result of liens for common charges or attorney's fees pursuant to Chapter 400 of the Acts of 1992 . (NOTE: Exception 6 b. ONLY applies to condominium units located in the Commonwealth of Massachusetts. ) 7 . Reservations and restrictions set forth in deed of Boston and Maine Railroad to Alice M. Mahoney dated April 21, 1960, recorded with Essex South District Registry of Deeds in Book 4674, Page 593 . 8 . Restriction set forth in deed of Boston and Maine Railroad to HIA Pearl Corporation dated April 1, 1961;, recorded with said Registry in Book 4847, Page 396. 9 . Terms and provisions of J & J Realty Trust u/d/t dated July 16, 1998, recorded with said Registry in Book 14961, Page 309. CONTINUED-NEXT PAGE SCHEDULE B-Continued • 10. Common Driveway Easement Agreement dated July 16, 1998, between. Rita L. Kerr and Joseph J. O'Neil, Jr. and Joan S. O'Neil, Trustees of J & J Realty Trust, recorded with Essex South District Registry of Deeds in Book 14961, Page 317. NOTE: While such matters are excluded from the coverage of this Policy, attention is directed to the fact that the records of the Essex South District Registry of Deeds show that the insured premises are subject to the following: a. Decision on the Petition of Kerr Leather Company requesting a Variance issued by the Board of Appeals of the City of Salem, set forth in instrument recorded in Book 14558, Page 445. Countersigned: NOTE: The following endorsements appearing after Schedule B are an integral part of this policy: None. � Authori V ignatory VI CONDITIONS AND STIPULATIONS 1. DEFINITION OF TERMS (c)Whenever the Company shall have brought an action or interposed a The following terms when used in this policy mean: defense as required or permitted by the provisions of this policy,the Company (a) "insured":the insured named in Schedule A,and,subject to any rights may pursue any litigation to final determination by a court of competent juris- or defenses the Company would have had against the named insured,those diction and expressly reserves the right,in its sole discretion,to appeal from who succeed to the interest of the named insured by operation of law as any adverse judgment or order. distinguished from purchase including,but not limited to,heirs,distributees, (d)In all cases where this policy permits or requires the Company to prose- devisees, survivors, personal representatives, next of kin, or corporate or cute or provide for the defense of any action or proceeding,the insured shall fiduciary successors. secure to the Company the right to so prosecute or provide defense in the (b)"insured claimant":an insured claiming loss or damage. action or proceeding, and all appeals therein, and permit the Company to (c)"knowledge" or "known": actual knowledge, not constructive knowl- use, at its option, the name of the insured for this purpose. Whenever edge or notice which may be imputed to an insured by reason of the public requested by the Company,the insured,atthe Company's expense,shallgive I reasonable aid (i) in any action or proceeding, securing records as defined in this policy or any other records which impart construc- the Company al rive notice of matters affecting the land. evidence,obtaining witnesses, prosecuting or defending the action or pro- d 'land":the land described or referred to in Schedule A,and improve- ceeding,or effecting settlement,and(ii)in any other lawful act which in the (d) opinion of the Company maybe necessary or desirable to establish the title to ments affixed thereto which by law constitute real property.The term"land" the estate or interest as insured.If the Company is prejudiced by the failure of does not include any property beyond the lines of the area described or the insured to furnish the required cooperation,the Company's obligations to referred to in Schedule A,nor any right,title,interest,estate or easement in the insured under the policy shall terminate,including any liability or obliga- abutting streets,roads,avenues,alleys,lanes,ways or waterways,but noth- tion to defend,prosecute,or continue any litigation,with regard to the matter- ing herein shall modify or limit the extent to which a right of access to and from or matters requiring such cooperation. the land is insured by this policy. (e)"mortgage": mortgage, deed of trust, trust deed, or other security 5. PROOF OF LOSS OR DAMAGE instrument. In addition to and afterthe notices required under Section 3 of these Condi- (f)"public records": records established under state statutes at Date of tions and Stipulations have been provided the Company, a proof of loss or Policy for the purpose of imparting constructive notice of matters relating to damage signed and sworn to by the insured claimant shall be furnished to the real property to purchasers for value and without knowledge.With respect to Company within 90 days atter the insured claimant shall ascertain the facts Section 1(a)(iv)of the Exclusions From Coverage,"public records"shall also giving rise to the loss or damage.The proof of loss or damage shall describe include environmental protection liens filed in the records of the clerk of the the defect in, or lien or encumbrance on the title, or other matter insured United States district court for the district in which the land is located. against by this policy which constitutes the basis of loss or damage and shall (g)"unmarketability of the title": an alleged or apparent matter affecting state,to the extent possible,the basis of calculating the amount of the loss or the title to the land, not excluded or excepted from coverage,which would damage.If the Company is prejudiced by the failure of the insured claimant to entitle a purchaser of the estate or interest described in Schedule A to be provide the required proof of loss or damage,the Company's obligations to released from the obligation to purchase by virtue of a contractual condition the insured under the policy shall terminate,including any liability or obliga- requiring the delivery of marketable title. tion to defend,prosecute,or continue any litigation,with regard to the matter or matters requiring such proof of loss or damage. 2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE In addition,the insured claimant may reasonably be required to submit to The coverage of this policy shall continue in force as of Date of Policy in examination under oath by any authorized representative of the Company favor of an insured only so long as the insured retains an estate or interest in and shall produce for examination,inspection and copying, at such reason- the land,or holds an indebtedness secured by a purchase money mortgage able times and places as may be designated by any authorized representative given by a purchaser from the insured,or only so long as the insured shall of the Company, all records, books, ledgers, checks, correspondence and have liability by reason of covenants of warranty made by the insured in any memoranda, whether bearing a date before or after Date of Policy, which transfer or conveyance of the estate or interest.This policy shall not continue reasonably pertain to the loss or damage.Further,if requested by any autho- in force in favor of any purchaser from the insured of either(i)an estate or rized representative of the Company, the insured claimant shall grant its interest in the land, or(ii) an indebtedness secured by a purchase money permission, in writing,for any authorized representative of the Company to mortgage given to the insured. examine, inspect and copy all records, books, ledgers, checks, correspon- dence and memoranda in the custody orcontrol of a third party,which reason- 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT ably pertain to the loss or damage.All information designated as confidential The insured shall notify the Company promptly in writing(i)in case of any by the insured claimant provided to the Company pursuant to this Section litigation as set forth in Section 4(a)below,(ii)in case knowledge shall come to shall not be disclosed to others unless, in the reasonable judgment of the an insured hereunder of any claim of title or interest which is adverse to the Company, it is necessary in the administration of the claim. Failure of the title to the estate or interest,as insured,and which might cause loss or dam- insured claimant to submit for examination under oath,produce other reason- age for which the Company may be liable by virtue of this policy,or(Iii)if title to ably requested information or grant permission to secure reasonably neces- the estate or interest,as insured,is rejected as unmarketable.If prompt notice sary information from third parties as required in this paragraph shall termi- shall not be given to the Company,then as to the insured all liability of the nate any liability of the Company under this policy as to that claim. Company shall terminate with regard to the matter or matters for which prompt notice is required;provided,however,that failure to notify the Company shall 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS;TERMINATION in no case prejudice the rights of any insured under this policy unless the OF LIABILITY Company shall be prejudiced by the failure and then only to the extent of the In case of a claim under this policy,the Company shall have the following prejudice. additional options: 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED (a)To Pay or Tender Payment of the Amount of Insurance. CLAIMANT TO COOPERATE To pay or tender payment of the amount of insurance under this policy a)Upon written request by the insured and subject to the options con- together with any costs,attorneys'fees and expenses incurred by the insured ( its claimant,which were authorized bythe Company,up to the time of payment or tai(a) in Section 6 of these Conditions and Stipulations,the Company, c tender of payment and which the Company is obligated to pay. own cost and without unreasonable delay,shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title Upon the exercise by the Company of this option,all liability and obligations or interest as insured,but only as to those stated causes of action alleging a to the insured under this policy,other than to make the payment required,shall defect,lien or encumbrance or other matter insured against by this policy.The Carminate, including any liability or obligation to defend, prosecute, orcon- Company shall have the right to select counsel of its choice(subject to the tinue any litigation,and the policy shall be surrendered to the Company for right of the insured to object for reasonable cause)to represent the insured as cancellation. to those stated causes of action and shall not be liable for and will not pay the (b)To Pay or Otherwise Settle With Parties Other than the Insured or fees of any other counsel. The Company will not pay any fees, costs or With the Insured Claimant. expenses incurred by the insured in the defense of those causes of action (i)to pay or otherwise settle with other parties for or in the name of an which allege matters not insured against by this policy. insured claimant any claim insured against underthis policy,togetherwith any (b)The Company shall have the right, at its own cost, to institute and costs,attorneys'fees and expenses incurred by the insured claimant which prosecute any action or proceeding or to do any other act which in its opinion were authorized by the Company up to the time of payment and which the may be necessary or desirable to establish the title to the estate or interest,as Company is obligated to pay;or insured,or to prevent or reduce loss or damage to the insured.The Company (ii)to pay or otherwise settle with the insured claimant the loss or damage may take any appropriate action under the terms of this policy,whether or not provided for under this policy,together with any costs, attorneys' fees and it shall be liable hereunder,and shall notthereby concede liability orwaive any expenses incurred by the insured claimant which were authorized by the provision of this policy. If the Company shall exercise its rights under this Company up to the time of payment and which the Company is obligated to paragraph.it shall do so diligently. pay. Upon the exercise by th ,Company of either of the options provided for in (b)When liability and the extent of loss or damage has been definitely fixed paragraphs(b)(i)or(ii),th;Company's obligations to the insured under this in accordance with these Conditions and Stipulations, the loss or damage Policy for the claimed loss or damage,other than the payments required to be shall be payable within 30 days thereafter. made, shall terminate, including any liability or obligation to defend, prose- cute or continue any litigation. 13. SUBROGATION UPON PAYMENT OR SETTLEMENT 7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE (a) The Company's Right of Subrogation. This policy is a contract of indemnity against actual monetary loss or dam- Whenever the Company shall have settled and paid a claim under this age sustained or incurred by the insured claimant who has suffered loss or policy,all right of subrogation shall vest in the Company unaffected by any ac; damage by reason of matters insured against by this policy and only to the of the insured claimant, extent herein described. The Company shall be subrogated to and be entitled to all rights and (a)The liability of the Company under this policy shall not exceed the least remedies which the insured claimant would have had against any person or of: property in respect to the claim had this policy not been issued.if requested by (i)the Amount of Insurance stated in Schedule A;or, the Company, the insured claimant shall transfer to the Company all rights (ii)the difference between the value of the insured estate or interest as and remedies against any person or property necessary in order to perfect insured and the value of the insured estate or interest subject to the defect, this right of subrogation.The insured claimant shall permit the Company tc lien or encumbrance insured against by this policy. sue,compromise or settle in the name of the insured claimant and to use the (b)In the event the Amount of Insurance stated in Schedule A at the Date of name of the insured claimant in any transaction or litigation involving these Policy is less than 80 percent of the value of the insured estate or interest or rights or remedies. the full consideration paid for the land,whichever is less,or if subsequent to If a payment on account of a claim does not fully cover the loss of the the Date of Policy an improvement is erected on the land which increases the insured claimant,the Company shall be subrogated to these rights and reme- value of the insured estate or interest by at least 20 percent over the Amount of dies in the proportion which the Company's payment bears to the whole Insurance staled in Schedule A,then this Policy is subject to the following: amount of the loss. (i)where no subsequent improvement has been made,as to any partial If loss should result from any act of the insured claimant,as stated above, loss,the Company shall only pay the loss pro rata in the proportion that the that act shall not void this policy, but the Company, in that event, shall be amount of insurance at Date of Policy bears to the total value of the insured required to pay only that part of any losses insured against by this policy which estate or interest at Date of Policy;or shall exceed the amount,if any,lost to the Company by reason of the impair- (ii)where a subsequent improvement has been made, as to any partial ment by the insured claimant of the Company's right of subrogation. loss,the Company shall only pay the loss pro rata in the proportion that 120 percent of the Amount of Insurance stated in Schedule A bears to the sum of (b) The Company's Rights Against Non-insured Obligors. the Amount of Insurance stated in Schedule A and the amount expended for The Company's right of subrogation against non-insured obligors shall the improvement. exist and shall include,without limitation,the rights of the insured to indem- The provisions of this paragraph shall not apply to costs, attorneys' fees nities,guaranties,other policies of insurance or bonds, notwithstanding any and expenses forwhich the Companyis liable underthis policy,and shall only terms orconditions contained inthose instruments which provide forsubroga- applyto that portionof any losswhich exceeds,intheaggregate,10 percentof lion rights by reason of this policy. the Amount of Insurance stated in Schedule A. (c)The Company will pay only those costs,attorneys'fees and expenses 14• ARBITRATION incurred in accordance with Section 4 of these Conditions and Stipulations. Unless prohibited by applicable law,either the Company orthe insured may 8. APPORTIONMENT demand arbitration pursuant to the Title Insurance Arbitration Rules of the If the land described in Schedule A consists of two or more Parcels which American Arbitration Association.Arbitrable matters may include,but are not P limited to, any controversy or claim between the Company and the insured are not used as a single site,and a loss is established affecting one or more of arising out of or relating to this policy,any service of the Company in connec- the parcels but not all,the loss shall be computed and settled on a pro rata tion with its issuance or the breach of a policy provision or other obligation.All basis as if the amount of insurance underthis policy was divided pro rata as to arbitrable matters when the Amount of Insurance is$1,000,000 or less shall the value on Date of Policy of each separate parcel to the whole,exclusive of be arbitrated at the option of either the Company or the insured.All arbitrable any improvements made subsequent to Date of Policy, unless a liability or matters when the Amount of Insurance is in excess of$1,000,000 shall be value has otherwise been agreed upon as to each parcel by the Company and arbitrated only when agreed to by both the Company and the insured.Arbitra- (he insured at thetime of the issuance of this policy and shown by an express tion pursuant to this policy and under the Rules in effect on the date the statement or by an endorsement attached to this policy. demand for arbitration is made or,at the option of the insured,the Rules in 9. LIMITATION OF LIABILITY effect at Date of Policy shall be binding upon the parties. The award may (a)If the Company establishes the title,or removes the alleged defect,lien include attorneys'fees only if the laws of the state in which the land is located or encumbrance,or cures the lack of a right of access to or from the land,or Permit a court to award attorneys'fees to a prevailing party.Judgment upon cures the claim of unmarketability of title, all as insured, in a reasonably the award rendered by the Arbitrators) may be entered in any court having diligent manner by any method,including litigation and the completion of any jurisdiction thereof. appeals therefrom,it shall have fully performed its obligations with respect to The law of the situs of the land shall apply to an arbitration under the Title that matter and shall not be liable for any loss or damage caused thereby. Insurance Arbitration Rules. (b)In the event of any litigation,including litigation by the Company or with A copy of the Rules may be obtained from the Company upon request. the Company's consent,the Company shall have no liability for loss or dam- age until there has been afinal determination by a court of competent jurisdic- 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT tion,and disposition of all appeals therefrom,adverse to the title as insured. (a)This policytogether with all endorsements,if any,attached hereto bythe (c)The Company shall not be liable for loss or damage to any insured for Company is the entire policy and contract between the insured and the Com- liability voluntarily assumed by the insured in settling any claim or suit without pany.In interpreting any provision of this policy,this policy shall be construed the prior written consent of the Company. as a whole. 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF (b)Any claim of loss or damage,whether or not based on negligence,and LIABILITY which arises out of the status of the title to the estate or interest covered All payments under this policy,except payments made for costs,attorneys' hereby or by any action asserting such claim,shall be restricted to this policy. fees and expenses,shall reduce the amount of the insurance pro tanto. (c)No amendment of or endorsement to this policy can be made except by 11. LIABILITY NONCUMULATIVE a writing endorsed hereon or attached hereto signed by eitherthe President,a It is expressly understood that the amount of insurance under this policy Vice President,the Secretary,an Assistant Secretary,or validating officer or shall be reduced b an amount the Company may authorized signatory of the Company. Y Y p y y pay under any policy insuring.a mortgage to which exception is taken in Schedule B or to which the 16. SEVERABILITY insured has agreed, assumed, or taken subject, or which is hereafter ex- ecuted by an insured and which is a charge or lien on the estate or interest In the event any provision of the policy held invalid or unenforceable described or referred to in Schedule A, and the amount so paid shall be under applicable law,the policy shall n deemed not to include that provision i deemed a payment under this policy to the insured owner. and all other provisions shall remain n full force and effect. 12. PAYMENT OF LOSS 17. NOTICES,WHERE SENT (a)No payment shall be made without producing this policy for endorse- All notices required to be given the Company and any statement in writing ment of the payment unless the policy has been lost or destroyed,in which required to be furnished the Company shall include the number of this policy case proof of loss or destruction shall be furnished to the satisfaction of the and shall be addressed to the Company at the issuing office or to: Company. Chicago Title Insurance Company Claims Department Reorder Form No.8256(Rev.10-17-62) 171 North Clark Street Chicago, Illinois 60601-3294