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Home My WebLink AboutFINAL DRAFT (MAJOR) AMENDMENT TO REGULATORY AGREEMENT 5/9/2022FIRST MAJOR AMENDMENT TO REGULATORY AGREEMENT This REGULATORY AGREEMENT AMENDMENT (this “Amendment”) is made as of the day of 2022 by and between CapeBuilt Pleasant Street, LLC, a Massachusetts Limited Liability Company with a mailing address of 6 Chestnut Street, Amesbury, MA 01913 (the “Developer”), and the Town of Barnstable, a Massachusetts municipal corporation with a mailing address of 367 Main Street, Hyannis, MA 02601 (the “Town”). WITNESSETH: WHEREAS, the Developer and the Town entered into a certain Regulatory Agreement dated January 26, 2018, and recorded in Book 31057 Page 63 at the Barnstable County Registry of Deeds (the “Regulatory Agreement”) pursuant to Section 240-24.1 of the Barnstable Zoning Ordinance and Section 168 of the Barnstable Code for redevelopment of the properties known and numbered as 24, 28, 43, 44, 53, 56, 64 and 66 Pleasant Street and 86 South Street, Hyannis, Massachusetts, known as RA2017-003 Sea Captains Row (the “Project”); and WHEREAS, the Developer and the Town entered into a Minor Amendment to Regulatory Agreement for the Project dated December 30, 2021, and recorded in Book 34800 Page 279 of the Barnstable County Registry of Deeds; and WHEREAS, the Developer desires to add two additional one-bedroom walk-out apartments to the basements of Buildings A and B, thereby increasing the total unit count to sixty-two (62) units; and WHEREAS, the amendments hereby proposed to the Regulatory Agreement are intended to create two (2) additional housing units to accommodate persons who will serve as on-site property managers for the residents of Buildings A and B; and WHEREAS, the proposed increase in the total unit count to 62 would require a total of 92 parking spaces pursuant to the Town of Barnstable Zoning Ordinance and Developer is proposing 88 total parking spaces, which includes 70 standard spaces, 7 compact spaces and 11 on-street spaces; and WHEREAS, the Regulatory Agreement provides for the construction of two (2) studio rental apartments designated for residence by tenants with an income of not more than 50% of area median income (the “Affordable Units”); and WHEREAS, Section 6. d. ii. of the Regulatory Agreement provided: In order to protect the perpetuity of the affordable units, a Local Initiative Program Regulatory Agreement shall be reviewed and approved by the Town Attorney’s office and recorded prior to the issuance of the building permits; and WHEREAS, the Developer applied for and was issued Building Permits for the construction of forty-four apartments in Buildings “C”, “D”, “E”, “F” and “G” as shown on the Development Plans listed in and made part of the Regulatory Agreement; and WHEREAS, the Developer has completed construction of Building C and has substantially completed construction on Buildings D, E, F & G; and WHEREAS, the Developer and the Town desire for the Town to timely realize all benefits identified in the Regulatory Agreement, including the occupancy of both the Affordable Units and market-rate units; and WHEREAS, the proposed occupancy of Affordable Units was to be located in studio apartments designated for occupancy by “artists” as originally provided in the Regulatory Agreement, however, there may be significant challenges, including: (1) placing qualified low to moderate income “artists” in residence as defined by the Department of Housing and Community Development; and (2) meeting the residential needs of individuals or families within the limited confines of studio apartments; and WHEREAS, the Developer hereby proposes eliminating the “artist” requirement for the two (2) Affordable Units required under the Regulatory Agreement, increasing the size of the two (2) Affordable Units from “studio” to one-bedroom apartments, and to locate the two (2) one- bedroom Affordable Units on a continuing and “floating” basis within Buildings C, D, E, F and G; and WHEREAS, the provision of one-bedroom rather than studio Affordable Units, without “artist” restrictions, better serves the Town’s affordable housing needs and the objectives of Chapter 9, Article I; and WHEREAS, in accordance with the provisions of Chapter 9, Article I the Developer would be required to provide six (6) affordable rental units to individuals or households with a total annual income that does not exceed 65 percent of the median annual income for Barnstable County, as determined annually by the United States Department of Housing and Urban Development; and WHEREAS, the Redevelopment, as hereby proposed for amendment, retains and provides the same site design, traffic safety and community benefits as acknowledge and set forth in the Regulatory Agreement; and WHEREAS, the Town Manager is authorized to execute substantial amendments to the Regulatory Agreement, such as the amendments to the Regulatory Agreement proposed herein by the Developer after receiving written concurrence from the Planning Board and the Town Council and qualified applicant that said substantial amendments are agreed to pursuant to Section 168-5 of the Barnstable Code; and WHEREAS, the Amendment hereby proposed was reviewed by the Town of Barnstable Site Plan Review Committee on April 19, 2022 for Informal Site Plan Review (SPR 051-22). The Site Plan Review Committee voted to find the modifications proposed by this Amendment approvable subject to the grant of an Amendment to the Regulatory Agreement and other conditions; and WHEREAS, the Amendment hereby proposed was reviewed by the Town of Barnstable Site Plan Review Committee on April 21, 2022 for Formal Site Plan Review (SPR 051-22). The Site Plan Review Committee voted to find the modifications proposed by this Amendment approvable subject to the grant of an Amendment to the Regulatory Agreement and other conditions; and WHEREAS, the Amendment hereby proposed was considered by the Planning Board at a Public Hearing on April 25, 2022, at which time the Planning Board _________________; and WHEREAS, the Amendment hereby proposed was considered by the Town Council at a Public Hearing on (May 19, 2022), at which time the Council ___________________________; and NOW, THEREFORE, in consideration of the agreements and covenants set forth hereinafter, and other good and valuable consideration, the receipt and sufficiency of which each party hereto acknowledges to the other, the Developer and the Town do hereby enter into this Amendment as a major amendment to the Regulatory Agreement and hereby agree and covenant as follows: 1. The Town hereby grants waivers from the Zoning Ordinance and Town Code which shall be defined as Exhibit A. 2. Total Unit Count: A. Total unit count for the Redevelopment shall be increased from 60 to 62 units, with the addition of one basement “walk out” unit added to each of Building A and B for a total of seven (7) units in each of Building A and B; the total permitted footprint area of the Redevelopment shall be 21,201 square feet; the total gross floor area of the Redevelopment shall be 85,167 square feet; a total of 88 parking spaces shall be provided, which includes 70 standard spaces, 7 compact spaces and 11 on-street spaces. 3. Affordable Units: A. A Local Initiative Program Regulatory Agreement for two (2) one-bedroom apartments at 50% of Area Median Income, in place of the two (2) studio apartments at 50% of Area Median Income originally stipulated in the Regulatory Agreement Affordable Units, to be located on a “floating basis” within Buildings C through G, shall be prepared by Developer, reviewed and approved by the Town Attorney’s office and submitted to the Massachusetts Department of Housing and Community Development prior to the issuance of building permits for “Building A” and “Building B” as shown on the Development Plans; said Affordable Units shall be made available to applicants without regard as to whether applicants identify as “artists” and all reference to “Cultural Units” as pertaining to the Affordable Units shall be stricken; the foregoing shall fully satisfy Developer’s Affordable Unit obligations. B. The Local Initiative Program Regulatory Agreement shall be approved by the Massachusetts Department of Housing and Community Development and formally recorded prior to the issuance of Certificates of Occupancy for “Building A”, “Building B”, “Building H” and “Building PP” as shown on the Development Plans. C. In the interests of clarity, prior to Developer’s submission of Local Initiative Program Regulatory Agreement for the two Affordable Units, and prior to Developer obtaining Certificates of Occupancy for the two Affordable Units, the Building Commissioner may: i. issue Certificates of Occupancy for Buildings “C”, “D”, “E”, “F” and “G” as shown on the Development Plans; and ii. issue building permits for Building “PP” shown on the Development Plans. 4. The Town and the Developer consent to the recording of this Major Amendment to Regulatory Agreement with the Barnstable County Registry of Deeds. 5. Except as expressly amended hereby, all other terms and conditions of the RA2017-003 Sea Captains Row Regulatory Agreement shall remain in full force and effect. 6. In order to expedite the execution of this Agreement, electronic and/or telecopied signatures may be used in place of original signatures to this Amendment. The Town and the Developer intend to be bound by any such electronic and/or telecopied signatures, are each aware that the other party will rely on such electronic and/or telecopied signatures, and hereby waive any defense to the enforcement of the terms of this agreement based on the form of signature. 7. This Amendment may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts shall together constitute one and the same instrument. Delivery of executed facsimile counterparts of this Amendment shall be deemed effective delivery hereof. 8. Site Plan Conditions and updated plan shall be incorporated as follows: A. Substantially in conformance with the approved plan entitled “Master Layout Plan” Sheet C3.0 prepared by Baxter Nye Engineering & Surveying, revision dated March 22, 2022. [Signature page follows] IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their authorized representatives as of the date first written above. DEVELOPER: TOWN: CAPEBUIT PLEASANT STREET, LLC TOWN OF BARNSTABLE a Massachusetts Limited Liability Company a Massachusetts Municipal Corporation By: By: Robert L. Brennan, Jr., Manager Mark Ells, Town Manager COMMONEWEALTH OF MASSACHUSETTS On this day of ______, 2022, before me, the undersigned Notary Public, personally appeared Robert L. Brennan, Jr. of CapeBuilt Pleasant Street, LLC, and proved to me through satisfactory evidence of identification, which was , to be the same person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily and for its stated purpose as Manager of CapeBuilt Pleasant Street, LLC. Notary Public My Commission Expires: COMMONEWEALTH OF MASSACHUSETTS On this day of ______, 2022, 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 same person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily and for its stated purpose as Town Manager of the Town of Barnstable. Notary Public My Commission Expires: