Cotuit School - Town Retained Parcel CR DWA clean
Grantor: TOWN OF BARNSTABLE
Grantee: Cotuit Fire District Water Commissioners
Property Address: 140 Old Oyster Road, Cotuit, MA
Grantor’s Title: Book 923 Page 150 in Barnstable County Registry of Deeds
CONSERVATION RESTRICTION
TOWN OF BARNSTABLE, a Massachusetts municipal corporation organized under a charter adopted pursuant to Mass. Const. Amend. Art. 89 § 3 on April 11, 1989 with a principal place of business
at Town Hall, 367 Main Street, Hyannis, Barnstable County, Massachusetts, 02601-3907, acting by and through a vote of its Town Council, at a duly called meeting held on _______ 2022,
an attested copy of which vote is attached hereto as Exhibit C, its successors and assigns holding any interest in the Premises as hereinafter defined, (“Grantor”), for nominal consideration
paid, as a gift, by the COTUIT FIRE DISTRICT, a Massachusetts municipal corporation duly organized pursuant to Chapter 328 of the Acts of 1926, with a principal place of business at
64 High Street, Cotuit, Massachusetts 02635, acting by and through its Board of Water Commissioners, (“District”), pursuant to authority granted by vote of the District on Article ___
of the Cotuit Fire District Special Meeting held on _____, 2022, an attested copy of which vote is attached hereto as Exhibit D,
GRANTS TO THE DISTRICT (“Grantee”) and to its successors and permitted assigns, with quitclaim covenants, a Conservation Restriction, pursuant to Sections, 31, 32, and 33 of Chapter
184 of the Massachusetts General Laws, to be held and exercised in perpetuity as provided in section M exclusively for conservation, recreation, aquifer recharge area and watershed
protection purposes, including under Mass. Const. Amend. Art. 97, the following described perpetual CONSERVATION RESTRICTION (“Restriction”), on a parcel of unregistered land totaling
approximately _____[5.5+] acres, located at 140 Old Oyster Road in the Village of Cotuit, Town of Barnstable, County of Barnstable, Commonwealth of Massachusetts, said parcel being described
in Exhibit A and shown on Exhibit B both of which are attached hereto, said parcel hereinafter referred to as the “Premises.” The Grantor and Grantee, their successors and assigns,
are bound by and subject to the terms and conditions of this Restriction.
The conveyance of this Restriction is made pursuant to the vote of the Barnstable Town Council, at a duly called meeting held on _________2022, on Agenda Item 2022-_____, to authorize
the Town to grant this Restriction on the Premises in compliance with the provisions set forth herein. A copy of the Town Council Ordinance is attached hereto as Exhibit C.
The District acquires this Restriction subject to the approval of the Department of Environmental Protection (“DEP”) pursuant to Massachusetts General Laws Chapter 40, Section 41 of
the District’s monitoring and enforcement powers as provided in section M owing to the fact that the Premises is located within the Zone II to Well Station #3 of the District. The Town
and the District also acquire this Restriction subject to the approval of the Secretary of Energy and Environmental Affairs (“EEA”) pursuant to Massachusetts General Laws Chapter 184,
Section 32 over the entire premises.
DEP approval is required before the Premises located within the DEP-approved Zone II can be transferred to a different ownership or control, or before the Premises located within the
Zone II can be changed to a different use.
Purposes: This Restriction is defined in and authorized by Sections 31-33 of Chapter 184 of the Massachusetts General Laws. The purpose of this Restriction is to assure that, while allowing
public access for passive and active recreational use and enjoyment of the open space and natural resources and permitting the other uses described in Paragraph B herein, and to the
extent permitted by applicable law, the Premises will be preserved for conservation, aquifer, recharge area and watershed protection purposes, and be maintained in perpetuity, substantially
in a scenic and open condition and to prevent any use of the Premises that would materially impair or interfere with the conservation values and aquifer recharge area and watershed
protection values thereof. This Restriction will yield a significant public benefit because the Premises’ protection will advance the following policies and objectives:
WHEREAS, the Drinking Water Program of the Massachusetts Department of Environmental Protection (“DEP”) approves Zone II areas of contribution, wellhead protection areas determined by
hydro-geologic modeling that are important for protecting the recharge area around aquifer, recharge area and groundwater resources; and,
WHEREAS, in 1999, the Cape Cod Commission completed its Priority Land Acquisition Assessment Project (PLAAP) for the Massachusetts Department of Environmental Protection under a Section
604(b) grant. The PLAAP in effect serves as the water assets plan for the Cotuit Fire District, and, in fact, probably is more specific than a typical community assets plan. This PLAAP
report refined a Capewide inventory conducted by the U.S. Geological Survey in 1994 that had identified only five percent of the Cape’s land mass as potentially suitable for future wellfield
creation; and,
WHEREAS, in July 1991 the Barnstable Assembly of Delegates, pursuant to the Cape Cod Commission Act (Chapter 716 of the Acts of 1989), adopted a Regional Policy Plan, amended in 1996,
2002 and 2009, which provided, inter alia (references are to the 2009 Plan):
Wildlife and Plant Habitat Goal to “prevent loss or degradation of critical wildlife and plant habitat…and to maintain existing populations and species diversity” (WPH1); stating that
“renewed commitment to protect the most ecologically sensitive undeveloped lands through land acquisition and other permanent conservation measures is also warranted;”
Open Space and Recreation Goal to “preserve and enhance the availability of open space that provides wildlife habitat…and protects the region’s natural resources and character” (OS1)
with a recommended Town Action of working with “local land conservation organizations to identify, acquire by fee simple or conservation restriction, and manage open space to meet projected
community needs.
WHEREAS, in 2000, the Town of Barnstable voted to establish a Resource Protection Overlay District to reduce nitrogen loading to groundwater, surface water and coastal embayments to
prevent deterioration of water quality, destruction of bottom habitat, loss of fin fish and shell fish habitat, and other adverse environmental and economic impacts; and,
WHEREAS, the Town of Barnstable adopted wellhead protection regulations, mapping the entire Town as falling under one of three Groundwater Protection Overlay Districts, shown on the
Town’s Official Zoning Map: the Aquifer Protection (AP) District is the entire town because it is part of the Cape Cod Sole Source Aquifer; the Groundwater Protection (GP) District is
similar to the State’s Zone II, but future proven well sites were also included so the area of protection is larger than the Zone II; and the Wellhead Protection (WP) District, which
is within the five-year time of travel, and is a subset within the GP District; and,
WHEREAS, in 2008, the Town of Barnstable established a Saltwater Estuary Protection Overlay District to mitigate the adverse impact to saltwater, nitrogen-impaired estuaries from the
subsurface discharge of sewage effluent; and,
Consistency with Clearly Delineated Town of Barnstable Conservation Policy. Protection of the Premises will further the Town of Barnstable’s documented goals regarding conservation
land. The Town outlined its conservation goals in its Open Space and Recreational Plan (1984, amended 1987, 1998, 2005, 2010, 2018), identifying goals, policies, and actions to guide
conservation efforts, among them the goal of preserving “quality open spaces throughout the Town which protect and enhance its visual heritage.” Additional objectives include (references
are to the 2018 Plan):
1) "Preservation of open space for protection of drinking water resources, and for protection of other natural, historic and scenic resources is a community-wide priority; and 2) Protection
of open space should continue to be an integral component of the Town's efforts." (p. 6)
To achieve this vision, the Plan sets several goals for the town including: 1) "To protect and maintain the maximum amount of open space to enhance environmental protection, recreational
opportunities and community character, and 2) “Plan, coordinate and execute open space protection measures that complement community efforts to protect water supply, protect fresh and
marine surface waters, [and] preserve historic, scenic and cultural resources..." (pp. 10-11).
Additionally, the Barnstable Town Council’s Strategic Plan adopted on November 19, 2020 identified the goal to conserve and protect significant natural and historic resources for visual
quality, outdoor recreation, public access, wildlife habitat, and cultural history.
Moreover, in 1981, the Town of Barnstable adopted a Conservation Restriction Program consisting of policies and guidelines, in particular an Open Space Policy, approved by the Board
of Selectmen, Assessors, and Conservation Commission, which encourages the use of conservation restrictions in perpetuity to protect natural resources in accordance with the purposes
of the Open Space and Recreation Plan, and which further specified that purposes of a conservation restriction could include the following:
preserve scenic view;
protect groundwater quality for drinking purposes;
preserve open space;
to protect a trail;
preserve important natural habitats of fish, wildlife or plants; and,
limit or prevent construction on land of natural resource value.
I. Consistency with Clearly Delineated Federal Conservation Policy. Protection of the Premises meets the definition of “conservation purposes” as defined in 26 CFR 1.170A-14(d)(1), because
its conservation would: protect the land for outdoor recreation by the general public; preserve an existing public water supply; reserve the land for education regarding the natural
world; protect wildlife habitats; and it would contribute to the preservation of open space because it is proximate to several other parcels already conserved.
J. Consistency with Clearly Delineated State Conservation Policy. The Premises possesses significant open space, natural, aesthetic, ecological, plant and wildlife habitat, soil and
water resource quality, watershed, and scenic values (collectively “conservation values”) of great importance to the Grantee and the people of Barnstable and the Commonwealth of Massachusetts.
WHEREAS, preservation of the Premises satisfies each of these enumerated objectives because the Premises:
consists of approximately 5 acres of cultivated playing fields and fringing woodland;
lies wholly within a DEP Zone II Area of Contribution to Cotuit Fire District Well #3;
was rated as a priority tract for acquisition or protection through the PLAAP work;
completely is within a Significant Natural Resources Area for wellhead protection and as potential aquifer, recharge area and watershed area, and is completely within a Resource Protection
Area of the Land Use Vision Map for the Town of Barnstable;
is completely within the Town of Barnstable Resource Protection Overlay District;
is partially within the Town of Barnstable Groundwater Protection and Wellhead Protection Overlay Districts;
is completely within the Town of Barnstable Saltwater Estuary Protection District;
abuts and connects with an existing greenbelt of open space owned by the Grantor and Grantee;
will continue to provide passive and active public recreation opportunities to complement the nearby active recreation at Lowell Park;
will protect the quality of the nearby marine Cotuit Bay Estuary;
will preserve the scenic character of the area off historic Main Street;
will be open to the public for conservation and recreation purposes; and,
is a substantial contributing element to the overall scenic and historic character of the area by being maintained predominantly in an open condition; and,
WHEREAS, accordingly, the Premises possess significant open, natural, and scenic values (collectively, "conservation values") of great importance to Grantees and the people of Barnstable
and the Commonwealth of Massachusetts; and,
WHEREAS, the Town of Barnstable has in recent years come under increasing pressure for development, and such development can destroy or otherwise severely impact the open character,
natural resources, and scenic beauty of the area; and,
WHEREAS, District consists of a body corporate that is qualified to hold restrictions in perpetuity; and,
NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions, and restrictions contained herein, Grantor and Grantee voluntarily agree that the CONSERVATION RESTRICTION
described herein is an appropriate means to achieve the community’s open space, aquifer, recharge area and watershed protection goals and objectives.
The terms of this Restriction are as follows:
II. PROHIBITED ACTIVITIES: In order to carry out the purposes set forth in Article I above, the Grantor covenants for itself and its legal representatives, mortgagees, successors and
assigns that the Premises will at all times be held, used and conveyed subject to and not in violation of this Restriction. The Grantor shall refrain from and will not permit any activity
which shall be inconsistent with the aforestated purposes of this Restriction or which materially impairs water quality, soil conservation, wildlife conservation, scenic landscape protection
or which is otherwise wasteful of the natural resources of the Premises.
Subject to the exceptions set forth in Article III below, prohibited activities shall include, but shall not be limited to, the following:
Construction or placing of any building, residential dwelling, mobile home, swimming pool, billboard, or other advertising display, landing strip or pad, roadway, asphalt or concrete
pavement, antenna, utility pole, tower, wind turbine, solar array, aboveground or underground storage tank, dog park or any other temporary or permanent structure or facility on, under
or above the Premises.
Placing, storing or dumping of equipment, mobile home, trailer, automotive vehicle or parts, soil, rock, sand, stumps, slash, refuse, trash, vehicle bodies or parts, rubbish, debris,
junk, waste, radioactive waste, or hazardous waste or other substance or material whatsoever.
Mining, excavation, dredging or removal of any loam, peat, gravel, soil, sand, rock or other mineral substance, or natural deposit from the Premises or otherwise making topographical
changes to the Premises.
Pollution, alteration, depletion, diversion, channelization, damming, draining, or extraction of surface water, natural water courses, marshes, potential or certified vernal pools, subsurface
water, or any other water bodies.
Removal, destruction or cutting of trees, grasses, shrubs or other natural vegetation, including cutting for firewood or commercial harvesting and lumbering activities.
Introduction of species of animals or plants that are not native to Barnstable County, as defined by current published lists of native species, including The Vascular Plants of Massachusetts:
A County Checklist, by Bruce A. Sorrie and Paul Somers, published by the Massachusetts Division of Fisheries and Wildlife Natural Heritage & Endangered Species Program (1999) or as amended
or contained in a similar professionally acceptable publication available in the future.
Use of motorized or power-driven vehicles of any kind, including without limitation snowmobiles, motorbikes or all-terrain vehicles.
Camping, hunting, owing to state safety setbacks, or trapping unless for a proven nuisance to wildlife.
Conveyance of a part or portion of the Premises alone or division or subdivision of the Premises or use or assignment of the dimensions, area or acreage of the Premises for purposes
of subdivision or development of unrestricted land whether or not such land is owned by the Grantor, its successors and assigns. (Conveyance of the Premises in its entirety shall be
permitted.)
Activities detrimental to drainage, flood control, water conservation, erosion control, soil conservation, or wildlife habitat.
The excavation of landscape features on the Premises with the intent of collecting or otherwise removing archaeological artifacts (prehistoric and/or historic) except by formal approval
of the Massachusetts Historic Commission (MHC) through submission, with the concurrence of the Grantee, of a project notification form (PNF) in accordance with Section 27C of Chapter
9 of the Massachusetts General Laws, and associated regulations, as amended.
Subdivision or conveyance of a part or portion of the Premises, it being intended to keep the Premises in single ownership.
No portion of the Premises may be used towards any building, septic system or other development requirements on any other parcel outside the Premises.
Any commercial, residential, industrial or other municipal uses.
Any other use of the Premises or activity which is inconsistent with the purpose of this Restriction or which would materially impair its conservation values, or which is prohibited
by federal, state or local law or regulation.
III. PERMITTED ACTIVITIES AND RESERVED RIGHTS: The Grantor reserves the right to conduct or permit the following activities on the Premises, but only if such uses and activities do not
materially impair the conservation values and are not inconsistent with the purposes of this Restriction:
Use, maintenance, expansion and replacement in situ of the existing passive and active recreational facilities on the Premises, including two (2) fenced and surfaced tennis/pickleball
courts; youth baseball field with backstop, dugouts, storage sheds and benches; and playing field, including unpaved parking areas along their periphery which may be expanded to support
the recreational activities with the permission of the Grantee ;
With Grantee's written approval, delivered by vote of the Board of Cotuit Water Commissioners, not to be unreasonably withheld, the installation, use and maintenance of new open-air
recreational facilities, including playground, fitness course and tot lot, basketball court, and the like, and new or redesigned walking trails in the forest.
Measures, such as the installation of fencing and signage, taken in order to prevent unauthorized vehicle entry and dumping, vandalism or other acts destructive to the Premises.
With the prior approval of the Grantee, measures taken in order to protect landform stability (i.e, to maintain a naturally occurring feature on the land’s surface, e.g., bank or hill
from erosion.)
The use of the Premises for passive recreational activities such as hiking, snowshoeing, cross-country skiing, nature study or research, and other like activities, including access by
motorized wheelchairs or other disabled assistance devices.
The maintenance and use of the existing paved way, and trails on the Premises substantially in their present condition, and with the prior approval of the Grantee, the relocation or
construction of new trails, provided that all applicable federal, state, regional and local approvals are obtained in advance, and that any relocated trails or new trails are no wider
than eight (8) feet.
The maintenance of turf without the use of chemical fertilizers, herbicides and pesticides consistent with the town of Barnstable’s Recreation turf policy, as updated from time to time,
and with the approval of the grantee for this location.
The erection and maintenance of signs identifying ownership of the Premises, the property boundaries, the Premises’ status as a conservation/recreation reservation, the restrictions
on the use of the Premises, the identity or location of trails, areas of interest, natural features or other characteristics of the Premises, or for providing other like information.
Minimal cutting or removal of trees, shrubs and other vegetation and planting of native trees, shrubs and other vegetation to maintain or improve the conservation and recreation values
protected by this Restriction; to prevent threat of injury or damage to persons or property; to prevent or mitigate pest infestation, blight or disease; to control, manage or eradicate
non-native or invasive species not native to the field or forest; or to improve or protect wildlife habitat.
Selective trimming and pruning of trees and brush necessary to preserve access to the existing power lines and power poles, for as long as the poles are installed and in use, on the
premises, is allowed as would be trimming around existing recreational fields, fences, tennis courts and parking areas. This is allowed only to the extent necessary to preserve these
improvements and activities.
The use of motorized vehicles (1) by the Grantor as reasonably necessary to carry out activities permitted under this Restriction, (2) for access by Grantee for purposes set forth in
Article VI, below, and (3) for access by police, fire, emergency, public works, or other governmental personnel carrying out their official duties. The use of motorized vehicles for
the purposes described herein shall be limited to the existing trails or those trails that may be approved and installed pursuant to Article III.D. Notwithstanding the foregoing, the
use of motorized vehicles for recreational purposes, such as dirt bikes, all-terrain vehicles, off-highway vehicles, and the like, is not permitted.
Archaeological investigations consisting of site inspections and subsurface excavations subject to and in accordance with an Archaeological Field Investigation Permit issued by the State
Archaeologist under G.L. c. 9, §26A, and associated regulations, and Grantee’s written approval in accordance with Article IV, below.
In accordance with a state-approved wastewater management plan, the right to construct, maintain and use one (1) sewage treatment pump station and associated utilities, but not to treat
or discharge any effluent on-site.
Such other non-prohibited activities or uses of the Premises may be permitted with the prior approval of the Grantee provided that the Grantee has made a finding, such finding to be
documented in writing and kept on file at the office of the Grantee, that such activities are consistent with the Reserved Rights, do not impair the conservation values and purposes
of this Conservation Restriction, and, where feasible, result in a net gain in conservation value of the Premises.
Notwithstanding the foregoing permitted activities, any proposed modifications to the landscape, including but not limited to the creation of trails, management of vegetation and wetland
resources, and installation of signage and educational kiosks, shall not be undertaken if they disturb, remove, damage or destroy archaeological resources or artifacts on the Premises.
The exercise of any right or obligation reserved by the Grantor under this Article III shall be in compliance with all applicable federal, state and local law. The inclusion of any reserved
right in this Article III requiring a permit from a public agency does not imply that the Grantee or the Commonwealth takes any position on whether such permit should be issued.
IV. NOTICE AND APPROVAL:
Whenever notice to or approval by Grantee is required under the provisions of this Restriction, Grantor shall notify Grantee in writing not less than sixty (60) days prior to the date
Grantor intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable and any other material aspect of the proposed activity
in sufficient detail to permit the Grantee to make an informed judgment as to its consistency with the purposes of this Restriction. Where Grantee's approval is required, Grantee shall
grant or withhold approval in writing within sixty (60) days of receipt of Grantor's request. Grantee's approval shall not be unreasonably withheld, but shall only be granted upon a
showing that the proposed activity shall not materially impair the purposes of this Restriction.
Failure of Grantee to respond in writing within sixty (60) days shall be deemed to constitute approval by the Grantee of the request as submitted, so long as the request sets forth the
provisions of this section relating to deemed approval after sixty (60) days in the notice, provided the requested activity is not expressly prohibited hereunder and the activity will
not materially impair the purposes of this Restriction. This Article IV.2 shall not apply to Article III. I. or Article III.J, in which cases failure of Grantee to respond in writing
within sixty (60) days shall be deemed to constitute denial by the Grantee of the request as submitted.
In the event the activity proposed is necessary to address an emergency situation, either to avert environmental degradation, ecological damage or risk to public health and safety, Grantee
shall respond forthwith.
V. LEGAL REMEDIES OF THE GRANTEE; WAIVER:
The rights hereby granted shall include the right to enforce this Restriction by appropriate legal proceedings including obtaining injunctive and other equitable relief against any violations,
including, without limitation, relief requiring restoration of the Premises to its condition prior to the time of the injury complained of, it being agreed that the Grantee may have
no adequate remedy at law, and shall be in addition to and not in limitation of any other rights and remedies available to the Grantee for the enforcement of this Restriction.
Notwithstanding the foregoing, Grantee agrees to provide written notice to Grantor of any violation of this Restriction and to cooperate for a reasonable period of time, not to exceed
sixty (60) days, to allow Grantor to remedy the violation, prior to resorting to legal or equitable means in resolving issues concerning alleged violations provided Grantor has ceased
objectionable actions and is making a good faith effort to remedy the violation and Grantee reasonably determines there is no ongoing diminution of the conservation values of the Restriction.
The Grantor and its successors and assigns shall each be liable under this section for any such violations of this Restriction as may exist during their respective periods of ownership
of the Premises. Any new owner may be held responsible for any continuing violations existing during his or her period of ownership.
By acceptance of this Restriction, the Grantee does not undertake any liability or obligation relating to the condition of the Premises pertaining to compliance with and including,
but not limited to, hazardous materials, zoning, environmental laws and regulations, or acts not caused by the Grantee or their agents.
If Grantee prevails in any action to enforce the terms of this Restriction, the Grantor or Grantor’s heirs, successors and assigns, as the case may be, shall reimburse the Grantee
for all reasonable costs and expenses, including reasonable attorney’s fees, incurred in enforcing this Restriction or in taking reasonable measures to remedy or abate any violation
thereof. If Grantor prevails in any action brought by Grantee to enforce the terms of this Restriction, the Grantee or its heirs, successors and assigns, as the case may be, shall, to
the extent allowed by law, reimburse the Grantor for all reasonable costs and expenses, including attorney’s fees, incurred in defending such action to enforce this Restriction, provided
the Grantee’s action is deemed by the court or by other competent authority to be unreasonable or arbitrary and capricious.
Enforcement of the terms of this Restriction shall be at the discretion of the Grantee. Any election or forbearance by the Grantee as to manner and timing of its right to enforce this
Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a waiver of such rights.
VI. GRANTEE'S RIGHT OF ACCESS; INSPECTION:
The Restriction hereby conveyed does not grant to the Grantee any right to enter upon the Premises except at reasonable times and in a reasonable manner for the following purposes:
To perform a survey of boundary lines;
To inspect the Premises to determine compliance within provisions of this Restriction;
To enter the Premises with or without the presence of an employee or employees of the Grantor for the purpose of taking any and all actions with respect to the Premises, at Grantor's
cost, as may be necessary or appropriate to remedy or abate or enforce any violation hereof provided that Grantee first give Grantor notice of the violation, and upon failure of the
Grantor to cure the violation within sixty (60) days of receiving said notice, Grantee then gives Grantor further written notice of its intention to enter the Premises to take such actions
at least fifteen (15) days following the date of such further written notice. The requirements for providing notice to the Grantor prior to entering the Premises shall not apply in
emergency situations where delayed action may result in irreparable harm to the Premises.
The Restriction hereby conveyed includes the grant of the right to the general public to enter upon the Premises, and to use the Premises and the trails thereon for the purposes set
forth in Article III above.
The Grantee may, with written approval from the Grantor, access the property to perform the following activities:
The pruning and trimming of trees or removal of fallen trees or branches that hinder or threaten the power lines or poles currently in place, so long as any damage caused by equipment
to the playing fields or surrounding area is repaired back to the pre entry standards.
The maintenance, repair, expansion, removal or replacement of the existing septic leach field located on the premises
The replacement, relocation or removal of power lines and power poles.
VII. ACTS BEYOND GRANTOR'S CONTROL: Nothing contained in this Restriction shall be construed to entitle the Grantee to bring any action against the Grantor for any injury or change in
the Premises resulting from causes beyond the Grantor's control, including but not limited to fire, flood, storm, natural erosion or from any prudent action taken by the Grantor under
emergency conditions to abate, prevent, or mitigate significant injury to or alteration of the Premises resulting from such natural causes. The parties to this Restriction agree that
in the event of damage to the Premises from acts beyond the Grantor's control, that if it desirable that the Premises be restored, the parties will cooperate in attempting to restore
the Premises, if feasible.
VIII. DURATION, BINDING EFFECT, RELEASE AND RECORDATION: The burdens of this Restriction shall run with the Premises IN PERPETUITY, and shall be enforceable against the Grantor and
the Grantor's successors and assigns holding any interest in the Premises. The Grantee is authorized to record or file any notices or instruments appropriate to assuring the perpetual
enforceability of this Restriction. Without limiting the foregoing, the Grantor and its successors and assigns agree themselves to execute any such instrument upon reasonable request.
IX. ASSIGNMENT: The benefits of this Restriction shall run to the Grantee, shall be in gross and shall not be assignable by the Grantee, their successors and assigns, except when all
of the following conditions are met:
The assignee is a "qualified organization" as defined in Section 170(h)(3) of the Internal Revenue Code of 1986, as amended, including, without limitation, a government entity;
The assignee is required to hold this Restriction and enforce its terms for conservation purposes;
The assignee is not an owner of the fee in the Premises;
The assignment complies with the provisions required by Article 97 of the amendments to the Constitution of the Commonwealth of Massachusetts, if applicable;
The Grantee shall notify the Grantor in writing at least thirty (30) days before assigning this Restriction and the Grantor shall have thirty (30) days from the date of such notice to
approve the assignment in writing, which approval shall not be unreasonably withheld. Failure of the Grantor to respond to the notice of assignment within thirty (30) days shall be deemed
approval thereof.
No such assignment of the right to enforce the Restriction shall diminish the rights or benefits held by the Grantee or its successors pursuant to this Restriction, and the Grantee shall
retain the equivalent right to enforce this Restriction.
X. ESTOPPEL CERTIFICATES: Upon request by the Grantor, the Grantee shall, within twenty (20) days, execute and deliver to the Grantor any document, including an estoppel certificate,
which certifies the Grantor's compliance with any obligation of the Grantor contained in this Restriction, and which otherwise evidences the status of this Restriction as may be requested
by the Grantor.
XI. SUBSEQUENT TRANSFERS: The Grantor agrees to incorporate the terms of this Restriction, in full or by reference, in any deed or other legal instrument by which Grantor conveys or
transfers any interest in all or a portion of the Premises, including, without limitation, a leasehold interest. The Grantor further agrees to notify the Grantee in writing at least
thirty (30) days before conveying or transferring the Premises, or any part thereof or interest therein, including a leasehold interest. Any transfer shall comply with Article 97 of
the amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
XII. TERMINATION OF RIGHTS AND OBLIGATIONS: Notwithstanding anything to the contrary contained herein, the rights and obligations under this Restriction of any party holding an interest
in the Premises, terminate upon transfer of that party's interest, except that liability for acts or omissions occurring prior to the transfer, and liability for the transfer itself
if the transfer is a violation of this Restriction, shall survive the transfer.
XIII. AMENDMENT: If circumstances arise under which an amendment to or modification of this Restriction would be appropriate, the Grantor and the Grantee may by mutual consent amend
this Restriction provided that no amendment shall be allowed that will affect the qualification of this Conservation Restriction or the status of Grantee under any applicable laws, including
Section 170(h) of the Internal Revenue Code of 1986, as amended, or Sections 31-33 of Chapter 184 of the General laws of Massachusetts. Any amendments to this Restriction shall occur
only in exceptional circumstances. The Grantee will consider amendments only to correct an error or oversight, to clarify an ambiguity, or where there is a net gain in conservation
values. All expenses of all parties in considering and/or implementing an amendment shall be borne by the persons or entity seeking the amendment. Any amendment shall be consistent
with the purposes of this Restriction, shall not affect its perpetual duration, shall be approved by the Secretary of Energy and Environmental Affairs and if applicable, shall comply
with the provisions of Article 97 of the Amendments to the Massachusetts Constitution, and any gifts, grants or funding requirements. Any amendment shall be recorded in the Barnstable
County Registry of Deeds.
XIV. EXTINGUISHMENT:
If circumstances arise in the future such as render the purpose of this Conservation Restriction impossible to accomplish, this restriction can only be terminated or extinguished, whether
in whole or in part, by a court of competent jurisdiction under applicable law after review and approval by the Massachusetts Secretary of Energy and Environmental Affairs. If any change
in conditions ever gives rise to extinguishment or other release of the Conservation Restriction under applicable law, then Grantee, on a subsequent sale, exchange, or involuntary conversion
of the Premises, shall be entitled to a portion of the proceeds in accordance with Article XV.B, subject, however, to any applicable law which expressly provides for a different disposition
of the proceeds and after complying with the terms of any gift, grant, or funding requirements. Grantee shall use its share of the proceeds in a manner consistent with the conservation
purpose set forth herein.
Proceeds. Grantor and Grantee agree that the conveyance of this Conservation Restriction gives rise to a real property right, immediately vested in the Grantee, with a fair market value
that is equal to five percent (5%) of the fair market value of the unrestricted Premises. Such proportionate value of the Grantee’s property right shall remain constant. Any proceeds
resulting from an extinguishment or other release of this Restriction will be distributed only after complying with the terms of any gift, grant, or other funding requirements, including
any requirements of the CPA, if applicable.
Grantor/Grantee Cooperation Regarding Public Action. Whenever all or part of the Premises or any interest therein is taken by public authority other than Grantor under power of eminent
domain or other act of other public authority, then the Grantor and Grantee shall cooperate in recovering full value or all direct and consequential damages resulting from such action.
All related expenses incurred by the Grantor and Grantee under this section shall first be paid out of any recovered proceeds, and the remaining proceeds shall be distributed between
the Grantor and Grantee in accordance with Article XV.B., after complying with the terms of any law, gift, grant, or funding requirements, including any requirements of the CPA. If a
less than fee interest is taken, the proceeds shall be equitably allocated according to the nature of the interest taken. The Grantee shall use its share of the proceeds like a continuing
trust in a manner consistent with the conservation purposes of this grant.
XV. NONMERGER: Grantee agrees that it will not take title to any part of the Premises without having first assigned this Restriction, pursuant to Article X, to a non-fee holder to ensure
that merger does not occur and that this Restriction continues to be enforceable by a non-fee owner.
XVI. SEVERABILITY: If any court of competent jurisdiction shall hold that any section or provision of this Restriction is unenforceable, the remainder of this Restriction shall not
be affected.
XVII. MISCELLANEOUS PROVISIONS:
A. Controlling Law: The interpretation and performance of this Restriction shall be governed by the laws of the Commonwealth of Massachusetts.
B. Liberal Construction: Any general rule of construction to the contrary notwithstanding, this Restriction shall be liberally construed in favor of the grant to affect the purposes
of this Restriction and the policies and purposes of Sections 31- 33 of Chapter 184 of the Massachusetts General Laws. If any provision in this instrument is found to be ambiguous, an
interpretation consistent with the purposes of this Restriction that would render the provision valid shall be favored over any interpretation that would render it invalid.
C. Entire Agreement: This instrument sets forth the entire agreement of the parties with respect to the Restriction and supercedes all prior discussions, negotiations, understandings,
or agreements related to the Restriction, all of which are merged herein.
D. Joint Obligation: The obligations imposed by this Restriction upon the parties that together comprise the "Grantor" and "Grantee" shall be joint and several.
E. Pre-existing Public Rights. Approval of this Restriction pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws by any municipal officials and by the Secretary
of Energy and Environmental Affairs is not to be construed as representing the existence or non-existence of any pre-existing rights of the public, if any, in and to the Premises, and
any such pre-existing rights of the public, if any, are not affected by the granting of this Conservation Restriction.
F. Notices. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other shall be in writing and either served personally
or sent by first class mail, postage pre-paid, addressed as follows:
To Grantor: Town of Barnstable, c/o Town Manager
367 Main Street, Hyannis MA 02601
To Grantee: Cotuit Fire District, Board of Water Commissioners
4300 Falmouth Road
Cotuit, MA 02635
or to such other address as any of the above parties shall designate from time to time by written notice to the other or, if notice is returned to sender, to an address that is reasonably
ascertainable by the parties
G. Subordination: The Grantor shall record at the Barnstable Registry of Deeds simultaneously with this Restriction all documents necessary to subordinate any mortgage, promissory
note, loan, lien, equity credit line, reference assignment of mortgage, lease, financing statement or any other agreement which gives rise to a surety interest affecting the Premises.
H. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction of interpretation.
XIII. EFFECTIVE DATE: This Restriction shall be recorded in a timely manner. Grantor and Grantee intend that the restrictions arising hereunder take effect on the day and year this Restriction
is recorded in the official records of the Barnstable County Registry of Deeds, after all signatures required by Massachusetts General Law, Chapter 184, Section 32 have been affixed
hereto.
Attached hereto and incorporated herein are the following:
Signatures:
Grantor and Approvals – Town of Barnstable: Town of Barnstable Town Council & Town Manager
Grantee Acceptance – Cotuit Fire District, Board of Water Commissioners
Approval: Secretary of Energy and Environmental Affairs
Exhibits:
A. Description of the Premises
B. Reduced Copy of Recorded Plan of the Premises
C. Town Council Ordinance
D. Cotuit Fire District, Vote
APPROVAL OF THE GRANT
TOWN OF BARNSTABLE
TOWN COUNCIL
At a public meeting duly held on ___________2022, the Town Council of the Town of Barnstable, Massachusetts, voted to approve and grant the foregoing Conservation Restriction to the
Cotuit Fire District, pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws and hereby grants the foregoing Conservation Restriction.
TOWN COUNCIL PRESIDENT:______________________
Barnstable, ss COMMONWEALTH OF MASSACHUSETTS
On the day of , 2022, before me, the undersigned notary public, personally appeared ____________, the person whose name is signed on the document and proved to
me through satisfactory evidence of identification, which was personal knowledge of identity, and who being by me duly sworn did say that he is the President of the Town Council of the
Town of Barnstable; that he is duly authorized to act on behalf the Town Council; and he acknowledged the foregoing instrument to be the free act and deed of Town of Barnstable Town
Council.
Notary Public
My Commission Expires:
APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, hereby approve the foregoing Conservation Restriction to Cotuit Fire District, pursuant to Section 32 of Chapter
184 of the Massachusetts General Laws.
TOWN OF BARNSTABLE
TOWN MANAGER:
______________________
Mark S. Ells
Barnstable, ss
On the day of , 2022,before me, the undersigned notary public, personally appeared Mark S. Ells, the person whose name is signed on the document and proved to
me through satisfactory evidence of identification, which was personal knowledge of identity, and who being by me duly sworn did say that he is the Town Manager of the Town of Barnstable;
that he is duly authorized to act on behalf the Town of Barnstable and he acknowledged the foregoing instrument to be his free act and deed.
______________________
Notary Public
My Commission Expires
ACCEPTANCE OF GRANT by COTUIT FIRE DISTRICT
At a public meeting duly held on ______________, 2022, the Board of Water Commissioners of the Cotuit Fire District, acting pursuant to the authority granted under Article ____ of the
Special District Meeting held on ____ ___, 2022, voted to accept the above Conservation Restriction from the Town of Barnstable.
COTUIT FIRE DISTRICT
By: Board of Water Commissioners
_____________________________
_____________________________
_____________________________
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss.
On this ____ day of ___________________, 2022, before me, the undersigned Notary Public, personally appeared ________________________, and proved to me through satisfactory evidence
of identification, which was personal knowledge of identity, to be the person whose name is signed on the document and acknowledged to me that he signed it voluntarily for its stated
purpose on behalf of the Cotuit Fire District.
Notary Public
My commission expires:
APPROVAL BY
DEPARTMENT OF ENVIRONMENTAL PROTECTION
The undersigned, Commissioner, Massachusetts Department of Environmental Protection of the Commonwealth of Massachusetts, hereby certifies that the foregoing Conservation Restriction
to the Cotuit Fire District, acting by and through its Water Commissioners, has been approved in the public interest pursuant to Massachusetts General Laws, Chapter 184, Section 32.
Dated: ________________, 2022 ____________________________
Commissioner
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss:
On this day of , 2022, before me, the undersigned notary public, personally appeared ______________________ and proved to me through satisfactory
evidence of identification which was personal knowledge to be the person whose name is signed on the proceeding or attached document, and acknowledged to me that he signed it voluntarily
for its stated purpose as Commissioner of MassDEP.
______________________________
Notary Public
My Commission Expires:
APPROVAL BY
SECRETARY OF EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of the Executive Office of Energy and Environmental Affairs of the Commonwealth of Massachusetts, hereby certifies that the foregoing Conservation Restriction
to the Cotuit Fire District, acting by and through its Water Commissioners, has been approved in the public interest pursuant to M.G.L. Chapter 184, Section 32.
Date: , 2022
, Secretary
Executive Office of Energy
and Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
On this ___ day of ___, 2022, personally appeared the above-named , and proved to me through satisfactory evidence of identification, which
was personal knowledge of identity, to be the person whose name is signed on the document and acknowledged to me that s/he signed it voluntarily for its stated purpose as Secretary of
Energy and Environmental Affairs for the Commonwealth of Massachusetts.
Notary Public
My commission expires:
CONSERVATION RESTRICTION
on land owned by
TOWN OF BARNSTABLE
in Cotuit (Barnstable), Massachusetts
EXHIBIT A
Description of the Premises
The Premises is shown on a plan entitled “__________________________” (to be inserted)
A reduced copy of the CR Plan is attached hereto as Exhibit B.
Street Address: 140 Old Oyster Road, Cotuit, MA.
For Grantor’s title, see Deed recorded in the Barnstable County Registry of Deeds in Book _______Page ___.
EXHIBIT B
Sketch Plan of Premises (needs land survey)
5.5 acres under Conservation Restriction
EXHIBIT C
Town Council Ordinance
(to be inserted)
EXHIBIT D
Attested Copy of Cotuit Fire District District Meeting Vote
(to be inserted)
COTUIT SCHOOL LAND CONSERVATION RESTRICTION
BARNSTABLE MA
5/10/2022
COTUIT SCHOOL FIELD AND FOREST CONSERVATION RESTRICTION
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