41 MEMORIAL DRIVE - BUILDING INSPECTION �, y1 Me� r�a� ��iv�
D ±aaKS�).iR ,e�I s2f1
EASENENT
McNeil 6 Associates, Inc., a Massachusetts corporation
with its usual place of business at 420 Providence Highway,
Westwood, Massachusetts and its successors and assigns
("Grantor") for consideration paid hereby grants to the City of
Salem, a municipal corporation under the laws of the
Commonwealth of Massachusetts, having its principal city
offices at 91 Washington Street, Salem, Essex County,
Massachusetts ("Grantee"), a perpetual access easement as
specifically shown on a plan of land entitled, "Plan of Land in
Salem, Mass.", prepared by Essex Survey Service, loc.,
- Surveyor, dated May 1, 1985, recorded herewith and described
according to said plan as follows:
An area fifteen (15) feet wide on Lot H along the westerly
p roperry line of Lot I adjacent to Lot A and the Lot
entitled "Area Tidal Flats - 4,71+ acs."
There shall be no picnicking, loitering, drinking of
alcoholic beverages, littering, motorcycling or ocher such D
action allowed on this easement and no public boating,
swimming, fishing, sunbathing or other such use on the premises ti
in conjunction with the use of this easement. o
0
UECUTED as a sealed instrument this day of
1985.
i
McNeil Assoc Lates, Inc.
by:
�✓ m
COMMONWEALTH OF MASSACHUSETTS
Nor£�e1it, as �'.-�y.L.� '7 1985
lly appeared the above-named a-4 - f/ "✓,
of McNeil 6 Associates, Inc. and
acknowledged the foregoing instrument to be the free act and
deed of McNeil 6 Associates, Inc., before me.
My Commission expires:
(000)
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P F�y
Ys 1 `
_ x . Fade on � � _y and
- Salem (Her_. . . and Iklveil S ates ,
- -er called
_ -ETH
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' shes to ses Pu=' := prcperty locates :_ �_morial
• al � � :_ . _
, f
v'• ass. , which was ' ._- ; use_ a public health ^c; _=„al (her(
,
-- _- _ "Property") , (Sa= aopea""; herein as ExhibS ;
_--_ =:ne City has ado--:=- = . aster P'I�n which projects a -,using use
i.
-' ore mentioned roper.y; and
k 4yc
_fter a request Dosals was advertised, the a,.,ve named
—:tted a proposal for residential conversion of the surplus
- - -- '; and
( _ .aid property, has bee- declared to be surplus and nc Tenger re-
= c property by the C :y of Saler, Department of Public Property.
-' FORE, the City and _-.e; Developer hereby-convenant and agree
PURCHASE PRICE
-- _-- all the terms , comenants ,
ant conditions of the agreement th
Cit -- the Property to the Developer for, and the Developer will pur-
chase -_rly from the City a.-.d pay therefor, Six Hundred Twenty-Five
Th _.- C:�a-s
(5625,D00.00)> hereinafter czlled "Purchase rice% to
oube
pa ' cap- by certified cineck simultaneously with the delivery of the
Ip
Deed r_- the Property to the Developer.
SECTIO. 2. VEYANCE OF PROPERTY
f (a ) r_"- 7_ed. The City shall convey title to the Property by deed to tt
i Develo,_rw` ,out covenants (hereinafter called "Deed" ). The Developer shat '
( thin 2.9 de_,s of this Agreement, examine the title that the City is able to
( convey to determine whether or not said title is good, clear , marketable, a(
insurable in accordance with the accepted standards for Title Examiners in t'.
Commonwealth of I.lassachusetts . This Agreement is subject to Buyer obtaining
Policy of title insurance insuring fee title to the premises , free from all
encumbrances ;xcept as set forth in this Agreement, to be issued to the Buye
by a recognized title insurance company in the standard ALTA owner ' s form
Such policy must Je free Of any exceptIOrs which would affect the markEt-
ability of residential condominiums on the site , except for,
( i ) Provisions of existing buiidino and zoning Iav�s providing the same
are consistent with Section 2(a ) and 4 (a ) herein.
( ii ) Any liens for municipal betterments assessed after the date of the
delivery of the Deed.
Such conveyance and title shall , in addition to the conditions subsequent pro-
vided for in Section II hereof, and to all other conditions , covenants , and
restrictions set forth or referred to elsewhere in the Agreement be subject to
the following conditions :
1. ) The Developer shall comply with the conditions set forth by the City
Council vote dated April 25. 1985.
® 2. ) The Developer shall complete the improvements in accordance with the
approved construction plans ;
3. ) The Developer shall comply with all applicable building and zoning laws ,
rules and reaulations. -
4 . ) The Developer agrees to construct a gravel pathway along the entire ocean
front perimeter of the subject, as shown on the approved site plan enti -
tled "Collins Cove Condominiums" dated March 22, 1983, Architects ; Claude
Miquelle Arch. Assoc. , an appropriate width, not less than four feet
wide , so as not to cause damage to the shoreline , which shall be open to
the public during the hours of 9:00 a .m. and sunset. The pathway Lay be
dated at sunset. No picnicking, loitering , drinking of alcoholic bever-
ages , littering , motorcycling, or other such actions shall be allowed on
• this walkway or other public easements . No public boating, swimming,
fishing, sunbathing , or other such use shall be allowed on the property
in conjunction with the use of this walkway.
5.. ) The Developer agrees to construct a new building with docking facilities ,
on the pier which is presently encumbered with a structure known as the
• Crow 11 Club. The Developer agrees to allow owners of the condominiums ,
residents of Salem and menbers of the Crow 11 Club to use the subject
pier facilities , at regularly scheduled hours , on a free basis , for the
sole purpose of providing access for small crafts to and from Collins
Cove. No public automobile parking or boat storage will be allowed on
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t,h2 pier unless appro the owner. The Developer further
ed in writing by t
c n ion of the new structure to
" he Crow II Club. The
4 aerePs 'o lase a P
ti based upon ` actua ce o constructing
reAL Ft
operating and maintaining the leased area .
to the maximum extent possible ,
o. ) The Developer shall maintain and preserve
natural stands of gees , and shall
treat u11 natural and topographical
i features in a manner designed to preserve the presently existing natural
conditions of the Property consistent with the approved construction plans .
g, ) The Developer Shall in, developing its design and site plans comply with
the procedures of the City of Salem Planning Board.
o. ) The Developer, prior to the date set for delivery of the. Deed shall have
val of the City of Salem' s Building In-
prepared and received the appro
Spector of its final actual construction plans and related documents ,
® which approval by the Building Inspector shall not be unreasonably with-
held , conditioned or delayed.
10. ) The Developer shall , no later than 30 days Prior to the date set for the
delivery of the Deed , submit to the City evidence of construction finznc-
ing and/or equity capital , sufficient to complete the improvements . The
term "improvements" as used in this Agreement , means the improvements
ction documents to be approved by the City
defined in the final constru
of Salem Building Inspector. the Dev
) days after the
eloper and ap-
Il. `, The construction of the improvements proposed by
proved by the City
shall be commenced within ninety (90
date of delivery of the Deed set forth herein shall jbedelcompleted
ton
accordance with approved plans . In the
event the Deed
the Developer after the month of September, the Developer shall have the
® on until March of the following
option to withhold the start of constructi
year.
12. ) The conveyance of the 9.72 acres of tidal flats shall be subject o an
easement to the City of Salem to permit the use of said flats for any,
and all purposes to which tidal flats may currently
be used, including
clamming. The City shall have the right , consistent with the Zoning
Board of Appeals ' appy"oval , to purchase said flats for 51 .00.
It is
understood and agreed that neither the city or 11cl1eil 5 Associates shall
fill the subject clam flats .
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o cor,structicn other than zhe dockino facilities at the pier shall be
located or performed on or in the said flats , dredging shall be permitted ,
subject to approval by the appropriate authorities .
i
- • ) The Developer shall construct no more than 36 units with garzees and a
clubhouse on the Property.
t he Develcoer agrees to reimburse the City Twenty-three Thousand Dollars
I
(523 ,000.00) for the demolition and removal of the old health hospital ,
i provided all the approvals necessary to construct the proposed 36 condo-
miniums and clubhouse are granted.
16. ) The Developer will assume the cost of appraisals of the property in the
amount of Five Thousand Five Hundred Dollars ($5,500.00) .
li. ) The existing two-story, wooden building, known as the Crow II Club, will
be demolished by the Developer and replaced with a new clubhouse facility,
half of which will be leased to the Crow II Club pursuant to Section 2(2)5
® of this Aqreement.
18. ) . The City agrees to cooperate with the Developer in obtaining moorings for
the subject condominiums pursuant to applicable rules and regulations .
19. ) All development will be limited to the 6. 95 acres of upland area contained
in the parcel .
20. ) The cemetery site will , as defined , be restored and retained in per-
petuity and public access will be allowed.
21. ) Publjc access to beach areas, as defined, will not be denied.
22. ) Developer will grant to the City a 15-foot permanent and perpetual
easement along the eastern boundary from Memorial Drive to the water (or
the City will retain ownership in a 15-foot area along the eastern
boundary from Memorial Drive to the water) and place no restrictions on
public access .
e3. ) Developer will construct a gravel path along the entire shoreline and
grant the City a permanent and perpetual easement for public access to
said path (or the City will retain ownership in 'Isaid path) .
24. ) The Developer and the City agree the aforementioned conditions , as well
• as the conditions in the original Agreement , sha',11 be covenants running
with the land enforceable against the Developer land its successors and
gal
assigns and so recited in the deed to the Developer.
25. ) The Developer shall cause to be prepared, by a qualified Massachusetts
Eneineer or Surveyor, a plan of the Property suitable for recording at the
Essex South District Registry of Deeds . Said plan is to be completed prior
to closino.
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?lace for velivery and P.cceov
tance of Deed. he City shall delier
the Deed and possession of the Property to ne Developer_ t 1D:00 a .m. on
b �
or befcre roar months from the date hereon , or at such ether time or date
as the parties hereto may mutually agree in writing „ al--` the Developer
shall thereupon accept,.the Deed and join, as grantee , in the execution
thereof. Not withstanding anything to the contrary co^twined elsewhere in
this Agreement , upon the Developer ' s certification to City that all neces-
sary and relevant applications have been filed and actions taken and the
same are being diligently processed by the Developer, the time for the
performance by the Developer shall be automatically extended to the time
needed to complete the determinations defined in Section 4 .
(c ) Recordation of Deed. The Developer shall promptly file the Deed for re-
cordation among. the land records of the place in which the property is
situated. The Developer shall pay tests ( includinoithe cost of the state
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documentary stamp tax on the Deed, for which stamps ! in the proper amount
shall be affixed to the Deed by the Developer) for so recording the Deed.
SECTION 3. GOOD FAITH DEPOSIT
(a ) The Developer has , prior to or simultaneously with the execution of this
Agreement, delivered in escrow to the City a refundable Good Faith Deposit
of cash or certified check satisfactory to the City in the amount of
Twenty-Five Thousand (525,000. 00) Dollars hereinafter called "Deposit" .
Upon. the issuance of a valid building permit by the City, an additional
refundable Good Faith Deposit .of cash or certified check in the amount of s
Twenty-Five Thousand Dollars ($25,000. 00) shall be deposited with the
City in escrow. These deposits shall be ( 1 ) applied to Purchase Price at
the time set for conveyance of the Deed in Section 2(b) ; (2) or refundable
® to the Developer pursuant to Sections 2(a ) , 4 , and 11 hereon'; or (3) be
retained by the City as liquidated damages in accordance with Section lib
as the case may be.
SECTION 4 . ZONING , FINANCING , AND OTHER DETERMINATIONS
Developer' s performance of this agreement is subject to the following con-
ditions: (a )
on-ditions: (a ) The final approval of all applicable and/or relevant authorities
of all the subdivision and/or site plans and other japplications necessary
for the Developer to develop the subject premises to a condominium con:riunity
for a minimum of 36 residential units , (and the expiration of all appeal
periods and no appeals being taken) . This Agreement is subject to approval
pursuant to the Wetlands Protection Act (w.G. L. , Ch 131 , s . 40, as amended)
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end the Army Corps o? Engineers 1 . a;,;pliCabl e , and the aVa11ab1I1tV of
eubIic utilities . This Agreement is subject to Ind contingent upon the
Developer being able to obtain a mortgage co�=itment in the a-mount sufti -
cient to support the .construction of the approved plans and specifications ,
and funds being available at the closing for a first mortgage for a con-
struction and permanent loan at prevailing market rates , not to exceed 14%
from a bank, insurance company, or similar institution.
(b) The Crow II Club shall vacate the property simultaneously with the
transfer of title referred to herein until such time as the occupancy
permit for the new structure is issued and applicable leases executed.
(c) It is understood by both parties that the Power Plant is in the
process of converting to coal . It is recognized that the Power Plant may
have 8 significant adverse impact on the ability of McNeil & Associates
to market the proposed condominiums . McNeil & Associates , Inc. shall
® have the right, for a period of sixty (60) days from the date this Agree-
ment is executed , to analyze the impact of the conversion to coal at the
Power Plant, and determine whether or not said impact is too adverse as
to cause the proposal to be unfeasible. In, the event McNeil & Associates
determines said impact to be significantly adverse, which determination
shall be notified in writing and this Agreement shall be amended by mutual
agreement within thirty (30) days or, at the Developer' s option, all
Depokits shall be forthwith returned and this Agreement shall become null
and void. Neither party shall have recourse against the other.
SECTION 5. DEVELOPER'S OBLIGATIONS TO RUN WITH THE LAND
The Developer agrees of itself, its successors and assigns , and every suc-
cessor in interest to the Property , or any part thereof, and the Deed
® shall contain covenants on the part of the Developer for itself and its
successors and assigns , shall promptly begin and diligently complete the
Development of the Property. It is intended and agreed, and the Deed
shall so expressly provide, that these agreements and covenants shall be
covenants running with the land, binding for the benefit of the City, and
• enforceable by the City against the Developer and its successors and
assions to or of the Property or any interest therein.
SECTION 6. CERTIFICATE OF COMPLETION
Promptly after completion of the construction of the improvements in
accordance with this Agreement , the Building Inspector of the City will
furnish the Developer with an appropriate instrument so certifying. The
Certification by the Building Inspector shall be (and it shall be so
_c_
r'o. �ded In t1he Deed and iii the Certi7lCa=10n ltSeli ) a gond u s I v e deter-
'^l nation G- satisfaction and termination of `he covenants in the r.Gree RAE nt
and the Deed with re�,Pect to the obligations or the. Develeper and its
successors and ass ions to construct the improvements . The Certification
shall be in such form as will enable it to be recorded , if the Building
10 ru'O✓�<�(. I�.0 C:.ii i,",.Cl Yip L11.i1�.(iv� ins pzr"fCC
Inspector shall`; within twenty (20) days after written request by the
Developer, provide the Developer with a written statement indicating in
adequate detail how the Developer has failed to complete the construction
of the Improvements in conformity with the applicable City of Salem Zoning
Ordinance, Building Code or this Agreement , or is otherwise in default ,
and what measures or acts it will be necessary, in the opinion of the
City, for the Developer to take or perform in order to obtain the certifi -
cation. Such certification and such determination shall not constitute
evidence of compliance with or satisfaction of any obligation of the
® Developer to any holder of a mortgage , or any insurer of a mortgage,
securing money loaned to-finance the Improvements or any part thereof.
,1.,1C UCl u pan C�!
Said Certification shall not be a requirement relative to the sale"of J
individual units during construction, provided the Developer is proceeding
with the construction, consistent with market conditions[. Occ'7rw,ey er,Tii,Pcrfe9Nrr fo
UL' ,53„ed cu✓ •u�, e:i l,.,n/un•'/S
SECTION 7. NON-DISCRIMINATION me
The Developer agrees for itself, and its successors and assigns , and every
successor in interest to the Property, or any part thereof, and the Deed
shall contain covenants on the part of the Developer for itself, and its
successors and assigns , that the Developer and its successors and assigns
shall not discriminate upon the basis or race , color, creed , or national
oriein in the sale , lease , or rental or in the use or occupancy of the.
S Property of any improvements located or to be erected thereon, or any
part thereof.
SECTION 8. COVENANTS BINDING UPON SUCCESSORS IN INTEREST:
PERIOD OF DURATION
It is intended and agreed, and the Deed sh?.11 so expressly provide, that
the covenants provided in Section 2, 5, and 7 shall be covenants running
with the land binding to the fullest extent permitted by the law and
equity for the benefit and in favor or , and enforceable by the City. It
is further intended and agreed that the covenant provided in Section 7
shall remain in effect without limitation as to time .
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u• +.OP,T GA.GEES NOT 03LIGAiED TO CONST"UC
j+'otwithstanding any of the provisions of tills A.Qree�lent, include ng but
c limited to those which are intended to be covenants running with the
land , the holder of any mortgage authorized by this Agreement ( including
any holder who obtains title to the Property or any part thereof, but not
including (2) any other party who thereafter obtains title to the Property
or such part from or through such holder or (b) any other purchaser at
foreclosure sale other than the holder of the mortgage itself) shall not
be obligated by the provision of this Aoreement to construct or complete
the construction, nor shall any covenant or any other provision in the
Deed be construed to so obligate such holder. Nothing in this Section or
any other Section or provision of the Agreement shall be deemed or con-
strued to require any such holder to devote the Property or any part
thereof to any uses or improvements provided or permitted in the City of
Salem Zoning Ordinance, and this Agreement.
® .iECTION 10. ENFORCED DELAY IN PERFORMANCE
Neither the Developer, nor any successor in interest, shall be considered
in breach , or default of, its obligations with respect to the preparation
of the property for development or the commencement and completion of
construction of the Improvements , in the event of enforced delay in the
performance of such obligations due to unforseeable cause beyond its control
and without its fault or negligence. The time for the performance of the
obligations shall be extended for the period of the enforced delay, as
determined by the Building Inspector, if the party seeking the extension
shall request it in writing of the other party within twenty (20) days
after the beginning of the enforced delay.
SECTION 11. REMEDIES
® (a) In General . Except as otherwise provided in this Agreement, in the
event of any default in or breach of the Agreement , or any of its terms
and conditions , by either party hereto, or any successor to such party,
such party (or successor) shall , upon written notice from the other,
proceed immediately to cure or remedy such default or breach , and , in
any event, within sixty (60) days after receipt .of such notice. In case
such action is not taken or not diligently pursued , or the default or
breach shall not be cured or remedied within a reasonable time , the
aggrieved party may institute such proceedings as may be necessary or
desirable in its opinion to cure and remedy such default or breach ,
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including , but not limited to , proceedings to compel specific performance
by the party in default or breach of its obligations .
(b) Prior to Conveyance. In the event that prior to the conveyance of
the property to the Developer from the City, the Developer assigns or
attempts to assign this Agreement or any rights 'hereunder , to an entity
not controlled by the Developer, or there is any substantial change in the
ownership or distribution of the stock of the Developer or with respect to
the identity of the parties in control of the Developer or the decree
thereof, or the Developer fails to pay the Purchase Price and take title
to the Property upon tender of conveyance by the City, or fails to comply
With the conditions set forth in Section 2 herein, then this Agreement
and any rights of the Developer in this Agreement may at the option of
the City be' terminated by the City provided that the Ctiy has given the
® Developer thirty (30) days notice to enable the Developer to comply with
the applicable provisions , and the Deposit retained by the City as
liquidated damages , and retention of such deposit shall be the City' s
sole and exclusive remedy. In the event that the Developer is unable ,
after diligent effort to comply with Section 2(a� , 4 , and 14 , herein,
then this Agreement, shall at the option of the Developer be terminated
by the Developer and the Deposit returned without interest, to the
Developer, and this Agreement shall be null and void , and neither party
shall have recourse against the other.
SECTION 12. CONFLICT OF INTEREST: CITY ' S REPRESENTATIVES NOT INDIVIDUALLY LIABLE
No member, official , or employee of the City shall have any personal interest
in this Agreement, nor shall any such member , official , or employee partici -
pate in any decision relating to this Agreement which affects his personal .
interests or the interests of any corporation , partnership or association in
which he is , directly or indirectly, interested. No member, official or
employee of the City shall be personally liable to the Developer or any
successors or any obligation under the terms olf this Agreement.
i
SECTION 13. PROVISIONS 140T MERGED 14ITH DEED
• No Provision of the Ayreemen.t is intended to or shall be merged by reason
of any deed transferring title to the Property from the City to the
Developer, or any successor in interest , and any such deed shall not be
deemed to affect or impair the provisions and covenants of this Agreement.
_o_
��TiON 14 . CONDITIONS
The performance of the Developer of the Terms and Conditions set forth
herein are conditioned upon the following:
The granting by the authorized municipal boards or officials of all
permits and/or variances necessary for the completion of the construction
of the project.
SECTION 15. MUTUAL RELEASES
Upon delivery and acceptance of the deed as outlined in Section 2(b) , the
City and the De-veloper agree to execute mutual releases absolving each
other from any liability which may have occurred in the past regarding
prior agreements regarding the Property.
SECTION 16. COUNTERPARTS
The Agreement is executed in six counterparts , each of which shall con-
stitute one and the same instrument.
IN WITNESS THEREOF, the City has caused this Agreement to be duly executed
in its name and behalf by the Mayor and its seal to be hereunto duly
affixed and attested and the Developer has signed and sealed the same on
or as of the day and year first above written.
ATTEST CITY OF SALEM
IN THE PRESENCE OF: BY:
t '
Anthony V. SaYvo , Mayor
APPROVED AS TO FOR14: McNEIL 8 ASSOCIATES, INC.
By:
A�4
t4ichael E. O' Brien, Alexander H. President
City Solicitor
d
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o Jit.�.trn �• (�
�MIeE /V4.Q
CITY
ISAOF SALUSE S
Mr01 SA4 IVgSS
JEAN A. 1—EVE50UE
MAYOR
December 14, 1982
John A. Potorski , President
Crow II Club
78 Gardner Street
Peabody, Massachusetts 01960
Re: Expired Leasehold at Memorial Drive
Dear President Potorski :
As you know, the City of Salem has permitted your organization to
continue to maintain its headquarters building at Memorial Drive since the
expiration of your lease on April. 14, 1975•
As you also know, preparatory to the sale of the land formerly leased to
you and the land occupied by the former Ctiy Health Hospital , my office has
explored possible alternative sites which might be available to the Crow II
Club, including the lease or sale of available municipally-owned property.
Unfortunately, our efforts have not been rewarded with success , and the City
no longer has the luxury of time if it is to be successful in marketing the
site.
Ownership of the building on the site reverted to the City of Salem at the
termination of the lease according to its terms. `I am directing the Building_,
Inspector to request bids for the demolition of the building since its presence
represents an insurmountable obstacle to the sale of the land. Please make
arrangements to remove the Club' s and its members' personal property within
the next thirty (30) days.
will direct involved city departments to continue to cooperate with you
in your effort to relocate within the City of Salem. If you have any questions
please contact me. If for any reason the personal property cannot be removed
within thirty (30) days, please let me know the reason or reasons why noi, and
your proposed schedule of removal .
ery truly yours,
Jean A. Levesque
Mayor
• Certified Mail
Return Receipt Requested
JAL/smc