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HomeMy WebLinkAboutDRAFT Second Minor Amendment to Regulatory Agreement SECOND MINOR AMENDMENT TO REGULATORY AGREEMENT THIS SECOND MINOR AMENDMENT TO REGULATORY AGREEMENT (this “Regulatory Second Minor Amendment”) is made as of the ___ day of August, 2021, by and among Flagship Estates Hyannis, LLC (“Flagship Estates”) a Massachusetts limited liability company with a mailing address of 100 Grandview Road, Suite 312, Braintree, MA 02184, and the Town of Barnstable, a municipal corporation with a mailing address of 367 Main Street, Hyannis, MA 02601 (hereafter, the “Town”). W I T N E S S E T H: WHEREAS, Daniel Adams as Developer and the Town entered into a regulatory agreement October 16, 2006, recorded with the Barnstable County Registry of Deeds (the “Registry”) in Book 21452, Page 74 (the “Regulatory Agreement”) concerning the property known as and numbered 320 Stevens Street, Hyannis (the “Property”); WHEREAS, in the interim, ownership of the Property was transferred from the therein referenced then owner, Ginsberg Asset Management, LLC to the current owner, Flagship Estates (also referred to as the “Developer”); WHEREAS, Flagship Estates and the Town agreed to certain minor modifications to the Original Agreement, resulting in a First Amendment to the Regulatory Agreement, which amendment is dated July 23, 2008 and recorded with the Registry on July 25, 2008 in Book 23065, Page 162 (the “Regulatory First Minor Amendment”); WHEREAS, the Regulatory Agreement, as amended, authorizes the development of the Property through the construction of twenty-nine (29) residential condominium units (the “Development”); WHEREAS, the Regulatory Agreement, as amended, requires the Developer to construct the Development consistent with the plans entitled “Site Plan, 320 Stevens Street, Hyannis, Massachusetts,” prepared for Ginsberg Asset Management LLC, dated December 12, 2005 as revised through March 14, 2006, sheets 1 through 8 and AS BUILT AND PHASE 2 LANDSCAPE PLAN,” dated April 28, 2008 and last revised April 30, 2008 (the “Approved Plans”); WHEREAS, presently, six of the seven buildings (Buildings A-D, F, and G) have been constructed containing a total of 24 residential units, and the foundation for Building E exists, but the building was never constructed; WHEREAS, the Developer no longer intends to construct Building E as shown on the Approved Plans, and instead, proposes to remove the existing foundation and construct, in its place, eight (8) new paved parking spaces to support the existing condominiums, a new bike rack, and grasses and plantings, all as shown on the plan attached hereto as Exhibit A entitled “Site and Landscape Sketch Plan,” prepared by Cape & Islands Engineering, dated June 11, 2021 (the “Revised Building E Plan”); 2 WHEREAS, the Developer has conveyed two of the on-site residential units to the Barnstable Housing Authority to be used for affordable housing (the “Development’s Affordable Housing Units”); WHEREAS, based on the reduction in the total number of units within the Development to twenty-four (24) units, Chapter 9 of the Barnstable Code (Barnstable Inclusionary Housing Ordinance) requires two (2) affordable housing units to be provided onsite; WHEREAS the Development’s Affordable Housing Units comply with the requirements of Chapter 9 of the Barnstable Code; and WHEREAS, Chapter 168-5 of the Code of the Town of Barnstable allows the Town Manager to approve, on behalf of the Town, minor amendments to a regulatory agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged each party to the other, the Developer and Town do hereby agree to amend the Regulatory Agreement, as amended by the Regulatory First Minor Amendment, as follows: 1. Paragraph 2 shall be modified by adding the following language at the end of Paragraph 2: “with the following modifications: a. Building E as shown on the plans will not be constructed, and the existing foundation of Building E will be removed; b. In place of Building E, the Developer will construct eight (8) new paved parking spaces to support the 24 existing condominiums; c. In addition to the eight (8) new paved parking spaces, the Developer will install a five-bike single sided bike rack and associated landscaping. These proposed modifications are shown on the plan entitled “Site and Landscape Sketch Plan,” prepared by Cape & Islands Engineering, dated June 11, 2021.” 2. Paragraph 10 shall be modified by adding the following language at the end of Paragraph 10: “Notwithstanding the language of Paragraph 10, the Developer shall construct the modifications to Building E, as set forth in the plans referenced in Paragraph 2, within one (1) year from the effective date of the Regulatory Second Minor Amendment.” 3. Paragraph 11 shall be modified by adding the following language at the end of Paragraph 11: “as modified by the Site Plan Review Committee letter dated July 2, 2021 to Flagship Estates concerning Building E.” 4. All terms and conditions of the Regulatory Agreement, as amended, relating to the affordable housing unit requirements have been satisfied by the Development’s Affordable Housing Units. 3 5. This Regulatory Second Minor Amendment may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute one and the same instrument. Delivery of executed facsimile counterparts of this Regulatory Second Minor Amendment shall be deemed effective delivery hereof. [Signature pages follow.] 4 IN WITNESS WHEREOF, the parties have caused this Regulatory Second Minor Amendment to be executed by their authorized representatives as of the date first written above. FLAGSHIP ESTATES HYANNIS, LLC a Massachusetts limited liability company By: ____________________________ Name: Jeffrey C. O’Neill Title: Manager COMMONWEALTH OF MASSACHUSETTS ___________________, ss. On this ____ day of ______________, 2021, before me, the undersigned notary public, personally appeared _______________________ and proved to me through satisfactory evidence of identification, which was _________________________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose as _______________________. ___________________________________ Notary Public My Commission expires: _______________ 5 TOWN: TOWN OF BARNSTABLE By: __________________________ Mark S. Ells, Town Manager COMMONWEALTH OF MASSACHUSETTS Barnstable , ss. On this ____ day of ______________, 2021, before me, the undersigned notary public, personally appeared Mark Ells, Town Manager of the Town of Barnstable, and proved to me through satisfactory evidence of identification, which was _________________________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose as Town Manager for the Town of Barnstable. ___________________________________ Notary Public My Commission expires: _______________ 5225825.3