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this document is OCR from the Declaration Of Trust Original Document from Hampshire County Registry of deeds
original text version of OCR document
DECLARATION OF TRUST OF
JEFFREY AMHERST MANOR CONDOMINIUM
TRUST AND BY-LAWS
DECLARATION OF TRUST made this 7th day of
February, 1981. by MILES A. SEAVER.(the "Trustee"). (which
term and any pronoun referring thereto shall be deemed to include his
successors in trust hereunder and to mean the Trustee or the Trustees
of the time being hereunder wherever the context so permits). The
business address of said Trustee is as follows:
61 Hillcrest Place
Amherst, Massachusetts 01002
ARTICLE I Name of Trust
The Trust hereby created shall be known as
JEFFREY AMHERST MANOR CONDOMINIUM TRUST (the "Trust" .
Under that name. so far as legal, convenient. and practicable. all
business shall be
conducted by the Trustee and all instruments in
writing shall be executed by the Trustee.
ARTICLE II The Trust Purposes
Section 2.1. Unit Owners' organization
All of the rights and powers in and with respect
to the common areas and facilities (the "Common Areas and
Facilities") of JEFFREY AMHERST
MANOR CONDOMINIUM (the "Condominium")
established by a Master
Deed recorded herewith (the "Master Deed")
with the Hampshire
County Registry of Deeds (the "Registry of
Deeds") which are by
virtue of the Massachusetts General Laws.
Chapter 183A. as amended . ("Chapter 183A"). conferred upon
or exercisable by the organization of the Unit Owners of said
Condominium, and all property.
real end personal. tangible and intangible.
conveyed to the Trustee hereunder shelf vest in the Trustee in trust
to exercise manage, administer and dispose of the same, and to
receive the income thereof (a) for the benefit of the owners of
record from time to time of the Units of the Condominium in the
Common Areas and Facilities according to the schedule of undivided
beneficial interest set forth in Article IV hereof (the "beneficial
interest"). and (b) in accordance with the provisions of Section
10 of Chapter 183A for the purposes therein set forth.
This Trust is the organization of Unit Owners
established
pursuant to the provisions of Chapter 183A for
the purposes therein set forth.
Section 2.2. Not a Partnership
It is hereby declared that a trust and not a
partners p as been created and that the Unit Owners are
beneficiaries. and not partners or associates nor in any other
relation whatever between themselves with respect to the Trust
property. and hold no relation to the Trustee other than of
beneficiaries. with only such rights as are conferred upon them as
such beneficiaries hereunder and under and pursuant to the provisions
of chapter 183A.
ARTICLE III M
Section 3.1. Number.
After the Operating Event as hereinafter
described. there shall at all times be Trustees, consisting of such
number. not less than three (3), nor more than five (5). as shall be
determined by vote of more than fifty (50) per cent of the beneficial
interest hereunder, except that there shall always be an odd number
of Trustees. Until JEFFREY AMHERST MANOR, INC.. the creator of the
Condominium. and its successors or assigns (the "Sponsor“)
owns less than nine (9) Units of the Condominium. or until four (4)
years from the date hereof, whichever occurs first (the "Operating
Event"). there shall be not more than one (1) Trustee and such
Trustee shall be designated, appointed, and/or elected by the
Sponsor.
Within sixty (60) days after the occurrence of
the Operating Event. the Trustee than in office shall tender his or
her resignation and his or her office shall be deemed vacant so as to
permit such vacancy to be filled in the manner hereinafter provided.
In the event that said resignation is not tendered pursuant to the
preceding sentence. then said office shall automatically be deemed
vacant on the seventy-fifth (75th) day after
the Operating Event, and such vacancy shall be
filled in the manner hereinafter provided.
Section 3.2. Term.
The term of each Trustee shall be for one (1)
year from the annual meeting of Unit Owners (or special meeting in
lieu thereof) at which the Trustee was appointed and shall end at the
annual meeting (or special meeting in lieu thereof) at which time
Trustee s successor is due to be appointed except that the term of
any Trustee appointed to fill a vacancy in an unexpired term shall
end when his or her predecessor‘s term would. but for the vacancy.
have ended.
The term of the original Trustee shall end as
follows: at the end of four (a) years from the date hereof. or until
successors are elected pursuant to the term hereof.
Section 3.3. Vacancies; Appointment and
Acceptance of Trustees.
If and whenever any trustee's term expires or
for any other reason. including without limitation, removal,
resignation or death of a Trustee. the number of Trustees shall
be less than the number established under
Section 3.1, a vacancy or vacancies shall be deemed to exist.
Such vacancy shall be filled by (a) an
appointment of a natural person to act as such Trustee (i) by an
instrument signed by the Sponsor, or (ii) if after the Operating
Event. by vote of Unit Owners holding more than 501 of the bane
benificial interest hereunder. or (iii . if, after the Operating
Event, Unit Owners holding such percentage have not within thirty
(30) days after the occurrence of such vacancy made such a
appointment. y
a majority of the then remaining Trustee(s§, or
by the remaining Trustee or Trustees, it only one (at any time), and
(b) the acceptance of such appointment, signed and acknowledged by
the person so appointed.
Such appointment shall become effective upon the
filing with the Registry of Deeds of a certificate of such
appointment signed (1) by the Sponsor. or (2) if, after the Operating
Event; by majority of the then remaining Trustee(s). or by the sole
remaining Trustee. if only one, setting forth the fact and basis of
compliance with the provisions of this Section 3.1. together
with such acceptance; and such person shall then
be and become ‘such Trustee and be vested with the title of the
trust property jointly with the remaining or surviving Trustee or
Trustees without the necessity of any act of transfer or conveyance.
If there shall be no remaining Trustee and a
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 Unit Owner and notice to any Unit Owners and to such other, if
any, parties in interest to whom the court may direct that notice be
given.
The foregoing provisions of this Section
notwithstanding despite any vacancy in the office of Trustee, however
caused and for whatever duration. the remaining or surviving
Trustee(s) shall continue to exercise and discharge all of the
powers,
discretions and duties hereby conferrer or
imposed upon the Trustees.
Section 3.4. Trustee Action.
In any matter relating to the administration of
the trust hereunder and the exercise of the powers hereby conferred,
the Trustees shall act by majority vote at any duly called meeting at
which a quorum as defined in Section 5. .1, is present. The Trustees
may act without a meeting in any case by unanimous written consent
and in cases requiring, in their sole judgment, response to an
emergency by majority written consent.
Notwithstanding the preceding language. any
instrument signed by a majority of those Trustees appearing from the
records of the Registry of Deeds to be such. shall be conclusive
evidence in favor of every person relying thereon or claiming
thereunder. that at the time of delivery thereof, the execution and
delivery of that instrument was duly authorized by all Trustees: and
any instrument signed by any one or more Trustees which contains or
is accompanied by a certification that such Trustee or Trustees were,
by appropriate vote of the Trustees, authorized to execute and
deliver the same, shall in like manner be conclusive evid-
ence in favor of every person relying thereon or
claiming thereunder.
Section 3.5. Resignation; Removal.
Any Trustee may resign at any time by instrument
n in writing t ng signed and duly acknowledged by that Trustee.
Resignations shall take effect upon the recording of such instrument
with the Registry of Deeds.Subject to the rights of Sponsor to
designate Trustees of its
own choice. any Trustee may be removed with or
without cause by vote of Unit Owners entitled to more than fifty per
cent (50%)
of the beneficial interest hereunder. The
vacancy resulting from such removal shall be filled in the manner
provided in Section 3. . Any removal shall become effective upon the
recording with the
Re registry of Deeds of a certificate or removal
signed by a maj-
or ty of the remaining Trustees in office, or by
three Unit Owners. who certify under oath that Unit Owners holding
more than fifty per cent (50.) of the beneficial interest hereunder
er have voted such removal. By instrument recorded with the Registry
of Deeds. the Sponsor may remove, with or without cause. any Trustee
it is entitled to designate and appoint a successor Trustee as
provided in the second paragraph of Section 3.3.
Section 3.6. Bond or Surety.
No Trustee, whether an original, substitute. or
successor trustee. shall be obliged to give any bond or surety or
other security for the performance of any of his or her duties
hereunder, provided, however, that the Sponsor prior to the Operating
Event or thereafter. that Unit Owners entitled to more than fifty per
cent (50%) of the beneficial interest of this Trust may at any time
by instrument in writing signed by them and delivered to the Trustee
or Trustees affected require that any one or more of the Trustees
shall give bond in such amount and with such sureties as shall be
specified in such instrument. All expenses incident to any such bond
shall be charged as a common expense of the Condominium.
Section 3.7. Compensation of Trustees.
With the approval of a majority trustees, each
Trustee may receive such reasonable remuneration for his services and
also additional reasonable remuneration for extraordinary or unusual
services. legal or otherwise. rendered by him or her in connection
with the trust hereof, all as shall be from time to time fixed and
determined by the Trustee(s). and such remuneration shall be a common
expense of the Condominium. No compensation to Trustee(s) may be
voted by the Trustee(s) with respect to the period before the
Operating Event. ‘
Section 3.8. No Personal Liability.
No Trustee shall under any circumstances or n
any event e held liable or account able out of his personal assets or
be deprived of compensation. if any, by reason of any action taken,
suffered or omitted in good fair 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 or adverse
interest or by reason of anything except his own personal and willful
malfeasance and defaults.
Section 3.9. Trustees May Deal
With Condominium.
No Trustee shall be disqualified by His office
from contracting or dealing with the Trustee(s) or with one or more
Unit Owners (whether directly or indirectly because of his interest
individually or the Trustees' interest or any Unit Owner‘s interest
in any corporation. firm. trust or other organization connected with
such contracting or dealing or because 0 any other reason). as
Vendor. purchaser or otherwise, nor shall any such dealing. contract
or arrangement entered into in respect to this Trust in which any
Trustee shall be interested in any we be avoided nor shall any
Trustee so dealing or contracting or sing so interested be liable to
account for any profit realized by such dealing. contract or
arrangement by reason of such Trustee's holding office A? the
fiduciary relation hereby established. provided the Trustee shall act
in good faith and shall disclose the nature of
his interest before entering into the dealing.
contract or arrangement I: .
Section 3.10. Indemnity of Trustees.
The Trustee(s) and each of them shall he sat t c
to n emn ty oth out of the Trust Property end by the Unit Owners
against any liability incurred
y them or any of them in the execution hereof.
including without limiting the generality of the foregoing,
liabilities in contract and in tort and liabilities for damages,
penalties and fines. all as provided in Chapter 183A. and, acting y
majority, may purchase such insurance against such liability ity as
they shall determine is reasonable and necessary, the cost of such
insurance to be a common ex ones of the Condominium. Each Unit Owner
shall be personally lie liable for all sums lawfully assessed for his
share of the common expenses of the Condominium and for his
proportionate share of any claims involving the Trust property in
excess thereof, all as provided in Sections 6 and 13 of Chapter 183A.
Nothing in this paragraph shall be deemed to limit in any respect the
powers granted to the Trustees in this Declaration of Trust.
ARTICLE IV Beneficiaries and the Beneficial
Interest in the Trust
Section 4.1. Beneficial Interest.
The beneficiaries of this Trust shall be the
owners 01 Units in the Condominium as they may be from time to time.
The beneficial interest in this Trust shall be divided among the Unit
Owners in the percentage of undivided beneficial interest
appertaining to the Units of the Condominium as set forth in Exhibit
"A" annexed hereto and incorporated herein.
Section 4.2. Each Unit to Vote by One Person.
The beneficial interest 0 cos n t o t e on om n
um shall be held and exercised as a Unit and shall not be divided
among several owners of any such Unit. To that and, whenever any Unit
is owned of record by more than one person. the several Owners of
such Unit shall (a) determine and designate nate which one of such
owners shall be authorized and entitled ed to cast votes, execute
instruments and otherwise exercise the rights appertaining to such
Unit hereunder. and (b) notify the Trustees of such designation by a
notice in writing signed by all of the record owners of such Unit.
Any such designation shall take effect upon receipt by the Trustees
and may be changed at an time and from time to time by notice as
aforesaid. In the a abscence of any such notice of designation. the
Trustees may designate any one such owner for such purposes.
ARTICLE V By-Laws
The provisions of this Article V shall
constitute the By-Laws of this Trust the "By-Laws") and the
organization of Unit Owners established hereby:
Section 5.1 Powers of the Trustees.
The Trustee(s) shall have all powers and duties
necessary for the administration of the offices of the Condominium
and may do all things subject to and in accordance with all
applicable provisions
of said Che chapter 183A and the Master Deed,
and, without limiting the general generality of the foregoing the
Trustee(s) may, with full power: and uncontrolled discretion. at any
time and from time to time without the necessity of obtaining any
approval or license of
any court for leave to do so:
(i) to retain the
Trust property. or any part or parts thereof, in the same form or
forms of investment in which received or acquired by them so far and
so long as they shall think fit, without liability for any loss
resulting therefrom;
(ii) to sell.
assign. convey. transfer. exchange and otherwise deal with or dispose
of the Trust property. free and discharge of any and all trusts. at
public or private sale, to any person or persons for cash or on
credit, and in such manner and on such restrictions. stipulations.
agreements and reservations as they shall deem proper, including the
power to take back mortgages to secure the whole or any of the-Trust
property sold or transferred by them, and-execute and deliver any
deed or other instrument in connection with the foregoing;
(iii) to purchase or
otherwise acquire title to. and rent. lease or hire from others for
terms which may extend beyond the termination of this Trust any
property or rights to property. real or personal. and own. manage,
use and hold such property and such rights;
(iv) to borrow or in
any other manner raise such sum or sums of money or other property as
they shall deem advisable in any manner and on any terms, and
evidence the same by notes, bonds. securities or other evidences of
indebtedness. which may mature at a time or times, even beyond the
possible duration of this Trust. and execute and deliver any
mortgage, pledge
or other instrument
to secure any such borrowing;
(v) to enter into
any arrangement for the use or occupation of the Trust property, or
any part or parts thereof, including. without thereby limiting the
generality of the foregoing, leases, subleases, easement. licenses or
concessions, upon such terms and conditions and with such
stipulations and agreements as they shall deem desirable. even if the
same extend beyond the possible duration of this Trust;
(vi) to invest and
reinvest the Trust property. or any part or parts thereof. and from
time to time. as often as they shall see fit. change investments,
including investment in all types of securities and other property.
of whatsoever nature and however denominated, all to such extent as
to them shall seem proper. and without liability for loss even though
such property or such investments shall be of a character or in an
amount not customarily considered proper for the investment of trust
funds or which does or may not produce income;
(vii) to incur such
liabilities. obligations and expenses and pay from the principal or
the income of t e Trust property in their hands all such sums as they
shall deem necessary or proper for the furtherance of the purposes of
this Trust
(viii) to determine
whether receipt by them constitutes principal or income or surplus
and allocate between principal and income and designate as capital or
surplus any of the funds of the Trust;
(ix) to vote in such
manner as they shall think fit any or all shares in any corporation
or trust which shall be held as Trust property. and for that purpose
give proxies to any person, persons or to one or more of their n er.
vote. waive any notice or otherwise act in respect of any such
shares;
(x) to deposit any
funds of the Trust in an bank or trust company. and delegate to any
one or more of t their number or to any ot or person or persons. the
power to deposit. withdraw and draw checks on any funds of the Trust;
(xi) to maintain
such offices and other places of business as they shall deem
necessary or proper and engage in business in Massachusetts or
elsewhere;
(xii) to employ.
appoint and remove such agents. managers. officers. brokers. en
engineers, architects. employees. servants, assistants and counsel
(which counsel may be a firm of which one or more of the Trustees are
members) as they shall deem proper for the purchase. sale or
management of the Trust property. or any part or parts thereof. or
for conducting the business of the Trust, and may define their
respective duties and fix and pay their compensation. and the
Trustee(s) shall not be answerable for the acts and defaults of any
such person. The Trustees may delegate to any such agent. manager.
officer, board. broker. engineer, architect. employee. servant.
assistant or counsel any or all of their powers (including
discretionary powers, except that the owner to join in amending,
altering, adding to. terminating or cancling ing this Declaration of
Trust and the trust hereby created shall not be delegated) all for
such times and purposes as they shall deem proper. Without hereby
limiting the generality of the foregoing, the Trustees may designate
from their number a chairman. a Treasurer, a Secretary, and such
other officers as they deem fit. and may from time to time designate
one or more of their own number to be the Managing Trustee or
Managing Trustees for the management and administration of the Trust
property and the business of the Trust. or any part or parts t ereo 5
.
(xiii) to improve
any property owned by the Trust;
(xiv) to manage.
maintain. repair. restore and improve common areas and facilities.
and when they shall deem necessary. the Un to;
(xv) to determine
the common expenses required for the affairs of the Condominium;
(xvi) to collect the
common expenses from the Unit Owners;
(xvii) to adopt and
amend rules and regulations covering the details of the operation and
use of the common areas and facilities;
(xviii) to obtain
insurance covering the Condominium (including the common areas and
facilities and the Units);
(xix) to enforce
obligations of the Unit Owners and "" have the power to
levy fines against the Unit Owners for violations of reasonable rules
and re regulations established by the Trustees to govern the conduct
0 the Unit Owners. No fine may be levied for more than $10.00 for any
one violation. but for each day a violation continues after notice,
it shall be con— sidered a separate violation. Collection of fines
may be enforced against the Unit Owner or Unit Owners involved as if
the fines were common charges owed by the particular Unit Owner or
Unit Owners. In the case of persistent violation of the rules en
regulations by a Unit Owner, the Trustees shall have the power to
require such Unit Owner to post a bond to secure adherence to the
rules and regulations;
(xx) generally. in
all matters not herein otherwise specified, control and do each and
every thing necessary, suitable. convenient, or proper for the
accomplishment of any of the purposes of the Trust or incidental to
the powers herein or in said Chapter 183A. manage and dispose of the
Trust property as if the Trustees were the absolute owners thereof
and to do any and all acts. including the execution of any
instruments, which by their performance thereof shall be shown to be
in their judgment for the best interest of the Unit Owners.
Section 5.2 Maintenance and Repair
of Units.
The Unit Owners shall be responsible for the
proper maintenance and repair of their res respective Units and the
maintenance. repair and replacement of utility ty fixtures therein
serving¥ the same, including, without limitation. interior finish
walls s, ceilings. and floors; windows, and interior window trim;
doors; door frames and interior door trim; plumbing and sanitary
waste fixtures and fixtures for water and other utilities: electrical
fixtures and outlets; and all wires, pi as. drains and conduits for
water, sewerage, electric power and 11 t, telephone and any other
utility services which are contains in and serve such Unit. If the
Trustees shall at any time in their reasonable judgment determine
that the interior of any Unit is in such need of maintenance or
repair that the market value of one or more other Units is being
substantially and adversely affected or that the condition of a Unit
or fixture furnishings, facility or equipment therein is hazardous to
any Unit or the occupants thereof. the Trustees shell in writing
request the Unit Owner to perform the needed maintenance. repair or
replacement or to correct the hazardous condition. and in case such
work shall not have been commenced within fifteen (15) days (or such
reasonable shorter period in case of emergency as the Trustees shall
determine) of such request and thereafter diligently brought to
completion. the Trustees shall be entitled to have the work performed
for the account of such Unit Owner and to enter upon and have access
to such Unit for that purpose. The reasonable cost of such work shall
constitute a lein u on such Unit and the Unit Owner shall be
personally liable t therefor.
Repair of uninsured casualty loss or damage to
units caused by events in or condition of common areas and facilities
may. in the Trustee’s sole discretion. but
need not be, paid from cannon funds.
Section 5.3. Maintenance Repair
and Replacement of Common Areas and Facilities- Assessment of Common
Ex expenses Therefor.
The Trustees shall he responsible for the proper
maintenance
repair and replacement of the common areas and
facilities of the Condominium. which may be done through the managing
agent. as hereinafter provided, and any two Trustees or the managing
agent or any ot are who may be so designated by the Trustees ma
approve payment of vouchers for such work. The expenses of such
maintenance. repair and replacement shall be assessed to the Unit
Owners as common expenses of the Condominium at such times and in
such amounts as provided in Section 5.4.
Section 5.4. Common Expense Funds.
Section 5.4.1. Reserve Funds.
The Unit Owners shall be liable for common
expenses and. subject to the Trustee's judgment as to reserve and
contingent liability funds stated below. shall be entitled to surplus
accumulations (common profits) if any. of the Condominium in
proportion to their beneficial interest in the Trust. The Trustees
may from time to time distribute surplus accumulations. if any, among
the Unit Owners in such proportions. The Trustees may. to the extent
they deem advisable, set aside common funds for reserve or contingent
liabilities, and may use the funds so set aside for reduction of
indebtedness or at er lawful capital purpose, or. subject to the
provisions of the following Sections 5.4.2 and S.é.3. for repair.
rebuilding or restoration of the Trust property or for the
improvements thereto. and the funds so set aside shall not be deemed
to be common profits available for distribution.
Section 5.4.2. Estimates of Common Expenses
and Assessments.
At least thirty (30) days prior to the
commencement of each fiscal year of this Trust. the Trustee(s) shall
estimate the common expenses expected to be incurred during the next
fiscal yea together with a reasonable provision for contingencies and
reserves. and after taking into account any undistributed surplus
accumulations from prior years. shall determine the assessment to be
made for the next fiscal year. The Trustees shall promptly render
statements to the Unit Owners for their respective shares of such
assessment, according to their beneficial interest in the common
areas and facilities and such statements shall, unless otherwise
provided therein, be due and payable within thirty (30) days'after
the same are rendered. In the event an annual assessment is not made
as above required. an assessment shall be presumed to have been made
in the amount of the last prior assessment
In the event that the Trustee(e) 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 Trustee(s) likely to be incurred. the Trustee(s) shall make a
supplemental assessment or assessments and render statements therefor
in the manner aforesaid, and such statements shall be payable and
take effect as aforesaid. The Trustees may in their discretion
provide for payments of statements in monthly or other installments.
The amount of each such statement shall e a personal liability of
each Unit Owner (jointly and severally among the owners of each
Unit). and, if not paid when due, or upon the expiration of such
grace period as the Trustees may (but need not) designate, shall
carry a late charge in such amount or at such rate (which amount or
rate need not be in proportion to the beneficial interest in this
Trust) as the Trustees shall determine and. together with any such
late amount or charge and attorneys' fees for collection as
hereinafter provided, shall constitute a lien on the Unit pursuant to
the provisions of Section 6 of Chapter 183A. Each Unit Owner by
acceptance of a Unit Deed. agrees to pay all costs and expenses.
including reasonable attorneys‘ fees. incurred by the Trustees in
collection of said assessments for common expenses and enforcement of
said lien.
n9-Section 5.4.3 Ag plication of Common
funds"$ie'iiusé323 shall expend common fun a on y or t e
purposes permitted by this Trust and by Chapter 183A.”"
Section 5.4.4. Notice of Default to
Mortgagees.
Upon written request addressed to the Trustee(s)
by first mortgagee of any Unit, the Trustee(s) shall notify such
mortgagee of any default by the mortgagor of such Unit in the
performance of the
mortgagor‘a obligations under the Master Deed
and this Declaration of Trust.
Section 5.5. Rebuilding and Restoration
Improvements.
Section 5.5.1. Determination of Scope of
Loss.
In the event of any casualty loss to the Trust
property, the Trustee(s) shall determine in their reasonable
discretion whether or not such loss exceeds ten percent (10%) of the
value of the Condominium immediately pr or to the casualty. and shall
notify all Unit Owners of such determination. If such loss as so
determined does not exceed ten per cent of such value. the Trustee(s)
shall proceed with the necessary repairs. rebuilding or restoration
in the manner provided in paragraph (a) of Section 17 of Chapter
183A. If such loss as so determined exceeds ten per cent of such
value. the Trustee(s) shall forthwith submit to all Unit Owners (a) a
form of a agreement (which may be in several counterparts) among the
Unit owners authorizing the Trustee(s) to proceed with the necessary
repair, rebuilding or restoration. and (b) a copy of the provisions
of Section 17: and the Trustee(s) shall thereafter proceed in
accordance with, and take such further action as they may in their
discretion deem advisable in
order to implement the provisions of paragraph
(b) of said Section 17.
Section 5.5.2. Submission to Unit Owners of
proposed improvements.
If and whenever the Trustees she propose to make
any Improvement to the common areas and facilities of the
Condominium, or shall be requested in writing by the Unit Owners
holding twenty-five per cent or more of the beneficial interest in
this Trust to make any such improvement. the Trustee(s) shall submit
to all unit Owners (a) a form of agreement (which may be in several
counterparts) specifying the improvement or improvement proposed to
be made and the estimated cost thereof, and authorizing the
Trustee(s) to proceed to make the same, and (b) a copy of the
provisions of Section 18 of Chapter 183A. Upon the receipt by the
Trustee(s) of such agreement signed b the Unit Owners holding
seventy-five percent or more 0 the beneficial interest or the
expiration of ninety days after such agreement was first submitted to
the Unit Owners. whichever shall first occur, the Trustee(s) shall
notify all Unit Owners of the aggregate percents of beneficial
interest hold by Unit Owners who have then signed such agreement. If
such percentage exceeds seventy-five percent the Trustees shall
proceed to make the improvement or improvements specified in such
agreement and, in accordance with Section 18 of Chapter 183A, shall
charge the cost of improvement to all the Unit Owners. The agreement
so circulated may also provide for separate agreement by the Unit
Owners that if more than fifty percent. but less than seventy-five
percent of the beneficial interest so consent, the Trustee(s) shall
proceed to
make such 1 improvement or improvements and
shell charge the same to the Unit owners so consenting.
Section 5.5.3. Arbitration of disputed
Trustee Action.
(Notwithstanding anything In Sections 5.3.; and
5.5.) (a) In the event that any Unit Owner(s) by written notice to
the Trustee(s) shall dissent from any determination of the Trustee(s)
with respect to the value of the Condominium or any other
determination or action of the Trustee(s) under this Section 5.5. and
days after such notice then either the
Trustee(s) or the dissenting Unit Owner(s)
shall submit the matter to arbitration. For that
purpose, one arbitrator shall be designated by the Trustee(s). one by
the dissenting Unit Owner(s) and a third by the two arbitrators so
designated. Such arbitration shall be conducted in see* with the
rules and procedures of the American Arbitration Association and
shall be binding upon all parties. The Trustees's decision that work
constitutes a repair, rebuilding or restoration other than an
improvement shall be conclusive unless shown to have been - made in
bad faith. The Trustee(s) shall in no event be obliged to proceed
with any repair, rebuilding or restoration or any improvement, unless
and until they have received funds in an amount equal to the
Trustees' estimate of all costs thereof.
Section 5.6 Adminiatracive Rules and Regulations.
The trustee(s) may from time to time adopt, amend, rescind admninistrative rules and regulations governing the operation and use of the common areas and facilities, and such restrictions on and requirements respecting the use and maintenance of the Units and the use of the common areas and facilities as are consistent with the master deed and are designatd to prevent unreasonable interference with the use by the unit owers of their units and of the common areas and facilities. . Trustee does hereby adopt the initial Rules and Regulations annexed to this Declaration of Trust. The Trustee(a) may enforce the Rules and Regulations by imposition of fines previously established or in any other manner permitted by law. including without limitation by court action for injunctive relief and damages.
Section 5.7. Managing Agent.
The Trustee(s) may. at their discretion. appoint
a manager or managing agent to administer the management and
operation of the Condominium. including the |incurring of expenses.
and making of disbursements and the ‘keeping of accounts, as the
Trustee(s) shall from time to time -determine. The Trustee(s) or such
manager or managing agent may appoint. employ and remove such
additional agents, attorneys.
accountants or employees as the Trustee(s) shall
determine.
Section 5.8. Insurance.
Section 5.8.1
The Trustee(s) shall obtain and maintain, [to
the extent available at reasonable cost. master policies of casualty
and physical damage insurance for the benefit and protection of the
Trustee(s), and all of the Unit Owners, naming as the named insureds.
and with loss proceeds payable to the Trustee(s) hereunder. or one or
more of the Trustee(s) hereunder designated by them, as Insurance
Trustee(s) for all of the Unit Owners collectively of the Condominium
and their respective mortgagees, as their interests may appear,
pursuant to such condominium form of insurance as may from time to
time be \customarily used in Massachusetts. such insurance to cover
the ‘buildings and all other insurable improvements forming part of
the common areas and facilities, including all service machinery
apparatus. equipment, and installations in the common areas and
facilities, and including also all such portions and elements of the
Units for which the Unit Owners are responsible, but not including
the furniture. furnishings, or other personal property of the Unit
Owners. Such insurance shall. insofar as practicable, be maintained
in an amount not less than 100% of the replacement value of the
insured property for insurance purposes, as determined by the
Trustee(s) (who shall review such value at least as often as
annually), and shall insure against (a) loss or damage by fire and
other hazards covered by the standard extended ;coverage endorsement,
and (b) such other hazards or risks as the Trustee(s) from time to
time in their discretion shall determine to be appropriate, including
but not limited to vandalism. malicious mischief, windstorm and water
damage, federal flood hazards, so-called, and boiler and machinery e
lesion or damage. Such insurance may have a deductible amount to be
determined from time to time by the Trustee(s).
Section 5.8.2.
All policies of casualty or physical damage insurance shall, insofar as practicable Provide:
(a) that such policies may not be canceled, terminated, or substantially modified as to amount of coverage or risks covered without at least thirty days' written notice to the insureds;
(b) for waiver of subrogation as to any claims (exceptclaims involving arson or fraud against the Trust. the Trustee(s), the manager, agents. employees. the Unit Owners and their respective ‘employees, agents, and guests;
(c) for waivers of any defense
based upon the conduct of any insured;
(d) in substance and effect
that the insurer shall not be entitled to contribution as against any
casualty or property insurance which may be purchased separately by
Unit Owners; and
(e) that such insurance shall not be prejudiced:
(i) by any act or neglect of any owners or occupants of the Units, when
such act or neglect is not within the control of the Trustee(s)(or
Owners) collectively. or
(ii) failure of the Trustee(s) (or
Owners) collectively to co 1y wi 'any warranty or condition with re
regard to any portion of t e .premises over which the Trustee
shall be taken without a meeting. at least three days' written notice
thereof to the Unit Owner responsible for said pet, and the
opportunity at the Trustees' meeting for the Unit Owner responsible
for the pet to be heard.
(10). Storage.
There shall be no parking
of baby carriages or playpens, bicycles, wagons, toys, vehicles benches, or chairs on any part of the Common Elements. All of
the furnishings, items of personal property, effects, and other items
of Unit Owner and persons c aiming by, through or under said Owner
may be kept and stored at the sole risk and hazard of said Owner, and
if the whole or any part thereof shall be destroyed or damaged by
fire, water or otherwise, or by the leaking or bursting of water
pipes. steam pipes, or other pipes. by theft or from other cause, no
part of said loss or damage in excess of the amounts. if any. covered
by its insurance policies. is to be charged to or be borne b the
Condominium Trust, except that the Condominium Trust shall in no
event be exonerated or held harmless from liability caused by its
negligence.
(11). Repair and Condition.
Each Unit Owner shall keep his Unit and the balcony appurtenant thereto. if
applicable. in a good state of preservation and cleanliness, and shall
not sweep or throw or permit to be swept or thrown therefrom. or from the doors or windows thereof, any dirt or other substance.
(12). Equipment Compliance.
All radio. television or other electrical equipment of any Find or
nature installed by Unit Owners or used in each Unit shall fully
comply with all rules. regulations. requirements or recommendations
of the Board of Fire underwriters erwriters. or similar board, and
the public authorities having jurisdiction. and the Unit Owner alone
shall be liable for any damage or injury caused by any radio,
television or other electrical equipment in such Unit.
(13). Flammable Materials etc.
No Unit
Owner or any of his agents. servants. employees, licensees. or
visitors shall. at any time. bring into or keep in his Unit or any
portion of the Common Elements or the Buildings any gasoline.
kerosene or other flammable. combustible or explosive fluid,
material. chemical or substance, except such lighting, cleaning and
other fluids. materials. chemicals and substances as are customarily
incidental to residential use. '
(14) Real Estate Taxes.
For so long as
the Condominium is assessed as s single pro property rather than
separate Condominium Units, Unit Owners will be billed by the
Trustee(s) for their respective portions thereof (each Condominium
Unit's common area percentage. including the common area percentage
applicable to additional parking rights acquired. of the total tax
bill) during each October and April, which bill shall enclose a copy
of the tax bill issued by the Town of Amherst. Each Unit Owner will
forward payment of his percentage interest in the total tax bill to
the Trustee(s) by check made payable to the Town of Amherst no later
than ten (10) days prior to the date on which payment may be made
without incurring a penalty or interest thereon. Late payments b a
Unit Owner must be made payable as directed by the Trustee(s . and
will include interest and penalties as charged by the Town of Amherst
for late payment. to ether with costs 0 collection therefor incurred
by the Trustee(s . including reasonable attorney's fees. If taxes are
collected by holders of mortgages on Condominium Units. each Unit
shall be responsible forugauging the mortgage holders to forward
payment as above rsq re . -
(15).
Amendments hereto may be made by
JEFFREY AHMERST MANOR CONDOMINIUM TRUST in accordance with the
provisions of M.G.L. Ch. 183A. as amended.
JEFFERY AMHERST MANOR CONDOMINIUM TRUST
________________________________
Miles A Seaver , Trustee
Feb. 17, 1981 at 2 o'clock & 22mins. P.M. Rec'd, Ent'd & Exam'd.