PRESERVATION RESTRICTION - THE SALEM ATHENAEUM - 337 ESSEX STREET PRESERVATION RESTRICTION AGREEMENT
between
THE PROPRIETORS OF THE SALEM ATHENAEUM
DB/A THE SALEM ATHENAEUM 1�1
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and the S4,ESSEX #120 Bk;39780 P9;193
04/20/2021 09:00 GRNT P9 1122
CITY OF SALEM,MASSACHUSETTS
BY AND THROUGH THE SALEM HISTORICAL COMMISSION
THIS PRESERVATION RESTRICTION AGREEMENT is made this 27th day of January,2020 by and
between THE PROPRIETORS OF THE SALEM ATHENAEUM,DB/A THE SALEM ATHENAEUM,
located at 337 Essex Street, Salem,Massachusetts("Grantor")and the CITY OF SALEM ("Grantee"),a
municipality duly organized under the laws of the Commonwealth of Massachusetts and located in Essex
County,Massachusetts,to be administered,managed and enforced by it agent,the SALEM
HISTORICAL COMMISSION,located at 98 Washington Street, Salem,Massachusetts,01970
("Commission"),
WHEREAS,the Grantor is the owner of certain real property(hereinafter referred to as"the Property")
with improvements thereon known as The Salem Athenaeum(hereinafter referred to as"the Building"),
located at 337 Essex Street, Salem,Massachusetts,more particularly described in a series of deeds: dated
April 13, 1906 from The Massachusetts New Church Union,a corporation organized under the laws of
the Commonwealth of Massachusetts,to the Proprietors of the Salem Athenaeum and recorded in Essex
South Registry of Deeds in Book 1821,Page 371; dated June 16, 1902 from Charles S. Rea and Charles
F.Curwen,Trustees under the will of Mary S.Curwen, late of Salem to the Proprietors of the Salem
Athenaeum and recorded in the Essex South Registry of Deeds in Book 1826,Page 330;dated June 11,
1906 from Ernest W. Curwen of Salem,guardian of Richard Brown Curwen,to the Proprietors of the
Salem Athenaeum and recorded in the Essex South Registry of Deeds in Book 1826,Page 331;and dated
June 8, 1906 from Charles F.Curwen,Betsey H.Curwen,James H. Curwen and Ernest W.Curwen of
Salem to the Proprietors of the Salem Athenaeum and recorded in the Essex South Registry of Deeds in
Book 1826,Page 332.A copy of the description of the Property is attached hereto and incorporated herein
by this reference as Exhibit A.
WHEREAS,the Building is described as follows, and also depicted in a set of four(4)photographic
images taken in September,2019,referenced by number in the following text,with copies of said images
attached hereto and incorporated herein by reference as Exhibit C:
Designed by Salem-native William Gibbons Rantoul(1867-1949),one of the region's most
talented early 20th-century architects,the Building was modeled after"Homewood,"the circa
1801 Baltimore,Maryland home of Charles Carroll,now a landmark on the Homewood campus
of Johns Hopkins University.
The Building is a rectangular 5x5 bay building oriented north towards Essex Street.The single
story Building rises from a brick foundation and is capped by a copper hipped roof.The Building
is constructed of brick laid in a Flemish bond pattern with marble,wood and stucco trim.
Windows are primarily 6/6 double-hung wood sash with small, six-light,fixed wood windows in
the basement.The Building is set back from the street within a lawn dotted by mature
rhododendrons.
Essentially Palladian in its symmetry,massing,tripartite composition,and symmetrical
fenestration,the Building's fagade(north)is dominated by a stylized,Corinthian-order four
columned,temple-front pavilion at its center,appropriate to its function as a center of learning.
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The main entrance faces north with granite steps leading to a seamed granite slab with iron
balustrade. The entrance features solid wooden double doors over a fluted marble threshold.
Flanking the doors are narrow,double-hung-sash windows,and above the lintel is a fan light with
decorative lead muntins forming a Palladian-style entryway. On either side of the front doors are
fluted pilasters topped with a projecting lintel.The pavilion is supported by four unfluted
Corinthian columns in wood,which are capped with an egg-and-dart motif band. The columns
support a wooden denticulated pediment that features carved garland and wheat decorative
elements and a shield-shaped window with an urn leaded pattern. At the junction of the pavilion
and the main block of the Building are two engaged,partially-fluted,Tuscan order columns with
square marble bases that correspond to a marble string course that runs around the entire structure
between the first story and basement.On either side of the pavilion are two large double-hung
windows with marble sills and lintels with a faux keystone pattern.Each window is framed by
louvered shutters.Above each window is an ornamental notched marble panel,while below are
fixed, six-light,wood windows with marble sills and splayed lintels.
The east and west facades of the Building each feature five large,double-hung sash windows with
marble sills and lintels. Ornamental notched marble panels appear above the three windows
closest to the front end of the Building on both the east and west.Below each of the five windows
are six-light basement windows with marble sills and splayed lintels.The west facade also
features a below-grade entrance to the basement level.The steps are granite and the supporting
walls are brick capped with granite and an iron balustrade.
On the south facade is a central Tuscan order four-columned portico,recalling the front entrance,
that serves as the garden entrance. Double half-glass,wooden doors lead from the interior
reading room to the wooden porch with a wooden balustrade and wooden steps that lead down to
a brick garden path. The exterior wall under the pediment has a stucco finish.This portico
structure is entirely wooden with lattice inserts for ventilation in the base. The wooden decking,
railing,and steps have each been replaced several times since 1907.
The Building's main hipped roof and both pavilion roofs are trimmed in a denticulated cornice
and clad in standing-seam copper. Eight unusual barrel-roof dormers pierce the roofline and are
finished in flat copper. The dormers each feature a double-hung sash window with Gothic
Revival tracery. A large central skylight is surrounded by a flat rubber roof that was originally tar
and paper. Two centrally placed brick chimneys protrude from the flat roof.
WHEREAS,due to their historical and architectural significance,the Building and the Property were
listed in the National Register of Historic Places as a contributing resource to the Chestnut Street Historic
District on August 28, 1973,are included in the McIntire Historic District established by the City of
Salem on March 3, 1981,and as a result of the foregoing are included in the State Register of Historic
Places;and
WHEREAS,Grantor and Grantee recognize the architectural,historic, and cultural values(hereinafter
"preservation values")and significance of the Building and have the common purpose of preserving the
aforesaid preservation values and significance of the exterior of the Building and the Property;and
WHEREAS,in 1998,the Salem Athenaeum received a Massachusetts Preservation Projects Fund
(MPPF)grant to assist in the full replacement of the original sheet copper roof and reconstruction of the
wooden and copper gutters surrounding the Building. The rubber roof was replaced in 2019. Another
MPPF grant-funded project was undertaken in 2016/2017 to restore the original wooden windows, a
wooden door,and install storm windows on the basement windows. These projects were instrumental in
maintaining climate control for the preservation of significant holdings of historical book collections as
well as interior custom finishes in the Building;and
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WHEREAS,the preservation values of the Building are documented in a series of photographs and
documents(hereinafter,'Baseline Documentation")incorporated herein and attached hereto as by
reference as Exhibit A,B and C,which Baseline Documentation the parties agree provides an accurate
representation of the Building as of the date of this grant;and
WHEREAS,the Baseline Documentation(Exhibits A,B and C)shall consist of the following:
Exhibit A.Legal Property Description
Exhibit B. Assessors' Parcel Map
Exhibit C.Four(4)Baseline Photographs Dated September,2019; and
WHEREAS,the Building is in need of preservation and restoration;and
WHEREAS,upon the recommendation of the Community Preservation Committee and approved as
Project by the City Council,the sum of Thirty-five Thousand,Two Hundred and Two Dollars($35,202)
from the Community Preservation Fund("Funds")was appropriated for the purpose of funding a grant for
the restoration of the windows of the Building; and
WHEREAS,the Grantor and the Grantee have reached an Agreement whereby the Grantee shall provide
the Funds so appropriated to the Grantor to be expended for the preservation and renovation of the
aforementioned Building,under the terms and conditions set forth herein and in such other documents as
the parties may execute,and the Grantor agrees to accept such Funds to be used exclusively for such
purposes and under such terms and conditions("Restriction"or"Preservation Restriction");
WHEREAS,the Grantor in further consideration of the receipt of such Funds and to ensure the
preservation of the aforementioned Building agrees and desires,to impose certain restrictions,obligations
and duties upon itself,its successors and assigns, so as to maintain,protect and preserve the architectural
and historical integrity of the Building;
WHEREAS,the preservation of the Building is important to the public for the enjoyment and
appreciation of its architectural and historical heritage and serves the public interest in a manner
consistent with the purposes of Massachusetts General Laws,Chapter 184, Sections 31,32 and 33
("Act");and
WHEREAS,the Commission is authorized to accept preservation restrictions in the name of the City of
Salem and the Commission is a governmental body duly organized under the laws of the Commonwealth
of Massachusetts,including the General Laws,Chapter 40C,authorized and directed by the Grantee to
manage the Property and Buildings burdened by such restrictions,consistent with the provisions of the
Act and to administer and enforce this preservation restriction;
NOW THEREFORE, for good and valuable consideration,the receipt of which is hereby acknowledged,
the Grantor does hereby irrevocably grant and convey to the Grantee in gross in perpetuity this Restriction
over the Property and exterior of the Building to be administered,managed and enforced by the
Commission.
1.Purpose: It is the Purpose of this Restriction to assure that,the architectural,historic,and cultural
features of the exterior of the Building will be retained and maintained forever substantially in its current
condition or in a restored condition approved by the Commission for preservation purposes and to prevent
any use or change of the Property or the exterior of the Building that will significantly impair or interfere
with the Building's preservation values or alter views of the exterior of the Building.
2.Preservation Restriction:The Grantor grants the Grantee the right to forbid or limit:
a. any alteration to the appearance,materials,workmanship,condition or structural stability of the
exterior of the Building unless(i)clearly of a minor nature and not affecting the characteristics
which contribute to the architectural or historical integrity of the Building and the Property, or(ii)
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the Grantee has previously determined that it will not impair such characteristics after reviewing
plans and specifications submitted by Grantor in accordance with the requirements of paragraph
7,which determination shall not be unreasonably withheld,or(iii)required by casualty or other
emergency promptly reported to Grantee in accordance with the requirements of paragraph 9.For
the purposes of this Agreement,interpretation of what constitutes alterations of a minor nature
and ordinary maintenance and repair is governed by the Restriction Guidelines,which are
attached hereto as Exhibit D and hereby incorporated by reference.
b. any other act or use that may be harmful to the historic preservation of the exterior of the
Building or the Property.
3. Restriction as to Expenditure of Funds: Subject to Paragraph 2 and the terms and conditions of this
Restriction and such other terms and conditions as the Commission may reasonably impose to accomplish
the purposes of this Restriction,the Grantor shall expend such Community Preservation Funds to
rehabilitate and restore the Building.
4.1.Grantor's Covenants:Covenant to Maintain. Subject to Paragraph 2 and the terms and conditions of
this Restriction and such other terms and conditions as the Commission may reasonably impose to
accomplish the purposes of this Restriction,the Grantor covenants and agrees at all times to maintain the
Building in the same structural condition and state of repair to that existing following the substantial
completion of restoration work to be completed as a result of the expenditure of Community Preservation
Funds.Grantor's obligation to maintain shall require replacement,repair,and reconstruction by Grantor
whenever necessary to preserve the exterior of the Building. Subject to the casualty provisions of
paragraphs 9 and 10,this obligation to maintain shall require replacement,rebuilding,repair,and
reconstruction of the Building whenever necessary in accordance with the policies and procedures of the
Commission and in accordance with The Secretary of the Interior's Standards for the Treatment of
Historic Properties with Guidelines for Preserving,Rehabilitating,Restoring,and Reconstructing Historic
Buildings(36 CFR 67 and 68),as these may be amended from time to time(hereinafter the"Secretary's
Standards").
4.2.Grantor's Covenants:Prohibited Activities.The following acts or uses are expressly forbidden except
as otherwise conditioned in this paragraph:
a. the Building shall not be demolished,removed,or razed except as provided in Paragraphs 9
and 10;
b. the dumping of ashes,trash,rubbish,or any other unsightly or offensive materials is
prohibited on the Property near the Building;
C. no above-ground utility transmission lines,except those reasonably necessary for the existing
Building,may be created on the Property, subject to utility easements already recorded;
d. no additions and/or outbuildings may be attached to the Building without prior approval of
the Grantor; and
e. moving the Building to another location shall be forbidden without prior approval of the
Commission.
5.Conditional Rights Requiring Grantee Approval: Subject to Paragraph 4 and the terms and conditions
of this Restriction and such other terms and conditions as the Commission may reasonably impose to
accomplish the purposes of this Restriction,the Grantor shall not alter the exterior of the Building without
prior express written approval of the Commission.Without said approval Grantor shall not make any
changes to the exterior of the Building,including the alteration,partial removal,construction,remodeling,
or other physical or structural change,including permanent signs,and any change in material or color or
any change to the footprint, size,mass,ridge-line,and rooflines of the Building.Grantor shall similarly
not make any alterations to the surrounding Property that would obscure the current view of the Building,
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such as the installation of permanent signage or trees or very large shrubs without approval of the
Commission.
Activities by Grantor to maintain the Building and the Property which are intended to be performed in
accordance with the provisions of paragraph 4.1,and which are of a minor nature,shall not require the
prior approval of the Commission.For the purposes of this section,interpretation of what constitutes
ordinary maintenance of a minor nature is governed by the Restriction Guidelines(Exhibit D),which are
attached to this Agreement and hereby incorporated by reference.
6. Grantor's Reserved Rights Not Requiring Further Approval by the Grantee: Subject to the provisions of
paragraphs 2 and 4.2,the following rights,uses,and activities of or by Grantor on,over,or under the
Property are permitted by this Restriction and by the Commission without further approval by the
Commission:
a. the right to engage in all those acts and uses that:
(i) are permitted by governmental statute or regulation;
(ii) do not substantially impair the preservation values of the Building and Property; and
(iii) are not inconsistent with the Purpose of this Restriction;
b. pursuant to the provisions of Paragraph 4.1,the right to maintain and repair the Building
strictly according to the Secretary's Standards.As used in this sub-paragraph,the right to
maintain and repair shall mean the use by the Grantor of in-kind materials and colors,applied
with workmanship comparable to that which was used in the construction or application of
those materials being repaired or maintained,for the purpose of retaining in good condition
the appearance and construction of the exterior of the Building.The right to maintain and
repair as used in this sub-paragraph shall not include the right to make changes in appearance,
materials,workmanship from that existing prior to the maintenance and repair without the
prior approval of the Commission in accordance with the provisions of Paragraph 5;
7.Review of Grantor's Requests for Approval: Grantor shall submit to the Commission for the
Commission's approval of those conditional rights set out at Paragraphs 2 and 5 two copies of information
(including plans,specifications,and designs where appropriate)identifying the proposed activity with
reasonable specificity. In connection therewith,Grantor shall also submit to the Commission a timetable
for the proposed activity sufficient to permit the Commission to monitor such activity.Within sixty(60)
days of the Commission's receipt of any plan or written request for approval hereunder,the Commission
shall certify in writing that(a)it approves the plan or request,or(b)it disapproves the plan or request as
submitted,in which case the Commission shall provide Grantor with written suggestions for modification
or a written explanation for the Commission's disapproval.Any failure by the Commission to act within
sixty(60)days of receipt of Grantor's submission or resubmission of plans or requests shall be deemed to
constitute approval by the Commission of the plan or request as submitted and to permit Grantor to
undertake the proposed activity in accordance with the plan or request submitted, so long as the request
sets forth the provisions of this section relating to deemed approval after the passage of time,provided
that nothing herein shall be construed to permit Grantor from undertaking any of the activities prohibited
hereunder.
8. Standards for Review: In exercising any authority created by this Restriction to inspect the Building;to
review any construction,alteration,repair,or maintenance;or to review casualty damage or to reconstruct
or approve reconstruction of the Building following casualty damage,the Commission shall apply the
Secretary's Standards.
9. Casualty Damage or Destruction:In the event that Building or Property shall be damaged or destroyed
by fire, flood,windstorm,hurricane,earth movement or other casualty,Grantor shall notify the
Commission in writing within fourteen(14)days of the damage or destruction,such notification including
what, if any,emergency work has already been completed.No repairs or reconstruction of any type,other
than temporary emergency work to prevent further damage to the Building and Property and to protect
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public safety, shall be undertaken by Grantor without the Commission's prior written approval of the
work.Within sixty(60)days of the date of damage or destruction, if required by the Commission,
Grantor at its expense shall submit to the Commission a written report prepared by a qualified restoration
architect and an engineer who are acceptable to the Grantor and the Commission,which report shall
include the following:
a. an assessment of the nature and extent of the damage;
b. a determination of the feasibility of the restoration of the Building and/or reconstruction
of damaged or destroyed portions of the Building;and
C. a report of such restoration/reconstruction work necessary to return the Building to the
condition existing at the date hereof or the condition subsequently approved by the
Commission.
10.Review After Casualty Damage or Destruction:If,after reviewing the report provided in Paragraph 9
and assessing the availability of insurance proceeds after satisfaction of any mortgagee's/lender's claims
under paragraph 11,Grantor and the Commission agree that the Purpose of the Restriction will be served
by such restoration/reconstruction,Grantor and the Commission shall establish a schedule under which
Grantor shall complete the restoration/reconstruction of the Building in accordance with plans and
specifications consented to by the parties up to at least the total of the casualty insurance proceeds
available to Grantor.
If, after reviewing the report and assessing the availability of insurance proceeds after satisfaction of any
mortgagee's/lender's claims under paragraph 11, Grantor and the Commission agree that
restoration/reconstruction of the Building is impractical or impossible,or agree that the Purpose of the
Restriction would not be served by such restoration/reconstruction and Grantor may,with prior written
consent of the Commission,alter,demolish,remove or raze the Building,and/or construct new
improvements on the Property,Grantor and Grantee may agree to seek to extinguish this Restriction in
accordance with the laws of the Commonwealth of Massachusetts and paragraph 23 hereof.
If,after reviewing the report and assessing the availability of insurance proceeds after satisfaction of any
mortgagee's/lender's claims under paragraph 11, Grantor and the Commission are unable to agree that the
Purpose of the Restriction will or will not be served by such restoration/reconstruction,the matter may be
referred by either party to binding arbitration and settled in accordance with the Commonwealth of
Massachusetts arbitration statute then in effect,and all other applicable laws,rules,regulations,and
ordinances.Arbiter shall have experience in historic preservation matters.
11.Insurance: Grantor shall keep the Building insured by an insurance company rated"A"or better by
Best's or equivalent rating agency for the full replacement value against loss from the perils commonly
insured under standard fire and extended coverage policies and comprehensive general liability insurance
against claims for personal injury,death and property damage.Property damage insurance shall include
change in condition and building ordinance coverage,in form and amount sufficient to replace fully the
damaged Building without cost or expense to Grantor or contribution or coinsurance from Grantor.
Grantor shall deliver to the Commission,within ten(10)business days of the Commission's written
request thereof,certificates of such insurance coverage.Provided,however,that whenever the Property is
encumbered with a mortgage or deed of trust nothing contained in this paragraph shall jeopardize the
prior claim,if any,of the mortgagee/lender to the insurance proceeds.
12.Indemnification: Grantor hereby agrees to pay,protect,indemnify,hold harmless and defend,at its
own cost and expense,Grantee,its boards,commissions,appointees,agents,directors,employees,or
independent contractors from and against any and all claims, liabilities,expenses,costs, damages, losses
and expenditures(including attorneys'fees and disbursements hereafter incurred)arising out of or in
connection with injury to or death of any person as a result of the existence of this Restriction;physical
damage to the Building; the presence or release in, on,or about the Property,at any time,of any
substance now or hereafter defined,listed,or otherwise classified pursuant to any law,ordinance or
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regulation as a hazardous,toxic,polluting or contaminating substance; or other injury or other damage
occurring on or about the Building;unless such injury,death,or damage is caused by Grantee or its
boards,commissions,appointees,agents,directors,employees,or independent contractors. In the event
that Grantor is required to indemnify Grantee pursuant to the terms of this paragraph,the amount of such
indemnity,until discharged, shall constitute a lien on the Property with the same effect and priority as a
mechanic's lien.
13.Written Notice: Any notice which either Grantor or Grantee may desire or be required to give to the
other party shall be in writing;
Grantor: The Proprietors of the Salem Athenaeum
d/b/a The Salem Athenaeum
337 Essex Street
Salem,MA 01970
Grantee: Salem Historical Commission
c/o City of Salem
Department of Planning&Community Development
98 Washington Street
Salem,MA 01970
Each party may change its address set forth herein by a notice to such effect to the other party.
14.Evidence of Compliance:Upon request by Grantor, Grantee shall promptly furnish Grantor with
certification that,to the best of Grantee's knowledge,Grantor is in compliance with the obligations of
Grantor contained herein,or that otherwise evidence the status of this Restriction to the extent of
Grantee's knowledge thereof.
15.Inspection: With the consent of Grantor, Grantee or its representatives shall be permitted at reasonable
times to inspect the Building and the Property on an annual basis.Grantor covenants not to withhold
unreasonably its consent in determining dates and times for such inspections.
16. Grantee's Remedies:The Grantor,for itself,its assigns and successors, expressly acknowledges that a
violation of this Preservation Restriction Agreement,including a failure to expend such Funds for their
intended purposes,may result in the Commission exercising its right to enforce the terms and conditions
of the Restriction by seeking appropriate legal and equitable relief, including,but not limited to,
restoration of the Building,repayment of the Funds,and such other legal and equitable remedies as may
be available to the Commission to effectuate the purposes of this Restriction and to enforce the Grantor's
obligations hereunder.
In the event Grantor is found to have violated any of its obligations,Grantor shall reimburse Grantee for
any costs or expenses incurred in connection with Grantee's enforcement of the terms of this Restriction,
including all court costs,and attorneys', architectural,engineering,and expert-witness fees.Grantor shall,
at its own expense and with approval of Commission,reverse any actions or activities which violated this
restriction and altered the Building.
Nothing in this Restriction shall impose upon the Commission any duty to maintain or require that the
Building be maintained in any particular state or condition,notwithstanding the Commission's acceptance
hereof. Enforcement of the terms of this Preservation Restriction shall be at the discretion of the
Commission.Any election by the Commission as to the manner and timing of the exercising of its right to
enforce this Preservation Restriction or otherwise exercise its rights hereunder shall not be deemed or
construed to be a waiver of such rights.By its acceptance of this Preservation Restriction,the
Commission does not assume any liability or obligation relating to the condition of the Building or the
Property, including compliance with hazardous materials or other environmental laws and regulations.
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17.Notice from Government Authorities: Grantor shall deliver to Grantee copies of any notice of
violation or lien relating to the Building or Property received by Grantor from any government authority
within five(5)days of receipt by Grantor.Upon request by Grantee,Grantor shall promptly furnish
Grantee with evidence of Grantor's compliance with such notice or lien where compliance is required by
law.
18.Notice of Proposed Sale: Grantor shall promptly notify Grantee in writing of any proposed sale of the
Property and provide the opportunity for Grantee to explain the terms of the Restriction to potential new
Grantors prior to sale closing.
19.Runs with the Land: Except as provided in Paragraphs 9 and 10,the restrictions,obligations and
duties set forth in this Restriction shall run with the Property and shall inure to the benefit of the
Commission and all parties claiming by,through or under the Commission and shall bind the Grantor and
all parties claiming by,through or under the Grantor.The rights hereby granted to the Commission
constitute the perpetual right of the Commission to enforce this Preservation Restriction Agreement.The
Grantor hereby covenants for itself to stand seized and hold title to the Property subject to the terms of
this Restriction.This Restriction shall extend to and be binding upon Grantor and Grantee,their
respective successors in interest and all persons hereafter claiming under or through Grantor and Grantee,
and the words "Grantor", "Grantee"when used herein shall include all such persons.Any right,title,or
interest herein granted to Grantee also shall be deemed granted to each successor and assign of Grantee
and each such following successor and assign thereof,and the word"Grantee" shall include all such
successors and assigns.
Anything contained herein to the contrary notwithstanding,Grantor of the Property shall have no
obligation pursuant to this instrument where such Grantor shall cease to have any Grantorship interest in
the Property by reason of a bona fide transfer.The restrictions, stipulations and covenants contained in
this Restriction shall be inserted by Grantor,verbatim or by express reference,in any subsequent deed or
other legal instrument by which Grantor divests itself of either the fee simple title to or any lesser estate in
the Property or any part thereof,including by way of example and not limitation,a lease of all or a portion
of the Property.
20.Assignment: Grantee may convey,assign,or transfer this Restriction to a unit of federal,state,or local
government or to a similar local,state, or national charitable corporation or trust that qualifies under the
Act,and whose purposes,inter alia,include the preservation of buildings or sites of historical
significance,provided that any such conveyance,assignment or transfer requires that the Purpose for
which the Restriction was granted will continue to be carried out.Grantor shall give prior written
approval of such conveyance,assignment,or transfer by Grantee, such approval not to be unreasonably
withheld.
21.Alternate Designee: Grantee may,at its discretion,remove and replace the Commission as its
designee to administer,manage,and enforce this Restriction,provided that any new designee is qualified
as such under the Act and other applicable law.
22.Recordinu and Effective Date: Grantee shall do and perform at its own cost all acts necessary to the
prompt recording of this Restriction which shall become effective upon its being duly executed by the
Grantor,the City of Salem,and the Salem Historical Commission,its being approved by the
Massachusetts Historical Commission,and its being recorded with the Southern Essex District Registry
of Deeds.
23.Extinguishment:Grantor and Grantee hereby recognize that an unexpected change in the conditions
surrounding the Property may make impossible the continued Grantorship or use of the Property for the
Purpose of this Restriction and necessitate extinguishment of the Restriction. Such a change in conditions
may include,but is not limited to,partial or total destruction of the Building resulting from casualty. Such
an extinguishment must meet all the requirements of the Act for extinguishment,including approvals
following public hearings by the City of Salem and the Massachusetts Historical Commission to
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determine that such extinguishment is in the public interest.In the event of a sale of the Property,net
proceeds of sale shall be paid to Grantor.
24.Condemnation: If all or any part of the Property is taken under the power of eminent domain by
public,corporate,or other authority,or otherwise acquired by such authority through a purchase in lieu of
a taking,Grantor and Grantee shall join in appropriate proceedings at the time of such taking to recover
the full value of those interests in the Property that are subject to the taking and all incidental and direct
damages resulting from the taking.All expenses reasonably incurred by Grantor and Grantee in
connection with such taking shall be paid out of the recovered proceeds. Such recovered proceeds shall be
paid to Grantor.
25.Interpretation:The following provisions shall govern the effectiveness,interpretation,and duration of
the Restriction:
a. Any rule of strict construction designed to limit the breadth of restrictions on alienation or use of
the Property shall not apply in the construction or interpretation of this Restriction and this
instrument shall be interpreted broadly to affect its Purpose and the transfer of rights and the
restrictions on use contained herein.
b. This instrument may be executed in two counterparts,one of which is to be retained by Grantor
and the other, after recording,to be retained by Grantee.In the event of any disparity between the
counterparts produced,the recorded counterpart shall in all cases govern. Except as provided in
the preceding sentence,each counterpart shall constitute the entire Restriction of the parties.
c. This instrument is made pursuant to the Act,but the invalidity of such Act or any part thereof
shall not affect the validity and enforceability of this Restriction according to its terms,it being
the intent of the parties to agree and to bind themselves,their successors and their assigns in
perpetuity to each term of this instrument whether this instrument be enforceable by reason of any
statute,common law or private Restriction either in existence now or at any time subsequent
hereto.
d. Nothing contained herein shall be interpreted to authorize or permit Grantor to violate any
ordinance or regulation relating to building materials,construction methods or use.In the event of
any conflict between any such ordinance or regulation and the terms hereof Grantor promptly
shall notify Grantee of such conflict and shall cooperate with Grantee and the applicable
governmental entity to accommodate the purposes of both this Restriction and such ordinance or
regulation.
If any court or other tribunal determines that any provision of this instrument is invalid or unenforceable,
such provision shall be deemed to have been incorporated herein automatically to conform to the
requirements for validity and enforceability as determined by such court or tribunal.In the event any
provision invalidated is of such a nature that it cannot be modified,the provision shall be deemed deleted
from this Preservation Restriction as though it had never been included herein.In either case,the
remaining provisions of this instrument shall remain in full force and effect.
26.Amendment: If circumstances arise under which an amendment to or modification of this Restriction
would be appropriate, Grantor and Grantee may by mutual written agreement jointly amend this
Restriction,provided that no amendment shall be made that will adversely affect the qualification of this
Restriction or the status of Grantee under any applicable law.Any such amendment shall be consistent
with the protection of the preservation values of the Property and the Purpose of this Restriction; shall not
affect its perpetual duration; shall not permit any private inurement to any person or entity;and shall not
adversely impact the overall architectural and historic values protected by this Restriction.Any such
amendment shall be effective when the requirements of the Act with respect to amendments have been
met and the amendment is recorded in the Southern Essex District Registry of Deeds.Nothing in this
paragraph shall require Grantor or Grantee to agree to any amendment or to consult or negotiate regarding
any amendment.
9
27.Release:This Preservation Restriction is intended to be a restriction in gross in perpetuity and may
only be released,in whole or in part,by the Grantee pursuant to the procedures for release established by
the Act and otherwise by law,including approvals following public hearings by the City of Salem and the
Massachusetts Historical Commission to determine that such a release is in the public interest.
28.Archaeological Activities:The conduct of archaeological activities on the Property,including without
limitation survey,excavation,and artifact retrieval,may occur only following the submission pf an
archaeological field investigation plan prepared by the Grantor and approved in writing by the Grantee
and the State Archaeologist of the Massachusetts Historical Commission(M.G.L.C.9, Sec. 27C,950
C.M.R.70.00).
29. Subordination: Grantor and Grantee acknowledge that as of the date of this Agreement,the Property
and the Building are subject to a perpetual Preservation Restriction Agreement held on the Property and
the Building by the Commonwealth of Massachusetts by and through the Massachusetts Historical
Commission and recorded with the Essex South Registry of Deeds on July 9, 1998 in Book 14942,Page
546 (hereinafter the"MHC Agreement"). Grantor agrees that in addition to complying with the
restrictions contained in this Agreement,Grantor will continue to comply with the restrictions contained
in the MHC Agreement. Grantor and Grantee agree that this Agreement shall be subservient to the MHC
Agreement,and further agree that should any dispute arise between Grantee and the Massachusetts
Historical Commission in the process of fulfilling the requirements of these restrictions,the Grantee shall
defer to the demands and requirements set out by the Massachusetts Historical Commission.
10
IN WITNESS WHEREOF,the Grantor sets its hand and seal this>—day of - ,2020.
By:
GRANTOR:
The Proprietors of the Salem Athenaeum
Stanley Usovicz
President
W' 'am Lures
reasurer
COMMONWEALTH OF MASSACHUSETTS
Essex,ss.
On this 3� day of 2020,before me,the undersigned notary public,personally appeared
Stanley Usovicz,proved to th-ough satisfactory evidence of identification,which was a current driver's
license a current U.S.passpo iy personal knowledge of the identity of the principal),to be the person whose
name is signed 9 the preceding or attach docu nt,and acknowledged to me that s/he signed it voluntarily for
its stated purpo s.
otary Public Send►a Maotiregor O'Bfien
Notary Publk
My Commission Expires: 1 Of
My COmmhskn Eqwm
.Nine 7, 2024
Essex,ss.
g
On this day2, roved
2020,before me,the undersigned notary public,personally appeared
William Lundreg to me through satisfactory evidence of identification,which was(a current driver's
license -Pri— to be the person whose
name is signed on the preceding or attached document,and acknowledged to me that s/he signed it voluntarily for
its stated purposes.
g
Nota ublic �••N••••""""+ny,
.,
'M ommissionExpires: Il�12oZZ ,��.• $. q ,��►,g�
UA ell.
•,, ,yam t T H..Qf ,tea
N JoA/1 s1M 1t•t►
11
ACCEPTANCE BY THE SALEM HISTORICAL COMMISSION
L ence Spang,du y autho .
Chair,Salem Historical Commis
COMMONWEALTH OF MASSACHUSETTS
Essex,ss.
On this 14 .i day of March,2021 before me,the undersigned notary public,personally appeared
Lawrence Spang,proved to me through satisfactarL evidence didentification,which was(a current
driver's license)(a current U.S.passport my personal knowledge of the identity of the princlpa ,to be
the person whose name is signed on the precec mg or attached ocument,and acknow edged tome that
s/he signed it voluntarily for its stated purposes as duly authorized Chair of the Salem Historical
Commission.
Notary Public
My Commission it
THELMA NA0,MI FRANCISM
Notary Nb1ie
COMMONWEALTH OF MAS&CIIggE'�"�S
My Commission Expires
June 18,
2. Q21.
12
ACCEPTANCE AND APPROVAL BY THE CITY OF SALEM
I,the undersigned City Clerk of the City of Salem,Massachusetts,hereby certify that at a meeting duly
held on March 11,2021,the City Council voted to approve and accept the foregoing Preservation
Restriction Agreement for the preservation of the historic resources of said City and being in the public
interest pursuant to Massachusetts General Laws Chapter 184, Section 32.
By its Clerk
4e(ne Simons
City Clerk
The undersigned hereby certifies that the foregoing preservation restrictions have been approved and
accepted by the City of Salem
R/,�' )��-
Kimberley 11
Mayor
COMMONWEALTH OF MASSACHUSETTS
Essex, ss.
On this Qlday of Ma rGh ,2021, before me,the undersigned notary public,personally
appeared Ilene Simons, proved to me through satisfactory evidence of identification,which my personal
knowledge of the identity of the principal,to be the person whose name is signed on the preceding or
attached document,and acknowledged to me that s/he signed it voluntarily for its stated purposes as Clerk
of the City of Salem.
My Commission Expire Maureqn,Elizabeth Fisher
UIV
NotBYy Public
COMMONWENTH OF MASSACHUSETTS
COMMONWEALTH OF MASSACHUSETTS My Commission Expires
Essex, ss. July 15,2027
On this I day of. W 2021, before me,the undersigned notary public,personally
appeared,Kimberley Driscoll,proved to me through satisfactory evidence of identification,which was
my personal knowledge of the identity of the principal,to be the person whose name is signed on the
preceding or attached document,and acknowledged to me that she signed it voluntarily for its stated
purposes as Mayor of the City of Salem.
Notary Public
My Commission Expires: ( f�o(� Z
S JENNIFE: i WESSELL
A Notary Public
COMMONWEALTH OF MASSACHUSEITS
My Commission Expires
13 June 3, 2022
APPROVAL BY THE MASSACHUSETTS HISTORICAL COMMISSION
COMMONWEALTH OF MASSACHUSETTS
The undersigned Executive Director and Clerk of the Massachusetts Historical Commission hereby
certifies that foregoing preservation restriction has been approved pursuant to Massachusetts General
Law,chapter 184,section 32.
MASSACHUSETTS HISTORICAL COMMISSION
Brona Simon
Executive Director and Clerk
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
'41-
On this� day of49"W-6 ,2021,before me,the undersigned notary public,personally
appeared Brona Sinn roved to me through satisfactory evidence of identification,which was(a current
driver's license)(a current U.S.passport)(my personal knowledge of the identity of the principal),to be
the person whose name is signed on the preceding or attached document,and acknowledged to me that
she signed it voluntarily for its stated purposes.
SX NANCY MAIDA
c,p Notary Public
a'fCOMMONWEALTH OF MASSACHUSETTS
l My Commission Expires Notary Public
January 16. 2026 My Commission Expires:
14
EXHIBIT A
Legal Property Description
Book 1821 p 371-373
Mass.New Church Union to Props.of Salem Athenaeum
...Beginning at the Northeast corner by land now or formerly of Curwin on Essex Street and running
South bounded Easterly on said land now or formerly of Curwin one hundred twenty-four(124)feet four
(4)inches to land now or late of Betsey B.Mugford.Then turning and running West bounded Southerly
by other land now or formerly of said[372]Mugford sixty six(66)feet to Bott's Court so called thence
running Northerly on said Court twenty two(22)feet ten(10)inches to land now or late of Daniel Potter
thence turning and running Easterly on said land now or late of Potter seventeen(17)feet six(6)inches,
thence turning and running Northerly on said land now or late of Potter to an angle in the fence thirty one
(31)feet thence turning and running North Westerly on said angle on a crooked line as the fence stood at
the line of said Deed twenty one(21)feet three(3)inches to the South east corner of the dwelling house
now or late of said Potter,thence running Northerly by said dwelling house fifty one(51)feet three(3)
inches to said Essex Street,thence running Easterly on said Essex Street about fifty nine(59)feet six(6)
inches to the bound begun at.Being the same premises conveyed to the said The Massachusetts New
Church Union by deed dated June 8, 1905,and recorded with Essex South District Deeds,Book 1782
page 444 and subject to any restrictions therein referred to if still in force. ...
Book 1826 p 330
C. S.Rea et al.trts. [trustees]to Salem Athenaeum
...hereby grant,bargain, sell, and convey unto the said corporation all the interest of said Mary S. Curwen
in the following described real estate,namely,a certain parcel of land with all buildings thereon in said
Salem,bounded beginning on Essex Street at land,formerly of Thomas Holmes,now of Cousins,and
running southwesterly by by [sic] Cousin's [sic] land one hundred and fifty seven feet,thence running
easterly by the same land eleven feet nine inches,thence running southwesterly by land of West fourteen
feet two inches,thence running westerly by land of Lee sixty seven feet one inch,thence running
northerly by land of Mugford heirs,now or late,and land of the grantee,one hundred and sixty two feet
two inches,thence running easterly by Essex Street fifty three feet eleven inches to the point begun at.To
have and to hold the granted premises with all the privileges and appurtenances thereto belonging to the
said Proprietors of the Salem Athenaeum and its successors...
Book 1826 p 331
E.W. Curwen Gdn.to Salem Athenaeum
...do hereby grant,bargain, sell,and convey unto the said corporation all the interest of said minor in the
following described real estate, said interest being five undivided forty eighth parts thereof,namely,a
certain parcel of land with all the buildings thereon in said Salem,bounded,beginning on Essex Street at
land,formerly of Thomas Holmes,now of Cousins,and running southwesterly by Cousin's [sic] land one
hundred and fifty seven feet,thence running easterly by the same land eleven feet nine inches,thence
running southwesterly by land of West fourteen feet two inches,thence running westerly by land of Lee
sixty seven feet one inch,thence running northerly by land of Mugford heirs,now or late,and land of the
grantee,one hundredand sixty two feet and two inches,thence running easterly by Essex Street fifty three
feet eleven inches to the point begun at.
Book 1826 p 332
C.F.Curwen at al.to Salem Athenaeum
...do hereby give,grant,bargain, sell and convey unto the said Proprietors of the Salem Athenaeum a
certain parcel of land with all the buildings thereon in said Salem bounded beginning at a point on Essex
Street by land formerly of Holmes,now or late of Cousins,thence running southwesterly by said Cousin's
[sic] land one hundred and fifty seven feet,thence running easterly by the same land eleven feet nine
inches,thence running southwesterly by land formerly of Holmes,now of West,fourteen feet two inches,
15
thence running westerly by land of Lee sixty seven feet one inch,thence running northerly by land
formerly of Botts,now or late of Brown,and land of the grantee one hundred and sixty two feet two
inches,thence running easterly by Essex Street fifty three feet eleven inches to the point begun at;being
the same conveyed to Jonathan Holman by deed of John Holman dated Jan. 18, 1833,recorded with
Essex So.Dist.Deeds B.276 L.255,said Jonathan Holman devised the same in trust for Mary S.Curwen
by his will allowed in Essex Probate Court 1 st Tuesday of October 1855...
Source: Southern Essex District Registry of Deeds(transcribed from deeds).
16
EXHIBIT B
Salem Assessors' Parcel Map 26-0487
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4348 3" 3" 342 3 - � 26 48 26-[�d7
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17
EXHIBIT C
Baseline Photographs
A A
WAf
Photo 1 —Front facade(North elevation)
18
a' y i►
'�-s,1r• y '-
a �,
r! s.
Y'
Photo •
20
EXHIBIT D
RESTRICTION GUIDELINES
The purpose of the Restriction Guidelines is to clarify paragraph three of the terms of the preservation
restriction, which deals with alterations to the Property. Under this section permission from the SALEM
HISTORICAL COMMISSION(COMMISSION)is required for any major alteration.Alterations of a minor
nature,which are part of ordinary maintenance and repair,do not require COMMISSION review.
In an effort to explain what constitutes a minor alteration and what constitutes a major change,which must be
reviewed by the COMMISSION, the following list has been developed. By no means is this list
comprehensive: it is only a sampling of some of the more common alterations,which may be contemplated
by the property owner.
PAINT
Minor-Exterior hand scraping and repainting of non-decorative and non-significant surfaces as part
of periodic maintenance.
Major - Painting or fully stripping decorative surfaces or distinctive stylistic features including
murals, stenciling,ornamental woodwork,stone,masonry,decorative or significant original stucco
or plaster.
WINDOWS AND DOORS
Minor - Regular maintenance including caulking, painting and necessary reglazing. Repair or
in-kind replacement of existing individual decayed window parts.
Major-Wholesale replacement of units;change in fenestration or materials;alteration of profile or
setback of windows.The addition of storm windows is also considered a major change; however,
with notification it is commonly acceptable.
EXTERIOR
Minor- Spot repair of existing cladding and roofing including in-kind replacement of clapboards,
shingles,slates,etc.
Major-Large-scale repair or replacement of cladding or roofing.Change involving inappropriate
removal or addition of materials or building elements(i.e.removal of chimneys or cornice detailing;
installation of architectural detail which does not have a historical basis); altering or demolishing
building additions; spot repointing of masonry. Structural stabilization of the property is also
considered a major alteration.
LANDSCAPE/OUTBUILDINGS
Minor - Routine maintenance of outbuildings and landscape including lawn mowing, pruning,
planting,painting,and repair.
Ma'
or - Moving or subdividing buildings or property; altering of property; altering or removing
significant landscape features such as gardens, vistas, walks, plantings, walls, fences; ground
disturbance affecting archaeological resources.
HEATING/AIR CONDITIONING/ELECTRICAL/PLUMBING SYSTEMS
Minor-Repair of existing systems.
Maior-Installing or upgrading systems which will result in major exterior appearance changes(i.e.
exterior ducts, piping, ventilators, fWAC units); the removal of substantial quantities of original
materials in the course of construction.
21
Changes classified as major alterations are not necessarily unacceptable. Under the preservation restriction
such changes must be reviewed by the COMMISSION and their impact on the historic integrity of the property
assessed.
It is the responsibility of the property owner to notify the COMMISSION in writing when any major
alterations are contemplated. Substantial alterations may necessitate review of plans and specifications.
The intent of the preservation restriction is to enable the COMMISSION to review proposed alterations and
assess their impact on the integrity of the building,not to preclude future change.COMMISSION will attempt
to work with property owner to develop mutually satisfactory solutions,which are in the best interests of the
Property_
22