Restrictions and Covenants revised 7-16-2009
DRAFT
DECLARATION OF COVENANTS AND RESTRICTIONS, EASEMENTS, AND MAINTENANCE AGREEMENTS
This Declaration is made this
_____
day of __________, 2009, by Tofino
Associates, Inc. ("Tofino") and Northern Avenue Homes, Inc. (“Northern”), the owners of
two parcels of land with frontage on Northern Avenue, as shown on a plan of land
entitled "North Street Condos, Special Permit Application…….., Northampton,
Massachusetts,", dated ___________ ,2009, and recorded with the Hampshire County
Registry of Deeds at Plan Book _____, Pages _____ (the “Special Permit Plan”).
For Tofino’s and Northern’s ownership of the premises, see the following deeds:
WHEREAS Tofino intends to install a pressure sewer line and an 8” water line in the locations shown on Sheets ______________
of the Special Permit Plans approved
by the City of Northampton Planning Board for North Street Condos (the “Sewer and
Water Lines”) for the benefit of the dwelling units which are recorded in the Hampshire
County Registry of Deeds in Book of Plans _____, Page _____;
WHEREAS Tofino intends to form a Condominium pursuant to MGL Ch. 183A
covering the land shown on said Plans, Book _____, Page _____ the common areas of
which Condominium will be managed and controlled by the Board of Trustees of the
Condominium Association (or Homeowners Association) (the “Board of the Condominium Association”); and
WHEREAS the parcels are subject to a Decision of the Northampton Planning
Board, dated _______________, 2009, and recorded with said Registry of Deeds at
Book _____, Page _____ (the “Planning Board Decision”) and an Order of Conditions
from the Northampton Conservation Commission, dated _____________, 2009, and
recorded with said Registry of Deeds at Book _____, Page _____ (the “Order of Conditions”); and
WHEREAS Tofino and Northern wish to provide for the on-going maintenance
and repair of the roadway, sidewalks, the Sewer and Water Lines, and the Stormwater
Management System, to establish a monitoring, inspection and maintenance system for
the 35’ No Disturb Zone to the wetlands, to maintain the Common Open Space, to
establish utility and other easements to meet the requirements of the Planning Board
Decision and the Conservation Commission Order of Conditions, and to establish other restrictions, covenants, rights, and obligations affecting the parcels;
NOW, THEREFORE, Tofino and Northern do hereby declare that the following
provisions shall encumber and/or benefit the parcels, roadways, the Sewer and Water
Lines, the Stormwater Management System, the 35’ Wetlands No Disturb Zone, and the Common Open Space:
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RESPONSIBLE PARTY
Prior to the formation of the Condominium Association, Tofino and Northern shall
be responsible for the obligations set forth in this Declaration. Upon the formation of the
Condominium Association, the Board of the Condominium Association, hereinafter
singularly or collectively called the “Obliged Party,” shall be solely responsible for the obligations set forth in this Declaration.
EXCLUSIVE USE ZONES
Each Unit shall have an exclusive easement for gardening and planting within
____ feet of the exterior of their Unit; however all planting must be approved by the
Condominium Association and the Condominium Association reserves an easement
through said Exclusive Use zones to run utility lines and water and sewer lines to serve
the Units in the Condominium. Each Unit Owner shall own in connection with their Unit
all sewer lines and piping from the interior of the building running through the foundation
to the sewer ejector pump which shall also be owned by the Unit Owner for each Unit
and Unit Owners will have an easement across the common areas and through the
foundation for their respective sewer piping and sewer ejector pump.
ROADWAYS
The Obliged Party shall be solely responsible for: (a) the maintenance, repair,
and reconstruction of all Roadways within the condominium development at all times so
as to maintain it in a good and passable condition, including without limitation, deicing,
snow removal, and paving; (b) the maintenance, repair, and reconstruction of any
sidewalks located within the development at all times so as to maintain them in a good
and passable condition, including without limitation, snow removal and paving; and (c)
establishing Rules and Regulations governing the speed and use of said Roadways and
said sidewalks, to be recorded hereafter at the Hampshire County Registry of Deeds.
The Roadways shall be maintained, repaired, constructed, and reconstructed at
all times by the Obliged Party so as to be in a good and passable condition, including
without limitation, paving and snow removal; and any grade of the said Roadways shall be reconstructed and maintained with a surface of bituminous concrete.
The Obliged Party shall meet a minimum of once each year to review the
condition of the Roadways. The Obliged Party shall determine when, to what extent,
and in what manner, maintenance, repairs, reconstruction, and other work on the
Roadways shall be conducted. All decisions shall be determined by a majority vote of
Tofino and Northern or the Condominium Association as the case may be.
If any of the Condominium Owners has work done which necessitates digging up
the said Roadway and/or sidewalk for the sole benefit of said Condominium Owner,
then said Condominium Association shall be responsible for returning the Roadway
and/or sidewalk to its original condition and the Unit Owners who benefits from such work shall be responsible for paying for the cost thereof, and in the
event Condominium
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Unit Owner does not pay such work, the Condominium Association will have a lien on the Unit as a special common charge.
The Roadways and any related sidewalks and all easements granted herein shall
remain private and the Obliged Party or Condominium Owners covered by this
Declaration shall not petition that the City of Northampton take over the maintenance of
the Roadways, other easements, or any related sidewalks as a public way. The Obliged Party shall not install a gate to prevent public access to the Roadways.
The City of Northampton is granted an easement to inspect View Avenue and to
maintain, repair and reconstruct the portion of View Avenue that serves the existing houses on View Avenue.
SEWER AND WATER LINES
The Obliged Party shall be responsible for managing the Sewer and Water Lines, including providing for periodic inspections, coordinating any required maintenance,
repair, and reconstruction over the lifetime of the Sewer and Water Lines, and
establishing any reserve accounts it reasonably determines are necessary. Tofino and
Northern shall have the right to install all water and sewer service in the first instance
and all connections to said service for individual units.
If a unit is connected to the Sewer and Water Lines, the Owner of said unit shall
contribute a proportional share of the costs of inspecting, maintaining, repairing, and
reconstructing the Sewer and Water Lines, including making contributions to any reserve accounts established by the Board of the Condominium Association.
The Obliged Party shall be responsible for the inspection, maintenance, repair,
and/or reconstruction of the Sewer and Water Lines as a private responsibility in
accordance with the provisions of this Declaration; the City of Northampton shall have
no obligation whatsoever with respect to the inspection, maintenance, repair, and/or
reconstruction of the Sewer and Water Lines; and the Obliged Party shall indemnify and
hold the City of Northampton harmless from any and all liability, expense, or cost of any
kind with respect to the inspection, maintenance, repair, and/or reconstruction of the Sewer and Water Lines.
The City of Northampton is granted an easement to (a) inspect the Sewer and
Water lines in View Avenue and (b) to perform maintenance and repair of the said
Sewer and Water lines in View Avenue that serve the existing houses on View Avenue.
STORM WATER MANAGEMENT
The Obliged Party shall be responsible for the ongoing costs of all storm water
management associated with the development in accordance with the Storm Water
Management Plan on file with the City of Northampton Department of Public Works. The
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Obliged Party shall be responsible for full and timely compliance with the Storm Water Management System Operation & Maintenance Plan, as follows:
1) Street Sweeping
Street and parking area sweeping shall take place twice annually.
2) Rain Garden
Two rain garden/bioretention areas have been incorporated into the
stormwater system to remove pollutants within the stormwater runoff. Both the
pre-treatment stone diaphragm systems and bioretention areas should be
inspected monthly for sediment build-up, litter and debris, structural damage and
standing water. Inspect soil and repair eroded areas within the bioretention systems monthly and re-mulch void areas as needed. Treat diseased vegetation
as needed. Remove and replace dead vegetation twice per year (spring and fall).
Remove invasive species as needed to prevent them from spreading into the
bioretention areas. Replace mulch every two years in the early spring. In the
winter, it is important to ensure that snow is not plowed into the rain garden as this will cause the runoff to bypass the system without proper treatment.
3) Detention Basin (The following recommendations follow the MADEP Stormwater Policy guidelines.)
Inspections
(a) Initial six months of use: Examine for stabilization and function,
including determination of the duration of water standing in the basin, any
sediment erosion, excessive compaction of soils, or low spots.
(b) Twice per year: Examine basin for the following: differential
settlement, cracking, erosion, leakage, or tree growth on embankments, condition of riprap, sediment accumulation, and health of turf where applicable.
Any adverse conditions noted during any inspections shall be addressed by repair or reconsideration of design components.
Mowing and General Maintenance
Occasional mowing (1-2 times per year min.) shall be performed on the
side slopes and basin bottom where turf is present. Accumulated grass clippings
and/or organic matter and trash and debris shall be removed. Any clogged
surface areas can be loosened by deep tilling; tilled areas must be immediately
revegetated. Tilling may be used in this manner for no more than two
consecutive maintenance periods. Thereafter, sediment in the clogged areas shall be removed, liner material replaced, and vegetation reestablished.
Dredging/Sediment Removal
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Accumulated sediment shall be removed from the basin at five (5) year intervals,
or as required to maintain the function of the stormwater management system as
designed. During this process and until the disturbed sediment has settled, the
outlet pipe shall be sealed so as to minimize the risk of conveying sediment beyond the basin.
4) Grassed Swales
Swales shall be mowed at least once per growing season to prevent
establishment of woody growth and other undesirable plants that inhibit proper
performance. Grass vegetation should not be cut shorter than 4”. It is important
not to engage in excessive mowing operations, as this keeps the grass too short and decreases the efficiency of the vegetation to reduce runoff borne sediments
and velocities. Sediment and debris shall be removed manually at least once per year before the vegetation is adversely impacted.
5) Hooded Catch Basin and/or Drain Manhole with Sump
Oil and water separators should be inspected at least four times per year
and cleaned annually or more often if required. Oil and sediments should be
removed and disposed of in accordance with local, state and federal guidelines
and regulations. In the case of an oil or bulk pollutant release, the system must
be cleaned immediately following the spill and the proper authorities notified.
6) Stormwater Treatment Chambers
The Stormwater Treatment System requires minimal routine maintenance;
however, it is important that the system be properly inspected and cleaned when
necessary in order to function at its best. The rate at which the system collects
pollutants will depend more heavily on site activities than the size of the unit, e.g.
heavy winter sanding will cause the grit chamber to fill more quickly, but regular
sweeping will slow accumulation. The water quality treatment system shall
consist of Stormceptor or equal treatment chambers. For more detail of how the Stormceptor should be maintained see the Stormceptor Owner Manual.
7) Dry Wells
Dry wells basins have been incorporated into the stormwater
system for the site to specifically receive roof runoff. Proper maintenance of roof
gutters that drain to the system will help to protect the integrity of the infiltration
basins. Sediments and debris should be removed and disposed of in accordance with local, state and federal guidelines and regulations.
The Obliged Party shall inspect the Drywells annually and repair or replace them as necessary.
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The Obliged Party shall inspect the screens in the gutters at the top of the
downspouts at least twice annually, and clean and/or replace the screens as necessary.
The Obliged Party shall inspect the downspout filter baskets at least twice
annually, and remove any leaves and debris from the downspout filters.
8) Snow Removal
The stormwater management system is designed to accommodate
volumes from snow melt. Since plowed snow from paved surface may contain
sediment, oils and various pollutants, all snow melt from vehicular areas on the
site shall be routed through the drainage system or removed from the site. Snow
removed from the site shall be disposed of such that it or its melt will have no adverse effect on other resource areas.
Additionally, the Obliged Party shall submit to the Office of Planning and
Development annually, no later than November 15th of each year: (1) maintenance
reports with documentation on the conditions revealed by all inspections and (2)
receipts for all cleaning and work for all items specified in the Inspection and
Maintenance Schedule of the Storm Water Management Plan. Each such report shall
indicate the status of each element of the Storm Water System covered by the Storm Water Management Plan.
The City of Northampton is granted an easement to (a) inspect the Storm Water
System and (b) to perform specified maintenance obligations of the Obliged Party, if the
City has notified the Obliged Party in writing that specified maintenance obligations
must be performed by a date certain and the Obliged Party has failed to perform such maintenance obligations by such date.
SNOW REMOVAL AND MANAGEMENT PLAN
Snow shall be stockpiled only in the “Snow Melt Trenches” located adjacent to
unit 1 and unit 13, as shown on the snow stockpiling plan (see Attachment ##), in a total
of up to six parking spaces, or pushed off the parking area between units 2 and 3, units
6 and 7 and units 14 and 15. No snow shall be dumped or stockpiled directly into any Wetlands Resource Area or within 50 feet thereof.
The Obliged Party shall contract with a qualified vendor to maintain the pavers
over the snow melt trenches, including vacuuming the pores in the pavers as needed.
The Obliged Party shall use Ice Ban, Magic Minus Zero, or an equivalent liquid
deicing agent (not containing sodium chloride,) for routine deicing on the roadways.
The Obliged Party reserves the right to use a commercially available sand mixture on the roadways if in a particularly severe or icy weather condition the
aforementioned product is not sufficient to permit safe vehicular travel.
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The regular use of sand is restricted to the paved sidewalks that are used as
access from parking to dwelling units. Currently no vendors are available that can apply
the above-mentioned, sodium chloride free, liquid deicing agent to sidewalks. The
Obliged Party shall make an ongoing good faith effort to find a vendor that can apply the product to sidewalks and utilize said product if possible.
The Conservation Commission and DPW shall be notified by the Obliged Party where a violation of these requirements occurs.
35-FOOT WETLAND BUFFER NO DISTURB ZONE
The 35-foot buffer zone to the bordering vegetated wetlands shall be a No
Disturb Zone unless otherwise authorized by the Northampton Conservation
Commission. Permanent concrete markers set 2 feet above ground level and spaced
no more than 25 feet apart, marking the 35-Foot Wetland Buffer No Disturb Zone must
remain in place in perpetuity along the entire length of the 35-foot wetland buffer, except
around the detention basin and where landscape retaining walls and a footpath along
the 35-foot buffer zone are constructed. No activity, other than walking, birding, or other
comparable passive recreational activities shall take place within the No Disturb Zone or the wetland resource area.
The Obliged Party shall contract with a qualified person, approved by the
Conservation Commission, to annually inspect the 35-foot No Disturb Zone. This
person shall provide to the Obliged Party and to the Conservation Commission an
annual inspection report of (1) the integrity of the permanent markers, (2) the condition
of the No Disturb Zone, including, but not limited to, any encroachment, erosion,
destruction of vegetation, dumping of waste of any kind, including lawn clippings and
other yard waste, and (3) whether any restoration is required. This report shall be
submitted to the Conservation Commission by September 1 of each year.
The Obliged Party is solely responsible for the cost of the annual inspection and report, as well as any restoration deemed required by the Northampton Conservation
Commission.
The City of Northampton is granted an easement to (a) inspect the 35-Foot No
Disturb Zone and (b) to perform any necessary maintenance and/or restoration
obligations of the Obliged Party, if the City has notified the responsible party in writing
that specified maintenance and/or restoration obligations must be performed by a date certain and the Obliged Party has failed to perform such maintenance and/or
restoration obligations by such date.
COMMON OPEN SPACE
The Obliged Party is forbidden by Condition ## of the Order of Conditions to use
any lawn chemicals on the site. An annual acknowledgement of this requirement by the
Obliged Party shall be provided to the Conservation Commission by September 1 of each year.
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The Common areas and any lawn in the Exclusive Use Areas, will be maintained
by the Condominium Association. All landscaping debris will either be mulched or
disposed of off site. There shall be no work or dumping allowed in the 35-Foot Wetland
Buffer No Disturb Zone. There shall be no structures erected in the said zone, and
there shall be no structures built in the common areas without the written approval of the Condominium Association.
ESCROW ACCOUNT
The Obliged Party shall deposit $12,000 in an interest-bearing Escrow Account
to assure that the Obliged Party complies fully with its obligations under the Planning
Board Decision, the Conservation Commission Order of Conditions, the Stormwater
Management Plan, and the 35-Foot Wetland Buffer No Disturb Zone. The City of
Northampton (the “City”) shall be a co-signer on the account. The funds in the Escrow
Account shall be owned by the Condominium Association and interest thereon shall be
payable to the Condominium Association once the Condominium is formed; prior to
such time the funds will be owned and interest paid to Tofino and Northern.
If the City has notified the Obliged Party in writing that specified maintenance,
repair, and/or restoration obligations of the Obliged Party under this Declaration and the
Planning Board Decision, the Conservation Commission Order of Conditions, the
Stormwater Management Plan, and the 35-Foot Wetland Buffer No Disturb Zone must
be performed by a date certain and the Obliged Party has failed to perform such
maintenance, repair, and/or restoration obligations by such date, the City may expend
funds from the said Escrow Account to perform the specified obligations. The City may
thereafter assess or bill the Obliged Party for such expenditure in order to replenish and
maintain the account at $12,000. The Obliged Party shall have ninety (90) days to pay
such an assessment and may assess the Unit Owners for their proportionate share of
such expenditure. If the Obliged Party fails to pay or reimburse the City for the
expenditure within ninety (90) days, the City shall have standing and the right to file an
action against the Obliged Party to enforce the assessment, including the right to seek a prejudgment lien or other security for the enforcement of the assessment.
ASSESSMENT COLLECTION PROCEDURES
The failure of any party to abide by the provisions of this Declaration which affect the Roadway and Sidewalks, the Sewer and Water Lines, the Stormwater Management
System, the 35-Foot No Disturb Zone, and the Common Open Space shall not act to
forfeit that party’s rights under the easements and rights granted above. However, if a Unit Owner fails to pay that Unit Owner’s said proportionate share of
the assessments
on the date when due as stated in an assessment issued by the Board of the
Condominium Association, as applicable, then such assessment shall become
delinquent and shall, together with such interest thereon and the cost of collection
thereof, become a continuing lien on the property which shall bind such property in the
hands of the then owner(s) and his/her/its successors in record title. The personal
obligation of the then owner(s) to pay such assessment, however, shall remain as
his/her/its personal obligation and shall not pass to his/her/its successors in record title unless expressly assumed by them.
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If the delinquent assessment is not paid within thirty (30) days after the due date,
the assessment shall bear interest from the date of delinquency at the rate of eighteen
percent (18%) per annum, and the Board of the Condominium Association may bring an
action at law against the delinquent Unit Owner or other person personally obligated to
pay the same or to foreclose the lien against the property, and there shall be added to
the amount of such assessment the costs of preparing and filing the complaint in such
action, and in the event a judgment is obtained, such judgment shall include interest on
the assessment as above provided and a reasonable attorney's fee to be fixed by the Court together with the costs of the action.
The lien of the assessments provided for herein shall be subordinated to the lien
of any mortgage or mortgages now or hereafter placed upon the properties subject to the assessment.
The lien provided for herein for payment of assessments may be enforced by
sale at public auction of the Unit Owner’s premises in accordance with the provisions of
M.G.L. Chapter 183A and Chapter 254, Section 5A. The lien sought to be foreclosed
shall include the aforesaid interest and legal costs and attorney's fees incurred as a result of the foreclosure proceedings.
The Condominium Association Board of Directors shall establish and elect one of
their members to the position of Treasurer with respect to the maintenance and repair
provisions of this Declaration. Upon request, and within seven (7) days after such
request, the said Treasurer shall issue, in a form recordable with the said Registry of
Deeds, a Certificate indicating that a Unit Owner is current in the Unit Owner’s payment
of assessments or, if not, the amount which is currently owed.
MISCELLANEOUS PROVISIONS
The obligations of a Unit Owner under this Agreement shall continue regardless
of
whether he or she resides in the Owner’s Unit.
In order to ensure the continued maintenance, repair, and reconstruction of
(Name of Street), the sidewalks, the Sewer and Sewer Lines, the Storm Water System,
the 35-Foot No Disturb Zone and the Common Open Space, the rights and obligations
established by this Declaration shall run with the fee simple ownership of the Units and
the Units shall be conveyed together with and subject to this Declaration, as amended from time to time.
The Owners of the Units may modify any portion of this Declaration by the
agreement of seventy-five (75%) percent of the then current Unit Owners (with such
modifications to be in writing and recorded with said Registry of Deeds) so long as such modifications do not:
(a) materially interfere with: (i) the on-going maintenance of the
roadways and the sidewalks in a good and passable condition, (ii) the on-going
maintenance of the Sewer and Water Lines in a good and fully-functioning state, or (iii)
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the on-going maintenance of the Storm Water System in a good and fully-functioning
state, or (iv) the ongoing adherence to the 35-Foot No Disturb Zone, or (v) the ongoing
maintenance of the Common Open Space; or
(b) modify any provision of this Declaration which is required by the Planning Board Decision and Special Permit granted by the City of Northampton.
(c). modify any provision of this Declaration which is required by the Conservation Commission Order of Conditions granted by the City of Northampton.
IN WITNESS WHEREOF TOFINO ASSOCIATES, INC. and NORTHERN
AVENUE HOMES, INC., has caused to be affixed hereto and this instrument to be
signed and sealed by DOUGLAS A. KOHL, their President and Treasurer, this ____ day of ______________, 2009.
TOFINO ASSOCIATES, INC.
By
Witness Douglas A Kohl
Its President and Treasurer
NORTHERN AVENUE HOMES, INC.
By
Witness Douglas A Kohl
Its President and Treasurer
COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE COUNTY, SS.
On this _____
day of _________, 2009, before me, the undersigned notary
public, personally appeared DOUGLAS A. KOHL, as President and Treasurer of Tofino
Associates, Inc. and Northern Avenue Homes, Inc., proved to me through satisfactory
evidence of identification (which was my personal knowledge as to his identity) to be the
person whose name is signed on the preceding or attached document, and
acknowledged to me that he/she signed it voluntarily for its stated purpose.
Gloria McPherson, Notary Public My commission expires: 9/4/2009.
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