Declaration of Trust — Essex Crossing at Montserrat HOA
| Date | 2015-12-09 |
| Category | Founding Instruments |
| Status | Public record — recorded or publicly filed |
| Recording | Bk 34576 Pg 486 |
| Verify at source | Southern Essex District Registry of Deeds — search Bk 34576 Pg 486 |
| Pages | 24 |
| Size | 390 KB |
Extracted text (searchable)
ESSEX CROSSING AT MONTSERRAT HOMEOWNERS ASSOCIATION
TRUST
Table of Contents
SO. ESSEX #118 Bk:34576 Pg:486
12/09/2015 09:57 TRUST Pg 1/16
Article
III.
VI.
I. Name of Trust II. Definitions
The Trust and Its Purpose The Trustees Beneficiaries and the Beneficial Interest in
the Trust By-Laws Section 1. Powers and Duties of Trustees Section 2. Common
Expenses, Profits and Funds Section 3. Insurance Section 4. Meetings Section 5.
Notices to Unit Owners Section 6. Inspection of Books; Reports to Unit Owners Section
7. Checks, Notes, Drafts and Other Instruments Section 8. Seal Section 9. Fiscal
Year Rights and Obligations of Third Parties; Dealing with the Trustees; Limitation of
Liability VIII. Amendments and Termination IX Sale of Lots X. Construction and
Interpretation XI. Planning Board Approval KII. Conservation Commission
Brian D. McGrail, Esq.
599 North Avenue Suite 7 Second Floor Wakefield, MA 01880
Declaration of Trust
This Declaration of Trust is made this ___ day of December, 2015, by
DUC Residential LLC, a Massachusetts Limited Liability Company
(hereinafter referred to as the “DEVELOPER”)
WITNESSETH:
ARTICLE I Name of Trust
The Trust hereby created shall be known as "Essex Crossing at Montserrat
Homeowners Association Trust", and under that name, so far as legal, covenant and
practicable, shall all business carried on by the Trustees named herein (and
their successors) be conducted and all instruments in writing by the said
Trustees be executed. The Trust is sometimes referred to as the Homeowners
Association or Association.
ARTICLE II Definitions
The following words and terms, when used in this Declaration shall have the
following meanings:
a. Developer shall mean and refer to DUC Residential LLC, together with its
successors, legal representatives, grantees, and assigns. b. Plan shall mean and
refer to “OSRD Site & Definitive Subdivision Plan entitled
Essex Crossing Beverly Massachusetts", prepared by Hayes Engineering, Inc.
recorded as Plan No. 73 in Plan Book 446 at Essex South Registry of Deeds. C.
Covenants shall mean and refer to the covenants, restrictions, easements,
affirmative obligations, charges, and liens created and imposed by the
Declaration. d. Declaration shall mean and refer to DECLARATION OF
COVENANTS,
EASEMENTS, AGREEMENTS & MANAGEMENT PLAN RELATING TO OPEN
SPACE AND HOMEOWNERS ASSOCIATION AND OTHER AMENITIES FOR ESSEX
CROSSING AT MONTSERRAT, BEVERLY, MASSACHUSETTS recorded herewith
together with any supplements or
amendments thereto. e. Property or Subdivision shall mean and refer to all of the land
and improvements
included on shown on a certain Definitive Plan entitled, “OSRD Site & Definitive
Subdivision Essex Crossing, Beverly, Massachusetts”, prepared by Hayes
Engineering, Inc. recorded as Plan No. 73 in Plan Book 446 at Essex South Registry of
Deeds (hereinafter referred to as the “Plan”) or any supplements or amendments
thereto. It shall not include Open Space Parcel A or Open Space Parcel B
shown on the Plan, which are being conveyed to the City.
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i.
f. Lot shall mean and refer to the plots of land numbered 1 through 16, as shown on
the Plan as the same may be amended and/or modified by the Beverly Planning
Board. Open Space shall mean and refer to the 5.04 Acres of designated Open Space
C as shown on the Plan and required by Conditions 2 & 4 of the Planning Board
Approval as the same may be amended and/or modified by the Beverly Planning
Board. h. Planning Board Approval shall mean the OSRD Site Plan Decision issued by
the
Beverly Planning Board dated November 25, 2014 and recorded at Essex South
Registry of Deeds at Book 33792, Page 502. It shall also mean any requirements
of the City of Beverly Open Space Residential Design Site Plan Ordinance. Trust or
Association shall mean and refer to this Essex Crossing Monserrat Homeowners
Association Trust whose beneficial ownership shall be equally divided amongst the
Owners of Lots and beneficial ownership is both automatic
and mandatory. j. Owner or Owners shall mean and refer to the record owner,
whether one or more
persons, or entities, of any Lot within the Subdivision. k. Storm Water Management System
shall mean and refer to the detention areas and
drainage infrastructure serving the Property. 1. Beneficiary shall mean and refer to
owners of beneficial interests, of this Trust or
Association. m. Regulations shall mean and refer to any rules or regulations respecting
the use of
the Property that have been adopted by the Association from time to time. n.
Trustees shall mean and refer to the Trustees of the Association. 0. By-Laws shall mean
and refer to the Bylaws of the Association, as the same may
be amended from time to time.
ARTICLE III The Trust and Its Purpose
Section 1. To take ownership of all assets of the Trust, including $10.00, which has been
paid by the Developer to the Trust, Open Space Parcel C as shown on the Plan as the
same may be amended or added to and to manage and maintain the same and to
assure compliance with all terms and conditions of the Planning Board Approval
and Declaration. Also, to maintain roadways (including Pond View Lane and the 20'
Wide Access & Utility Easement as shown on the Plan), walls and stormwater
management systems in the Subdivision. All of the rights and powers in and with
respect to the Open Space (hereinafter called the "Common Elements") of
the Association, and all property, real and personal, tangible and intangible,
conveyed to the Trustees hereunder shall vest in the Trustees as joint tenants, with
right of survivorship, as Trustees of this Trust, in trust to exercise, manage,
administer and dispose of the same and to receive the income thereof for the benefit of the
Owners of record from time to time of Lots within the Subdivision according to the
schedule of beneficial interest set forth in Exhibit A attached hereto and
incorporated herein by reference.
Section 2. It is hereby expressly declared that a trust and not a partnership has been
created and that the Owners are beneficiaries and not partners or associates or any
other relation whatever among themselves with respect to the trust property, and hold
no relation to the trust with only such rights as are conferred upon them as such
beneficiaries hereunder.
ARTICLE IV The Trustees
Section 1. The initial trustee of this Trust shall be DUC Residential LLC
("Developer"), who shall serve until Developer no longer owns any of the Lots in the
Subdivision or until Developer notifies all Owners in writing he no longer desires to
serve. Thereafter, the Owners of each Lot shall elect five (5) Trustees by a
majority vote. Each Lot in the Subdivision, whether owned by one person or more
than one person, shall have one vote in voting for and participating in the activities of
the Association, and shall have equal obligations with respect thereto. The vote for
such Lot shall be exercised as they among themselves determine; but in no
event shall more than one vote be cast with respect to any Lot. There shall be no
split vote. Prior to the time of any meeting at which a vote is to be taken, each
co-owner shall file the name of the voting co-owner with the Association in order to be
entitled to vote at such meeting.
The term of elected Trustees shall be for a period of 2 years from the date of their election. New
Trustees shall be elected at the annual meeting of the Owners (Article VI, Section 4)
preceding the expiration of their term in office.
In the event there is a vacancy in the office of a Trustee, it shall be filled by an instrument
in writing setting forth the appointment of a natural person to a Trustee, signed by the 50%
Lot Owners. Such appointment shall become effective upon the recording with the
Essex South Registry of Deeds of a certificate of such appointment, signed and
accepted as aforesaid, and such person shall then be and become such Trustee and
shall be vested with the title to the trust property, jointly with the remaining or
surviving Trustee, without the necessity of any act of transfer or
conveyance. If for any reason any vacancy in the office of Trustee shall continue for
more than sixty (60) days and shall at the end of that time remain unfilled, a Trustee or
Trustees to fill such vacancy or vacancies may be appointed by any court of competent
jurisdiction upon the application of any Owner and notice to all Owners and
Trustees and to such other parties in interest, if any, to whom the court may direct that
notice be given.
The foregoing provisions of this Section to the contrary notwithstanding, despite any
vacancy in the office of Trustee, however caused and for whatever duration, the
remaining of surviving Trustees, subject to the provisions of the immediately
following Section, shall continue to exercise and discharge all of the powers,
discretions and duties hereby conferred or imposed upon the Trustees.
Section 2. In any matters relating to the administration of the Trust hereunder and
the exercise of the powers hereby conferred, the Trustees may act by majority vote at
any duly called meeting at which a quorum is present as provided in Section 4 of Article
VI.
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The Trustees may also act without a meeting by instrument signed by all of their
number.
Section 3. Any Trustee may resign at any time by instrument in writing,
signed and acknowledged in the manner required in Massachusetts for the
acknowledgment of deeds, and such resignation shall take effect upon the recording of such
instrument with said Registry of Deeds.
Section 4. No Trustee named or appointed as hereinbefore provided, whether as
original Trustee or as successor to or as substitute for another, shall be obligated to
give any bond or surety or other security for the performance of any of his
duties hereunder
Section 5. No Trustee hereinbefore named or appointed as hereinbefore provided shall
under any circumstances or in any event be held liable or accountable out of his
personal assets or be deprived of compensation by reason of any action taken,
suffered or omitted in good faith or be so liable or accountable for more money or
other property than he actually receives, or for allowing one or more of the ot have
possession of the Trust books or property, or be so liable, accountable or
deprived by reason of honest errors of judgment or mistakes of fact or law or by
reason of the existence of any personal interest or gain or by reason of anything except
his own personal and willful malfeasance and default.
Section 6. No Trustee shall be disqualified by his office from contracting or dealing with
the Trustees or with one or more Owners (whether directly or indirectly because of his
interest individually or the Trustees' interest or any Owner's interest in any
corporation, firm, trust or other organization connected with such contracting or dealing
or because of any other reason), as vendor, purchaser or otherwise, nor shall
any such dealing, contract or arrangement entered into in respect of this Trust in which
any Trustee shall be in any way interested be avoided nor shall any Trustee so dealing
or contracting or being so interested be liable to account for any profit realized by
any such dealing, contract or arrangement by reason of such Trustee's holding
office or of the fiduciary relationship hereby established, provided the Trustee
shall act in good faith and shall disclose to the other Trustees the nature of his
interest before the dealing, contract, or arrangement is entered into.
Section 7. The Trustees and each of them shall be entitled to indemnity both out of the
trust property and by the Owners against any liability incurred by them or any of them in
the execution hereof, including, without limitation, liabilities in contract and in tort and
liabilities for damages, penalties and fines. Each Owner shall be personally liable
for all sums lawfully assessed for his share of the Association expenses.
Section 8. The Trustees may (but are not required to) elect from their number, at the annual
meeting of the Trustees, a Chairman, Treasurer, and Secretary, who shall
have such duties as are determined by the Trustees.
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ARTICLE V Beneficiaries and the Beneficial Interest in the Trust
Section 1. The beneficiaries shall be the Owners of the Subdivision. The beneficial
interest in the Trust hereunder shall be divided among the Owners in the percentage of
undivided beneficial interest appertaining to the Lots of the Subdivision, all as set
forth in Exhibit A as it may be amended from time to time, incorporated herein by
reference with the same force and effect as though fully set forth in the body of
this instrument.
Section 2. Each Lot in the Subdivision, whether owned by one person or more than
one person, shall have one vote in voting for and participating in the
activities of the Association, and shall have equal obligations with respect thereto. The
such Lot shall be exercised as they among themselves
determine; but in no event shall more than one vote be cast with respect to any
vote for
Lot. There shall be no split vote. Prior to the time of any meeting at which a vote is
to be taken, each co-owner shall file the name of the voting co-owner with the
Association in order to be entitled to vote at such meeting...
Section 3. An Owner may vote in person or by a written proxy dated no earlier
than six (6) months prior to the date of the meeting at which such vote is taken. A
proxy purporting to be executed by or on behalf of an Owner shall be deemed
valid unless challenged at or prior to its exercise. A proxy with respect to a Lot held in
the names of two or more persons shall be valid if executed by one of them, unless at or
prior to the exercise of the proxy, the Trustees receive specific notice to the
contrary from any one of said persons. All votes shall be one vote per Lot.
ARTICLE VI By-Laws
The provisions of this Article VI shall constitute the By-Laws of the Essex Crossing At
Montserrsat Homeowners Association Trust established hereby, to wit:
Section 1. Powers and Duties of Trustees.
The Board of Trustees shall have the powers and duties necessary for the
administration of the affairs of the Association and may do all such acts and
things except as by law or by this Trust may not be delegated to the Board
of Trustees by the owners. Such powers and duties of the Board of Trustees shall
include, but shall not be limited to, the following:
(a) - Road Ways and Open Space. The Association, subject to the
rights and privileges reserved to Developer, shall be responsible for the exclusive
maintenance, management and control of the road ways (including Pond View
Lane and the 20' Wide Access & Utility Easement as shown on the Plan) and
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Open Space and all improvements thereon, and shall keep the same
in good, clean, substantial, attractive, and sanitary condition, order
and repair as required by the Declaration.
(b) – Storm Water Management System. The Association, subject to the
rights and privileges of the Developer, shall be responsible for the exclusive
maintenance, management and control of the storm water management system and without
limitation complying with maintenance and inspection reports per the Stormwater
Operation and Maintenance Plan.
(C) – Walls. The Association, subject to the rights and privileges of the Developer, shall
be responsible for the exclusive maintenance, management and control of walls located in the
Subdivision.
(d)-Use of Open Space and Trails. Preserving the Open Space and Trails
as required by the Declaration.
(e) Determination of the common expenses required for the affairs of
the Association.
(f) Collection of the common expenses from the Owners.
(g) Employment and dismissal of the personnel necessary or advisable for the
maintenance and operation.
(h) Opening of bank accounts on behalf of the Association and designating the
signatories required therefore.
(i) Owning, conveying, encumbering, leasing and otherwise dealing
with Lots conveyed to it or purchased by it as the result of enforcement of the lien for
assessments, or otherwise.
() Obtaining of insurance for the Association pursuant to the provisions hereof.
(k) Making of repairs, additions and improvements to, or alterations of, the Open Space,
Road Ways (including Pond View Lane and the 20' Wide Access & Utility Easement as
shown on the Plan), Walls or Stormwater Management System, and other repairs
in accordance with the other provisions of the Association.
(1) The Board of Trustees shall have the power to enforce obligations of Lot Owners; to
enforce the rules and regulations of the Association; to allocate income and expenses;
and to do anything and everything else necessary and proper for the sound
management of the Association.
(m) Grant or relocate easements.
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(n) Enter into contracts for the management and maintenance of the road ways in the
subdivision, including Pond View Lane and the Emergency 20' Wide Access &
Utility Easement as shown on the Plan, Open Space and Trails, Common Parcels, Walls
or Stormwater Management System.
Section 2. Common Expenses, Profits and Funds.
A. Each Owner shall be liable for common expenses and shall be entitled to common profits
of the Association according to his respective percentage of undivided beneficial
interest in this Trust as the same may be amended from time to time. The Trustees
may at any time or times distribute common profits among the Owners in such
proportions. The Trustees may, to such extent as they deem advisable, set aside
common funds of the Association as reserve or contingent funds and may use the funds so set
aside for reduction of indebtedness or other lawful capital purpose, or, subject to
the provisions of the following Section 3, for repair, rebuilding or restoration of the trust
property, or for improvements thereto or other trust responsibilities, and the funds
so set aside shall not be deemed to be common profits available for distribution. The
Developer may require the first purchaser of each Lot to pay an initial contribution of
$250.00 at closing.
B. At least thirty (30) days prior to the commencement of each fiscal year of this Trust,
the Board of Trustees shall estimate the common expenses expected to be incurred
during such fiscal year, together with a reasonable provision for contingencies and
reserves, and after taking into account any undistributed common profits from
prior years, shall determine the assessment to be made for such fiscal year. promptly render
statements to the Owners for their respective shares of such assessment, and
each Owner thereafter shall pay one-twelfth of his share of the estimated
common expenses monthly in advance on the first day of each month. In the event that the
Board of Trustees shall determine during any fiscal year that the assessment so made is
less than the common expenses actually incurred, or in the reasonable opinion of the
Trustees likely to be incurred, the Board of Trustees shall make a supplemental assessment or
assessments and render statements therefore in the manner aforesaid, and such
statements shall be payable and take effect as aforesaid. The Board of Trustees may in
its discretion provide for payments of statements in monthly or other installments. In
order to create a reserve fund for future contingencies, the Board of Trustees may assess from
time to time, in addition to the foregoing assessments, each Owner for a sum or sums
sufficient to provide the Association with sufficient capital to meet emergencies and
other contingencies.
C. Until such time as the Developer shall have turned over the Association to the
Owners (which shall be defined as Developer no longer serving as sole Trustee),
Developer shall be obligated to fund any operating costs of the Association. After
turnover of the Association to the Owners, Developer shall, with respect to all
Lots (whether developed or undeveloped), which it continues to own, be a full voting
and assessment paying Beneficiary.
D. The Association's rights relating to interest, liens and collection options and
procedures are clearly stated in Article VII of the Declaration, which is incorporated
herein by reference.
Section 3. Insurance.
A. The Trustees may obtain and maintain, to the extent available, master policies of
casualty insurance for the benefit and protection of the Trustees and all of the
Owners, naming as the insured, and with loss proceeds payable to, the
Trustees hereunder, as Insurance Trustees for all of the Owners and their respective
mortgagees, as their interests may appear.
B. The Trustees may also so obtain and maintain, unless the same is not obtainable,
master policies of insurance with respect to the Common Elements for the benefit
and protection of the Trustees and all of the Owners, for: (a) comprehensive public
liability; (b) workmen's compensation and employees liability with respect to any
manager, agent, or employee of the Trust; and (c) such other risks as the Trustees in their
discretion deem it appropriate to insure. All such insurance shall be in such amounts
and form, as the Trustees shall in their discretion deem appropriate.
E. The cost of all such insurance obtained and maintained by the Trustees pursuant to the
provisions of this Section 3 shall be a common expense.
Section 4. Meetings.
A. The Board of Trustees shall meet annually on the date of (and immediately
the annual meeting of the Owners, and at such meeting may elect the Chairman, Treasurer, and
Secretary hereinbefore provided for. Other meetings may be called in such other
manner as the Trustees may establish, provided, however, that written notice of each
meeting, stating the place, day and hour thereof, shall be given at least fourteen (14)
days before such meeting to each member of the Board of Trustees. Three of the then
serving Trustees shall be necessary to constitute a quorum at all meetings, and
such meetings shall be conducted in accordance with such rules as the Board of Trustees
may adopt.
B. Commencing with the calendar year 2017 there shall be an annual meeting of
the Owners on the first Monday of November in each year, at 7:30 p.m., at a
reasonable place and time as may be designated by the Board of Trustees by written
notice given to the Owners at least fourteen (14) days prior to the date so designated.
Special meetings of the Owners may be called by The Board of Trustees or by
the Owners upon the written request of Owners entitled to more than fifty per
cent (50%) of a vote hereunder. Written notice of any such meeting designating
the place, day and hour thereof shall be given by the Board of Trustees to the Owners
at least fourteen (14) days prior to the date so designated. At the annual meeting of the
Owners, the Board of Trustees shall submit reports of the management and finances of the
Association. At any
meeting of the Owners, a quorum of Owners shall be fifty (50) percent of the Lots
being represented.
Section 5. Notices to Lot Owners.
Every notice to any Owner required under the provisions hereof, or which may be
deemed by the Trustees necessary or desirable in connection with the execution
of the trust created hereby or which may be ordered in any judicial proceeding, shall be
deemed sufficient and binding if a written or printed copy of such notice shall be given
by one or more of the Trustees to such Owner by leaving such notice with him at his Lot
or by mailing it, postage prepaid, addressed to such Owner at his address as it appears upon
the records of the Trustees, at least fourteen (14) days prior to the date fixed for
the happening of the matter, thing or event of which such notice is given, or such longer period
of time as may be required by the specific terms of this instrument. Owners may waive
notice by duly executing an appropriate waiver of notice.
Section 6. Inspection of Books; Reports to Lot Owners.
Books, accounts and records of the Trustees shall be open to inspection to any one or
more of the Trustees and the Owners at all reasonable times. The Trustees shall as
soon as reasonably possible after the close of each fiscal year, or oftener if convenient
to them, submit to the Owners a report of the operations of the Trustees for such year,
which shall include financial statements in such summary form and only in such
detail as the Trustees shall deem proper. Any person who has been furnished with
such report and shall have failed to object thereto by notice in writing to the Trustees,
given by registered or certified mail within a period of one (1) month of the date of
receipt by him, shall be deemed to have assented thereto.
Section 7. Checks, Notes, Drafts, and Other Instruments.
Checks, notes, drafts and other instruments for the payment of money drawn or
endorsed in the names of the Trustees or of the Trust may be signed by any two
(2) Trustees, or by any person or persons (who may be one of the Trustees) to
whom such power may at any time or from time to time be designated by not less than
a majority of the Trustees.
Section 8. Seal.
The seal of the Trustees shall be circular in form, bearing the inscription: "Essex
Crossing at Montserrat Homeowners Association Trust ", but such seal may be altered
by the Trustees, and the Trustees may, at any time or from time to time, at their option,
adopt a common or wafer seal which shall be valid for all purposes.
Section 9. Fiscal Year.
The fiscal year of the Trust shall be the calendar year.
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ARTICLE VII
Rights and Obligations of Third Parties Dealing With the Trustees;
Limitation of Liability
Section 1. No purchaser, mortgagee, lender, or other person dealing with
the Trustees as they then appear of record in said Registry of Deed shall be
bound to ascertain or inquire further as to the persons who are then Trustees
hereunder or be affected with any notice, implied or actual, otherwise than by a
certificate thereof, and such record or certificate shall be conclusive evidence of
the personnel of said Trustees and of any changes therein. The receipts of the
Trustees, or any one or more of them, shall be effectual discharges there from to the
persons paying or delivering the same and no person from whom the Trustees, or
any one or more of them, shall receive any money, property or other credit, shall
be required to see to the application thereof. No purchaser, mortgagee, lender, or
other person dealing with the Trustees or with any real or personal property which
then is or formerly was the trust property shall be bound to ascertain or inquire as to
the existence or occurrence of any event or purpose in or for which a sale,
mortgage, pledge or charge is herein authorized or directed or otherwise as to the
purpose or regularity of any of the acts of the Trustees or any one or more of
them purporting to be done in pursuance of any of the provisions or powers
herein contained, or as to the regularity of the resignation or appointment of any
Trustee, and any instrument of appointment of a new Trustee or discharge of a Trustee
purporting to be executed by the Trustees, Owners or other persons herein required
to execute the same, shall be conclusive evidence in favor of any such
purchaser or other person dealing with the Trustees of the matters therein recited
relating to such discharge, resignation or appointment or the occasion thereof.
Section 2. No recourse shall at any time be had under or upon any note, bond,
contract, order, instrument, certificate, undertaking obligation, covenant, or
agreement, whether oral or written, made, issued or executed by the
Trustees or by any agent or employee of the Trustees, or by reason of anything
done or omitted to be done by or on behalf of them or any of them against the
Trustees individually, or against any such agent or employee, or against any
beneficiary, either directly or indirectly, by legal or equitable proceedings, or by
virtue of any suit or otherwise, and all persons extending credit to, contracting
with, or having any claim against the Trustees, shall look only to the trust
property for payment under such contract or claim, or for the payment of any
debt, damage, judgment or decree, or of any money that may otherwise become
due or payable to them from the Trustees, so that neither the Trustees nor the
beneficiaries, present or future, shall be personally liable therefore; provided,
however, that nothing herein contained shall be deemed to limit or impair the liability
of the Owners under the provisions of Section 7 of Article IV.
Section 3. Every note, bond, contract, order, instrument, undertaking, obligation,
covenant or agreement, whether oral or written, made, issued or
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executed by the Trustees, or by any agent or employee of the Trustees, shall be
deemed to have been entered into subject to the terms, conditions, provisions and
restrictions hereof, whether or not express reference shall have been made to this
instrument.
Section 4. This Declaration of Trust and any amendments thereto and any certificate
herein required to be recorded, and any other certificate or paper signed by said
Trustees or any of them which it may deemed desirable to record, shall be
recorded with said Registry of Deeds and such record shall be deemed
conclusive evidence of the contents and effectiveness thereof according to the tenor
thereof; and all persons dealing in any manner whatsoever with the Trustees, the
trust property, or any beneficiary hereunder, shall be held to have notice of any
alteration or amendment of this Declaration of Trust, or change of Trustee or
Trustees, when the same shall be recorded wit Registry of Deeds. Any certificate
signed by the Trustees in office at the time, setting forth as facts any matters affecting the
Trust, including statements as to who are the beneficiaries, as to what action has been
taken by the beneficiaries, and as to matters determining the authority of the Trustees
to do any act, when duly acknowledged and recorded with said Registry of Deeds,
shall be conclusive evidence as to the existence of such alleged facts in favor of
all third persons, including the Trustees, acting in reliance thereon. Any certificate
executed by any Trustee hereunder, or by a majority of the Trustees hereunder,
setting forth the existence of any facts the existence of which is necessary to
authorize the execution of any instrument or the taking of any action by such Trustee or
majority, as the case may be, shall, as to all persons acting in good faith in
reliance thereon, be conclusive evidence of the truth of the statements made in such
certificate and of the existence of the facts therein set forth.
ARTICLE VIII Amendments and Termination
Section 1. In his sole discretion, the Developer while serving as sole Trustee may
at any time and from time to time amend, alter, add to, or change this Declaration
of Trust in any manner. After the turnover of the Association to the Owners, the
Trustees, with the consent in writing of seventy-five (75%) percent of the Owners
may at any time and from time to time amend, alter, add to, or change this Declaration
of Trust in any manner or to any extent, the Trustees first, however, being duly
indemnified to their reasonable satisfaction against outstanding obligations and
liabilities; provided always, however, that no such amendment, alteration, addition or
change shall be valid or effective: (a) which is made without the consent of the
Developer prior to the date on which the Developer ceases to own any of the beneficial
interest hereunder; (b) according to the purport of which the percentage of the
beneficial interest hereunder of any Owner would be altered, other than by consent
of all of the Owners. Any amendment, alteration, addition or change pursuant to the
foregoing provisions of this Section shall become effective upon the recording with
said Registry of Deeds of an instrument of amendment, alteration, addition or
change, as the case may be, signed, sealed and acknowledged in the manner
required in Massachusetts for the acknowledgment of deeds, by the Trustees setting forth
in full the amendment, alteration,
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addition, or change, and reciting the consent of the Owners herein required to
consent thereto. Such instrument, so executed and recorded, shall be conclusive evidence of
the existence of all facts and of compliance with all prerequisites to the validity of
such amendment, alteration, addition, or change, whether stated in such
instrument or not, upon all questions as to title or affecting the rights of third persons,
and for all other purposes.
ARTICLE IX Sale of Lots
Section 1. No Severance of Ownership. No Owner shall execute any deed, mortgage,
or other instrument conveying or mortgaging title to his Lot without including
therein the Appurtenant Interests (as hereinafter defined); it being the intention
hereof to prevent any severance of such combined ownership. Any such deed,
mortgage, or other instrument purporting to affect one or more of such interests,
without including all such interests, shall be deemed and taken to include the interest
or interests so omitted, even though the latter shall not be expressly mentioned or
described therein. No part of the Appurtenant Interests of any Lot may be sold,
transferred, or otherwise disposed of, except as part of a sale, transfer, or other
disposition of the Lot to which such interests are appurtenant, or as part of a sale, transfer,
or other disposition of such part of the Appurtenant Interests of all Lots.
"Appurtenant Interests", as used herein, shall include: (i) the
undivided beneficial interest of a Owner in the Trust; (ii) the interest of such
Owner in any Lots or Parcel theretofore acquired by the Trustees, or their designee, on
behalf of all Owners, or the Proceeds of the sale or lease thereof, if any; and (iii) the
interest of such Owner in any other assets of the Trust.
Section 2. Payment of Assessments. No Owner shall convey, mortgage, pledge,
Trustees
all unpaid common charges theretofore assessed by the
Trustees against his Lot and until he shall have satisfied all unpaid liens
hypothecate, sell, or lease his Lot unless and until he shall have paid in full to the
against such Lot.
Section 3. Certificate of no Common Expenses Due. The Trustees when requested
shall provide a Certificate stating the amount of any outstanding common
expenses or assessment due by any Owner or assessed against any particular Lot
which, when issued and recorded at Essex South Registry of Deeds may be
completely relied upon by any purchaser of said Lot and or lender taking a mortgage
on said Lot and binding against the Association.
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ARTICLE X Construction and Interpretation
In the construction hereof, whether or not so expressed, words used in the singular or
in the plural, respectively, include both the plural and singular; words denoting
males include females; and words denoting persons include individuals, firms,
associations, companies (joint, stock or otherwise), trusts and corporations, unless a contrary
intention is to be inferred from or required by the subject matter or context. The
captions of Articles and Sections are inserted only for the convenience of reference
and are not to be taken to be any part hereof or to control or affect the meaning,
construction, interpretation, or effect hereof.
All of the trusts, powers, and provisions herein contained shall take effect and be
construed according to the laws of the Commonwealth of Massachusetts.
The invalidation of any provision or provisions of this Trust by judgment or court order shall
not affect or modify any of the other provisions of the Trust, which shall remain in full
force and effect.
ARTICLE XI CONDITIONS OF PLANNING BOARD APPROVAL
The subdivision is developed pursuant to the Planning Board Approval.
Any and all conditions of the Planning Board Approval must be adhered to and followed.
Furthermore, notwithstanding any contradictory language in this Trust or the Declaration,
it may not be amended to avoid any condition of the Planning Board Approval or without the
prior written consent of the City.
ARTICLE XII CONSERVATION COMMISSION
The subdivision is developed within and around Wetland areas that are subject to
the jurisdiction of the Beverly Conservation Commission pursuant to an Order of
Conditions recorded at Essex South Registry of Deeds at Book 33797, Page
168. The dumping of leaves, yard waste, debris or any other material into
any Wetland area or into the Open Space or Common Parcels is prohibited. The
Owners of any Lot responsible for violating this prohibition shall be responsible
financially and criminally for any violation of this prohibition, including all costs
(including court costs and attorney fees) associated with the restoration of the
disturbed area.
14
AIULUI
IN WITNESS WHEREOF, the said Trustees have hereunto set
their hands and seals on this_9:1h day of Pecom bier ,
2015.
DUC Residential LLC By: Paul DiBiase, Manager
COMMONWEALTH OF MASSACHUSETTS
Middlesex, SS
December 9, 2015
On this day of December, 2015, before me, the undersigned
notary public, personally appeared Paul DiBiase, Manager as
aforesaid proved to me through satisfactory evidence of
identification, which was his Massachusetts Drivers license to be
the person whose name is signed on the preceding document and
acknowledged to me that he/she signed it voluntarily for its stated
purpose.
Kotary Public: Brien pirn Coral My Commission
Expires: 3/14/19
FIFPEPET BERFPTEDET
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EPPEEEPEETTIFONER
MARC
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S.ALTH ON SETTS
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EXHIBIT A
Initially, each Lot shall have 6.25 percent beneficial interest in the
Trust.
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